On Point blog, page 142 of 484

Evidence sufficient on time of driving for OWI

Fond du Lac County v. Christy Ann Kasten, 2017AP343, 10/18/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

The only real issue in this case is whether the court, in this bench trial, had sufficient evidence to conclude that Kasten had driven within three hours of her blood draw at 10:52 p.m. The court of appeals holds that it did:

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No error to empanel juror who had been on similar case week before

State v. Brad L. Conger, 2017AP860-CR, 10/18/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Brad Conger went on trial for an OWI and the associated PAC. His defense was an “alcohol curve” theory that the breath tests result did not reflect his true BAC at the time he was driving. His attorney moved to strike a juror who sat on another OWI/PAC case the preceding week–one featuring the same defense attorney, where the jury convicted on the PAC and apparently rejected the offered alcohol curve defense. The circuit court found the juror unbiased; the court of appeals now affirms.

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Circuit court may consider foster parents’ intent to allow contact with children after TPR is final

State v. M.P., 2016AP2104 & 2016AP2105, District 1, 10/17/17 (one-judge decision; ineligible for publication); case activity

At the dispositional hearing on the petition to terminate M.P.’s parental rights to his two children the court heard evidence that the foster parents intended to allow M.P. to continue to have contact with the children if his parental rights were terminated. (¶8). The court of appeals rejects M.P.’s contention that trial counsel was ineffective for failing to object to this evidence.

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Stop, frisk for weapons justified

State v. Marcellous D. Tally-Clayborne, 2016AP1912-CR, District 1, 10/17/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Tally-Clayborne challenges his carrying a concealed weapon conviction, arguing he was unlawfully stopped, detained and searched because police had no information suggesting he was involved in any illegal activity. The court of appeals holds both the stop and pat-down search were justified.

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Circuit court properly excluded defense evidence, appropriately questioned defendant

State v. Charles A. Page, 2017AP165-CR, District 4, 10/12/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Page claims that the circuit court erred when it classified evidence he sought to introduce as “other acts” evidence and then excluded the evidence because Page hadn’t filed a timely pretrial motion to admit the evidence. He also contends the circuit court abandoned its role as a neutral magistrate in its questioning of Page at trial. The court of appeals rejects the claims.

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May the 4th be with you: Another warrantless home entry authorized under the community caretaker doctrine

State v. Sierra Ann Desing, 2017AP490-491, 10/11/17, District 2, (not recommended for publication); case activity (including briefs)

A citizen informant told 911 that he saw Desing pulled over on the side of the road hanging out her door. He asked if she was okay and was told “yes,” but he later saw her driving erratically on the highway. Deputies went to her house, knocked “loudly,” received no response, discovered her back door and patio door open on May 28 at 7:30 a.m., saw her dog running loose in the backyard, and, fearing that she might be choking on her own vomit, entered the house and searched until they found her asleep in the basement.

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Probable cause to arrest found!

State v. Sarah A. Schmidt, 2017AP724-CR, District 2, 10/11/17 (one-judge decision; ineligible for publication); case activity (including briefs)

For operating while intoxicated, no less—even though there was scant evidence of impaired driving and the driver exhibited no slurred speech and apparently normal balance and motor coordination.

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Evidence sufficient to establish TPR grounds

Racine County Human Services Dep’t v. C.C., 2017AP750, District 2, 10/11/17 (one-judge decision; ineligible for publication); case activity

The evidence presented at the fact-finding hearing in C.C.’s TPR proceeding was sufficient to establish that she failed to assume parental responsibility under § 48.415(6).

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Evidence sufficient to establish disorderly conduct

City of New Richmond v. Warren Wayne Slocum, 2016AP1887, District 3, 10/11/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Slocum unsuccessfully challenges the sufficiency of the evidence used to find he violated a New Richmond municipal ordinance, § 50.88(a)(1), which tracks § 947.01(1).

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Checkpoint stop justified by “special needs” of law enforcement

State v. Damien Markeith Divone Scott, 2017 WI App 74; case activity (including briefs)

In this case of first impression in Wisconsin, the court of appeals holds that the stop of a car at a police checkpoint was justified by the “special needs” of law enforcement.

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