On Point: 46. WI Court of Appeals

Tina B. v. Richard H., 2014 WI App 123; case activity

The circuit court lost competency to decide a guardianship proceeding under § 54.34 because it failed to decide the case within the statutory time limit, but the circuit court’s decisions in a related guardianship proceeding under § 48.977 are affirmed.

Nicole Marie Thomas v. Korry Ardell, 2014AP295, District 4, 11/13/14 (not recommended for publication); case activity

The circuit court did not erroneously exercise its discretion in refusing to admit cell phone records because the proponent of the evidence didn’t provide a proper foundation by presenting either the testimony of a qualified witness or a proper certification proving authenticity.

State v. Michael C. Hess, 2014AP268-CR, District 3, 11/11/14 (not recommended for publication); case activity

While the trial evidence was sufficient to support the jury’s verdict that Hess possessed methamphetamine, Hess is entitled to a new trial in the interest of justice because the verdict may have been influenced by evidence offered to proved drugged-driving charges that were dismissed during trial.

State v. Frank M. Zdzieblowski, 2014 WI App 130; case activity

The prosecutor during voir dire elicited a promise from prospective jurors that they would convict if the State proved the elements of the charged crimes beyond a reasonable doubt, and then reminded the jurors of that promise in his rebuttal closing argument. The court of appeals holds the prosecutor’s unobjected-to voir dire questioning and rebuttal closing argument neither rose to the level of plain error nor warranted a new trial in the interest of justice.

Court of appeals certification request, certification granted 12/18/14, affirmed, 2015 WI 75; case activity

Issue Presented (from Certification)

We certify this case to the supreme court because we are uncertain which of two decisions is controlling: State v. Wulff, 207 Wis. 2d 143, 557 N.W.2d 813 (1997), or State v. Beamon, 2013 WI 47, 347 Wis. 2d 559, 830 N.W.2d 681. The issue is whether, under the circumstances here, a sufficiency of the evidence challenge requires us to measure the evidence against the instructions the jury received, as the court did in Wulff, or instead against statutory requirements, as the court did in Beamon.

State v. Patrick J. Lynch, 2015 WI App 2, petition for review granted 3/16/15, affirmed by a divided court, 2016 WI 66; case activity

Lynch was entitled to an in camera review of the complainant’s treatment records because there is a reasonable likelihood the records will reveal the complainant exhibits ongoing symptoms associated with PTSD that affect her ability to recall and describe pertinent events, and that she failed to report Lynch’s alleged sexual abuse of her to treatment providers, at least as a child.

State v. Ryan P. O’Boyle, 2014AP80-CR, District 1, 11/4/14 (not recommended for publication); case activity

O’Boyle’s claims of ineffective assistance of counsel are rejected because trial counsel’s performance wasn’t deficient.

State v. Arik James Ulwelling, 2014AP814-CR, District 3, 11/4/14 (1-judge decision; ineligible for publication); case activity

Police had probable cause to stop Ulwelling for violating § 346.14(1), which prohibits motor vehicle operators from following another vehicle “more closely than is reasonable and prudent”—i.e., tailgating.

City of Kaukauna v. Grant R. Loescher, 2014AP954, District 3, 11/4/14 (1-judge decision; ineligible for publication); case activity

Loescher’s 1997 conviction for first-offense OWI is not void because it was properly counted as a first offense despite his OWI conviction in 1992.

State v. Lawrence L. Holmes, 2013AP2342-CR, District 4, 10/30/14 (not recommended for publication); case activity

Because Holmes can’t show that the court would have granted his motion to dismiss the misdemeanor charges in the case with prejudice, he hasn’t shown he was prejudiced by trial counsel’s advice to enter into a plea agreement because he was going to lose the motion to dismiss.