On Point blog, page 241 of 485
Evidence insufficient to sustain order continuing protective placement under ch. 55
Wood County Human Services v. James D., 2013AP1378, District 4, 11/7/13; court of appeals decision (1-judge; ineligible for publication); case activity
One of the elements of protective placement is that the person has a disability that is permanent or likely to be permanent, § 55.08(1)(d). The County failed to prove this element by clear and convincing evidence because its psychological expert was unable to testify that James suffered from a permanent or likely to be permanent disability,
Police had reasonable suspicion to stop driver to investigate both OWI and theft
Sun Prairie v. Brent D. Curry, 2013AP1206, District 4, 11/7/13; court of appeals decision (1-judge; ineligible for publication); case activity
Police had reasonable suspicion to stop Curry, who was driving on a residential street at 3:40 a.m., turned around, sped past the officer’s car, and then turned at a high rate of speed into the driveway of a residence. He then sat in the car for a few minutes before getting out and walking up the driveway;
Falling asleep behind the wheel constitutes inattentive driving under § 346.89(1)
Dodge County v. Giovanina Louise Ray, 2013AP1588, District 4, 11/7/13; court of appeals decision (1-judge; ineligible for publication); case activity
The general prohibition against inattentive driving in § 346.89(1) covers falling asleep behind the wheel. Ray argued the statutory language prohibiting a person from being “so engaged or occupied as to interfere with the safe driving” of the vehicle required engagement or occupation with something “external” and doesn’t apply to sleeping because,
Erroneous admission of other acts evidence was harmless; letter written by attorney to victim at defendant’s behest was properly admitted
State v. Jeffrey A. Adamczak, 2013 WI App 150; case activity
Admission of other acts evidence
Adamczak was charged with sexual exploitation by a therapist in violation of Wis. Stat. § 940.22 for having sexual contact with Sabrina. He testified the contact occurred, but only after the patient-therapist relationship was over. (¶¶3, 5). Before trial the state moved to admit the testimony of Sarah and Gail,
Defendant can’t make hay with claims the trial court erred by excluding certain evidence and rejecting his proposed jury instructions
State v. Richard P. Selenske, 2013AP1403-CR, District 3, 11/5/13; court of appeals decision (1-judge; ineligible for publication); case activity
A dispute about a contract for the purchase of standing hay grew into a misdemeanor theft charge when Selenske, the farmer who owned the hay fields, would not let Kern, the farmer who purchased the hay, pick up the last of the bales. The bare-bones contract Selenske wrote didn’t include a completion date,
Evidence sufficient to support jury’s sexual assualt verdict against gynecologist; joinder of claims upheld
State v. Evan K. Saunders, 2013AP1229-CR, District 1, 11/5/13 (1 judge; ineligible for publication); case activity
This case concerns a gynecologist’s sexual assault of 4 different patients over 2 1/2 years.
Sufficiency of evidence: Fourth degree sexual assault requires proof that the defendant had “sexual contact” with the victim without her consent. Wis. Stat. § 940.225(3m). And “sexual contact,” among other things, requires evidence that the defendant acted either with intent to harm the victim,
Trial court’s findings of fact in support of reasonable suspicion were not clearly erroneous
State v. Nick A. Lutter, 2012AP2586, District 4, 10/31/13; court of appeals decision (1-judge; ineligible for publication); case activity
The circuit court’s findings of fact at the suppression hearing were not clearly erroneous, and they supported the court’s conclusion there was reasonable suspicion to stop Lutter. Among other reasons for the stop, the state trooper cited Lutter’s crossing the fog line twice and driving onto the fog line once.
OWI stop reasonable based on anonymous tip and confirmed veering over fog line
State v. Sandra Biancardi, 2013AP1351, District 2, 10/30/13 (1-judge, ineligible for publication); case activity
Biancardi was convicted of OWI. On appeal she argued that police unlawfully stopped her based on an uncorroborated, anonymous tip contrary to Illinois v. Gates, 462 U.S. 213 (1983). The court of appeals, citing State v. Post, 2007 WI 60, ¶24, 301 Wis. 2d 1,
Terry stop — reasonable suspicion based on presence at house that was subject to surveillance and scene of earlier transaction. Jury instruction — PTAC; identifying person defendant was alleged to be aiding or abetting.
State v. Roland Derliel Graham, 2013AP440-CR, District 1, 12/29/13; court of appeals decision (not recommended for publication); case activity
Reasonable suspicion for seizing defendant
¶15 We conclude that under the totality of the circumstances described by [Officer] Wiesmueller, there was reasonable suspicion to stop Graham. Graham was stopped on property that had been the subject of DEA and police surveillance for suspected drug activity. Earlier on the day of Graham’s arrest,
Sentencing — consideration of dismissed charge. Resisting/obstructing, § 946.41 — sufficiency of evidence.
State v. Earnest Lee Nicholson, 2013AP722-CR, District 1, 10/29/13; court of appeals decision (1-judge; ineligible for publication); case activity
Nicholson was arrested for felony battery of his girlfriend, Marnice Franklin, but the battery charge was dismissed after Franklin failed to appear to testify at trial; Nicholson was also charged with resisting an officer, and that charge proceeded to trial and a guilty verdict. (¶¶2-4). At sentencing on the resisting charge the judge made extensive remarks concerning the alleged battery,