On Point: 46. WI Court of Appeals

State v. Damon R. Lowe, 2012AP555-CR, District 2, 9/18/13; court of appeals decision (not recommended for publication); case activity

Lowe, charged with sexual and physical abuse of V.A.L., his adopted daughter, sought to present evidence that she was motivated to fabricate her allegations because she wanted to get away from her overly strict father, who restricted her use of cell phones, her internet use, and her choice of friends.

State v. George R. Ferrell, Appeal No. 2012AP2602, 9/26/13, (1-judge; ineligible for publication); case activity

A state trooper does not need evidence such as odors, admissions or containers to have probable cause to arrest for OWI.  These facts will do the trick:

 ¶12 . . . [T]he State Patrol received several reports that Ferrell was driving erratically and dangerously.  Thiede observed that Ferrell was speeding and watched Ferrell swerve within his lane. 

State v. Greg LaPean, 2012AP2309-CR, District 3, 9/26/13 (not recommended for publication); case activity

This case boils down to whether LaPean transferred encumbered farm equipment with intent to defraud his lender, Security State Bank, in violation of § 943.84(2)(a); Wis JI-Criminal 1470.  LaPean asserted the real controversy was not tried due to an incomplete instruction on intent, there was insufficient evidence to support the jury’s finding of intent,

Winnebago County v. Brady E. Bauman, 2013AP1075, District 2, 9/18/13; court of appeals decision (1-judge; ineligible for publication); case activity

After encountering a deputy in a parking lot, Bauman stated he had been drinking, had driven a half-hour before, and had pulled into the parking lot because he felt impaired. The deputy asked,  “Are you telling me that you are impaired and you were driving in an impaired state?” Bauman answered “yes.” The deputy had probable cause to arrest Bauman:

¶4        …. 

State v. Glen G. Bowe, 2013AP238-CR, District 3, 9/17/13; court of appeals decision (1-judge; ineligible for publication); case activity

The lack of any colloquy regarding Bowe’s waiver of his right to counsel when he pled in his prior OWI case does not by itself make the prima facie showing necessary for a collateral attack on the prior conviction because State v. Ernst,

State v. Kenneth B. Burmeister, 2013AP1016-CR, District 3, 9/17/13; court of appeals decision (1-judge; ineligible for publication); case activity

Police lawfully extended a traffic stop to conduct field sobriety tests because the odor of alcohol, the driver’s initial “deflective answer”  to the question of whether he had been drinking, and his subsequent admission to drinking gave the police reasonable suspicion to believe the driver was impaired:

¶11      We reject Burmeister’s assertion that the facts observed by Logan suggest only the presence of alcohol.

State v. Jerry Lee Carson, 2012AP2616-CR, District 1, 9/17/13; court of appeals decision (not recommended for publication); case activity

Ineffective assistance of trial counsel

Carson, convicted of second degree recklessly endangering safety, claimed his trial lawyer was ineffective on various grounds. The court of appeals holds counsel was not ineffective for failing to:

• Demand a speedy trial. Carson was not prejudiced by the delay beyond the statutory speedy trial deadlines.

State v. Omar J. Smith, 2012AP863-CR, District 1, 9/10/13; (not recommended for publication); case activity

A jury convicted Smith of first-degree reckless homicide while armed as party to a crime and a host of other crimes.  Two issues are noteworthy.

Miranda-Edwards issue:  Police began questioning Smith while he was in custody.  He invoked his right to counsel, so they stopped. They re-initiated questioning (with fresh Miranda warnings) during which Smith said things like “I kind of want a lawyer present,

State v. Gary Wieczorek, 2012AP2217-CR, District 3, 9/10/13; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court had previously held that Wieczorek was unlawfully seized by the police on his front porch, but the court of appeals reversed that holding and remanded the case for further proceedings. (¶¶2-4). On remand, Wieczorek again alleged the seizure was unlawful because there were no exigent circumstances.

State v. Samantha S., 2013AP1503 & 2013AP1504, District 1, 9/10/13; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP1503; 2013AP1504

During closing arguments at the fact-finding hearing the guardian ad litem referred to Samantha’s failure to keep visitation appointments and said this failure confused the children, who as a consequence were becoming attached to the foster caregivers. (¶2). The court holds this statement did not amount to an improper “golden rule”