On Point: 46. WI Court of Appeals

State v. Ervin Thomas, 2013 WI App 78; case activity

The trial court properly calculated the 180-day speedy trial time limit from the prosecutor’s actual receipt of Thomas’s demand for disposition, and not from the receipt of the demand three days earlier by the county courthouse’s “Information Management Services Distribution” [sic] office. Under § 976.05(3)(a) and State v. Whittemore,

Polk County v. Norman S., 2012AP2801, District 3, 5/29/13; court of appeals decision (1-judge, ineligible for publication); case activity.

Given the court of appeals’s highly deferential standard of review for jury verdicts, it doesn’t throw them out very often.  In this case, it did.   A jury found by clear and convincing evidence that Norman S. was unable to provide necessary care so as to seriously endanger the physical health of his son,

State v. Vicente Paul Vento, 2012AP1763-CR, District 1, 5/21/13; court of appeals decision (not recommended for publication); case activity

Invoking its discretionary reversal power, the court of appeals holds Vento is entitled to a new trial in the interests of justice on the issue of his mental responsibility under Wis. Stat. § 971.15 because the trial court applied the wrong legal standard and based its verdict on speculative testimony from an expert:

¶28      We agree with Vento that there is a substantial probability that a new trial would produce a different result because he met his burden under Wis.

Winnebago County v. Gina A.R., 2013AP226, District 2, 5/22/13; court of appeals decision (1-judge; ineligible for publication); case activty

The court rejects Gina A.R.’s claim that the evidence at the final hearing was insufficient to show she  is mentally ill, a proper subject for treatment, and dangerous, noting that much of her argument discusses facts not in the record and that the undisputed facts supported the commitment order. (¶¶4-6).

State v. Tammy S. Camden, 2012AP1451, District 4, 5/23/13; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court concluded a driver’s speeding was legally justified after accepting her testimony that she exceeded the speed limit in order to get away from a vehicle following in close proximity and copying her every move. The court of appeals reverses, concluding the defense of legal justification or “necessity”

Langlade County DSS v. Michael P., 2013AP385, 2013AP386, & 2013AP387, District 3, 5/21/13; court of appeals decision (1-judge, ineligible for publication); case activity: 2013AP385; 2013AP386; 2013AP387

Sufficiency of evidence

Based on the entire record of the fact-finding hearing, the court of appeals concludes there was sufficient evidence that Michael P. failed to assume parental responsibility, despite his testimony tending to show he did assume responsibility:

¶26      …[I]t is clear that Michael did not have a “substantial parental relationship” with his children over the course of their lives. 

State v. Marquese H., 2013AP565, 2013AP566, & 2013AP567, District 1, 5/21/13; court of appeals decision (1-judge, ineligible for publication); case activity: 2013AP565; 2013AP566; 2013AP567

The circuit court properly exercised its discretion in terminating Marquese H.’s parental rights because it considered the factors under § 48.426(1). The court rejects Marquese’s specific claim that the circuit court erred because, under § 48.426(1)(c) and Darryl T.-H.

Dane County DHS v. John L.-B., 2013AP462, District 4, 5/16/13; court of appeals decision (1-judge, ineligible for publication); case activity

This decision rejects Dane County’s appeal from the dismissal of a TPR petition after a jury verdict in favor of the parent. Here’s the factual background:

Dane County filed a TPR petition against John L.-B. in January 2012, alleging failure to assume parental responsibility and six months of abandonment.

Court of appeals certification; case activity

Issue certified:

Is an OWI defendant’s right to confront the witnesses against him violated when a supervisor of the state crime lab testifies that a lab report prepared and certified by another, but unavailable, lab analyst establishes the defendant’s illegal blood alcohol concentration?  Does it make a difference that the lab supervisor said it was “his” opinion even though he did not perform any of the testing himself and simply noted that the unavailable analyst followed the proper protocol?

Village of Muscoda v. Samuel R. Anderson, 2012AP2216, District 4, 5/16/13; court of appeals decision (1-judge, ineligible for publication); case activity

Police had probable cause to administer a PBT where: the officer noticed an odor of intoxicants emanating from Anderson or his vehicle; Anderson had bloodshot eyes and slightly slurred speech and admitted he had consumed five drinks over the course of the night; and Anderson’s performance on the walk-and-turn and one-leg-stand tests suggested he might be intoxicated.