On Point: 46. WI Court of Appeals

court of appeals publication orders, 4/25/12

On Point posts from this list:

2012 WI App 42 La Crosse Tribune v. Circuit Court for La Crosse County

2012 WI App 46 State v. Lamont L. Travis

2012 WI App 47 State v. Matthew R. Steffes

2012 WI App 48 State v. Dennis R. Thiel

2012 WI App 49 Village of McFarland v.

State v. Shawn M. Klingelhoets, 2012 WI App 55 (recommended for publication); for Klingelhoets: Robert R. Henak; case activity

Intentionally Mistreating Animal, Resulting in Death, §§ 951.02 and 951.18(1) – Intent Element 

Intentionally mistreating an animal, resulting in the animal’s death, contrary to Wis. Stat. §§ 951.02 and 951.18(1), doesn’t require intent to kill:

¶17      In sum, the plain language of Wis. Stat. § 951.18(1) does not require a defendant to have intentionally mutilated,

State v. Samuel Curtis Johnson, III, 2011AP2864-CRAC, District 2, 4/18/12, WSC rev granted 11/14/12

court of appeals decision (not recommended for publication), supreme court review granted 11/14/12; for Johnson: Mark D.   Richards, Michael F. Hart, Craig S. Powell, Geoffrey R. Misfeldt; case activity

Shiffra-Green Procedure – Privileged Records – Remedy Where Witness Declines Consent for in Camera Review 

Johnson, charged with sexual assault of his stepdaughter T.S.,

State v. Clarence E. Brown, 2011AP2049-CR, District 1, 4/17/12

court of appeals decision (1-judge, not for publication); for Brown: Daniel R. Drigot; case activity

Carrying Concealed Weapon, § 941.23 (2009-10) – Facially Constitutional

The court upholds the constitutionality of the prior version of § 941.23, CCW, as not violating the right to bear arms (since-modified, to allow conceal-carry under specified circumstances, 2011 WI Act 35). 

State v. Thomas M. Pocian, 2012 WI App 58 (recommended for publication); for Pocian: Martin E. Kohler, Craig S. Powell, Geoffrey R. Misfeldt; case activity

¶2        In 1986, Thomas M. Pocian was convicted of writing forged checks, a felony.  Twenty-four years later, Pocian was prosecuted under Wis. Stat. § 941.29, which prohibits a felon from possessing a firearm.  Relying on Heller and McDonald,

State v. Michael L. Frank, 2011AP2306, District 3, 4/10/12

court of appeals decision (1-judge, not for publication); for Frank: Robert A. Kennedy, Jr.; case activity

Information, provided by a 911 caller reporting observations about Frank’s erratic driving, provided a basis for a lawful stop.

17      In this case, we conclude that Judge lawfully stopped Frank based on Shatzer’s tip.[3]  A police officer may conduct a traffic stop if the officer has probable cause to believe a traffic violation has occurred or if the officer has reasonable suspicion,

State v. David D. Austin, 2011AP1042, District 1, 4/10/12

court of appeals decision (1-judge, not for publication); pro se; case activity

Because Austin was no longer in custody under the conviction he sought to collaterally attack pursuant to § 974.06, the court lacked jurisdiction to entertain his motion. It is not enough that he was in custody under some sentence, rather than the particular conviction he sought to attack:

¶12      Austin submits that the wording of Wis.

State v. Levi Alexander Rodebaugh, 2011AP2659-CR, District 4, 4/5/12

court of appeals decision (1-judge, not for publication); for Rodebaugh: Bryon J. Walker; case activity

Grant of mistrial was unsupported by “manifest necessity,” hence was an erroneous exercise of discretion, where the complainant failed to show for trial and couldn’t be quickly located. Retrial is therefore barred as a matter of double jeopardy:

¶9        After Rodebaugh’s jury was sworn and jeopardy attached,

court of appeals certification request; case activity

Voter ID Law 

(From the Certification:)

There are many issues in this case, but this certification focuses on the following questions:  (1) What level of judicial scrutiny should be employed in reviewing the plaintiffs’ challenge to the Act?  (2) Does the Wisconsin Constitution provide greater protection to voting rights than is guaranteed under the United States Constitution?  

court of appeals certification request; case activity

Voter ID Law 

(From the Certification:)

This appeal challenges a circuit court order that permanently enjoined implementation of those portions of 2011 Wisconsin Act 23 requiring Wisconsin electors to display government-authorized photo identification either at the polling place or to election officials by the Friday following an election.  The injunction was based upon the circuit court’s declaratory judgment that Act 23 violates article III,