On Point blog, page 308 of 484
3rd-Degree Sexual Assault, § 940.225(3) – Elements; Prior Inconsistent Statement; Sufficiency of Evidence
State v. Dennis J. Thornton, 2009AP3074-CR, District 2, 4/13/11
court of appeals decision (not recommended for publication); for Thornton: Angela C. Kachelski; case activity
Scienter is not an element of § 940.225(3). State v. Lederer, 99 Wis. 2d 430, 433, 299 N.W.2d 457 (Ct. App. 1980) (statute requires proof of victim’s nonconsent – in contradistinction, presumably, of defendant’s knowledge of lack of consent –
Implied Consent Law, § 343.305(5)(a)
State v. Joe R. Hechimovich, 2010AP2897-CR, District 4, 4/7/11
court of appeals decision (1-judge, not for publication); for Hechimovich: Corey C. Chirafisi; case activity
Compliance with implied consent law found. Although Hechimovich initially requested a breath test, after his blood was drawn at the hospital, the deputy “gave ample opportunity” during a 10-minute period for Hechimovich to renew the request for breath test. The deputy “conclud(ed) that when Hechimovich did not bring it up following his blood test,
Complaint – Sufficiency; Standard of Review – Transcripts not in Record
State v. Michael L. Gengler, 2010AP1999, District 2, 4/6/11
court of appeals (1-judge, not for publication); pro se; case activity
¶6 The trial court determined that the complaint and the amended complaint were proper, stating,
The complaint was duly sworn on oath. The complaint was signed and filed by an assistant district attorney as prescribed by WIS. STAT. § 968.02(1). The complaint alleges multiple violations of WIS.
Reasonable Suspicion – Field Sobriety Testing
State v. Rafael Labedzki, 2010AP2501-CR, District 2, 4/6/11
court of appeals decision (1-judge, not for publication); for Labedzki: Walter Arthur, Piel, Jr.; case activity
Reasonable suspicion for sobriety testing upheld, where officer had basis for concluding Labedzki was driving while intoxicated after an unchallenged stop for speeding. In brief: “Given that the trooper observed an alcoholic smell coming from Labedzki’s vehicle, a passenger who appeared drunk, bloodshot and glassy eyes on Labedzki,
Traffic Stop – Mistake of Fact
County of Sheboygan v. Jeffrey L. Bubolz, 2010AP2997, District 2, 4/6/11
court of appeals decision (1-judge, not for publication); for Bubolz: Casey J. Hoff; case activity
Ignoring a warning sign that a road is closed except to local traffic creates reasonable suspicion for a traffic stop, even though the sign was an “unofficial” one put up by the contractor.
¶11 Failure to adhere to official traffic signs is a violation of WIS.
Right to Present Defense – Hearsay Testimony; “Shiffra” Disclosure; Judicial Bias
State v. Bryan Peter Leather, 2010AP354-CR, District 1, 4/5/11
court of appeals decision (not recommended for publication); for Leather: Rex Anderegg; case activity
Leather argues he was entitled to call the prosecutor as a witness to testify about the complainant’s hearsay statements to her. The 6th amendment right to present a defense (confrontation and compulsory process) isn’t absolute and in particular doesn’t extend to irrelevant evidence. The offer of proof in support of admissibility shows that the complainant’s statements to the prosecutor weren’t inconsistent with her testimony,
Reasonable Suspicion – OWI Stop; Guilty Plea Waiver Rule – Suppression Rule; Briefing Rules
City of West Allis v. Susan Schneidler, 2010AP2531, District 1, 4/5/11
court of appeals decision (1-judge, not for publication); for Schneidler: Thomas C. Simon; case activity
Tip from an identified citizen informant – that she had seen Schneidler drinking alcohol before driving off – supported stop of Schneidler’s car, without requiring independent corroboration.
¶18 In short, Parr was a reliable witness who told police that she personally observed Schneidler drink alcohol and then drive and who made herself available to the police for questioning.
Appellate Procedure – Mootness Doctrine; Sentencing Review – Consideration of Pending Charge
State v. Thomas J. Hoffman, 2010AP1327-CR, District 2, 3/30/11
court of appeals decision (1-judge, not for publication); for Hoffman: Kathleen A. Lindgren; case activity
Hoffman’s challenge to the length of his sentence became moot once he had fully served it.
¶6 At the outset, the State contends that Hoffman’s appeal is moot; he has served his entire seven-month sentence and this court’s review on his motion for sentence modification will have no practical effect.
Court of Appeals Publication Orders, 3/11
court of appeals publication orders, 3/30/11
On Point posts from this list:
2011 WI App 28 State v. Derek J. Copeland
2011 WI App 30 State v. Rory A. Kuenzi
2011 WI App 31 Shirley Anderson v. Northwood School District
2011 WI App 34 State v. Jason L. Miller
2011 WI App 43 State v.
§ 951.02, Animal Cruelty, in rel. to Ch. 29 Hunting Restrictions
State v. Robby D. Kuenzi, 2011 WI App 30; for Rory Kuenzi: Thomas W. Johnson; for Robby Kuenzi: Jefren E. Olsen, SPD, Madison Appellate; case activity
Animal Cruelty, § 951.02
Cruel mistreatment of non-captive wild animals – in this case, deer intentionally rammed by snowmobiles, concededly cruel acts – may be prosecuted under § 951.02, whether or not the acts are specifically regulated by chapter 29 hunting restrictions.