On Point: 46. WI Court of Appeals

State v. Christopher Melendrez, 2009AP2070, District 4, 9/2/10

court of appeals decision (3-judge, not recommended for publication); for Melendrez: David R. Karpe; BiC; Resp.; Reply

SVP – Retroactivity of Qualifying Offense Legislation

Third-degree sexual assault wasn’t an SVP-qualifying offense when Melendrez plea-bargained a reduction of 2nd-degree sexual assault to 3rd. But by the time he was released from prison,

State v. Jennette L. Ellifritz, 2010AP713-CR, District 2, 9/1/10

court of appeals decision (1-judge, not for publication); for Ellifritz: Gary Grass; BiC; Resp.; Reply

Obstructing – Unanimity – Course of Conduct

Because Ellifritz’s actions occurred during a single course of action, over a short (40-second) period of time, instructional failure to require agreement as to which separate act constituted obstructing didn’t violate her right to unanimous verdict;

City of Oshkosh v. Richard A. Selquist, 2010AP862, District 2, 9/1/10

court of appeals decision (1-judge, not for publication); for Selquist: Walter Arthur Piel, Jr.; BiC; Resp.; Reply

The police had reasonable suspicion to continue temporary detention of Selquist and to request filed sobriety testing while investigating a traffic accident:

¶7        …  In reviewing whether the officer’s further investigation and request for field sobriety tests were warranted,

State v. Adamm D.J. Linton, 2010 WI App 129; for Linton: Joseph E. Redding; BiC; Resp.; Reply

Interrogation – Ambiguous Request for Counsel

Initial custodial questioning terminated when Linton invoked his right to silence. During subsequent re-interrogation, Linton said, “when I asked for a lawyer earlier, why wasn’t he appointed to me?” The detective indicated that if Linton was asking for a lawyer then the police would “just stop talking to”

State v. Nick J. W., 2009AP2030-CR, District 4, 8/26/10

court of appeals decision (3-judge, not recommended for publication); for Nick J.W.: Joseph L. Sommers; BiC; Resp.; Reply

Incest – Sufficiency of Evidence

The 16-year-old complainant’s testimony that her biological father had sex with her sufficed to prove the crime of incest, the court rejecting the defense argument that, because she didn’t look at the perpetrator,

State v. Donovan L. Lewis, 2009AP2531-CR, District 4, 8/26/10

court of appeals decision (3-judge, not recommended for publication); for Lewis: Shelley Fite, SPD, Madison Appellate; BiC; Resp.; Reply

Defense access to a complainant’s privileged counseling records requires first convincing the trial court to conduct an in camera inspection to see if the records contain information material to innocence. And that requires showing a reasonable likelihood the records contain non-cumulative material information.

State v. David E. Steinke, 2009AP3207-CR, District 4, 8/26/10

court of appeals decision (1-judge, not for publication); for Steinke: Cody Wagner; BiC; Resp.; Reply

Driving with a prohibited alcohol content of .08 or more, second offense, is a crime and therefore subject to beyond-reasonable-doubt burden of proof. Sitting as trier of fact in a bench trial, the circuit arguably misapprehended the burden as greater weight of the credible evidence,

State v. Jesenia R., 2009AP2906, District 1, 8/24/10

court of appeals decision (1-judge, not for publication); for Jesenia R.: Mary D. Scholle, SPD, Milwaukee Appellate

No prejudice resulted from counsel’s failure to object to violation of the change-of-placement notice requirement in § 48.357. ¶¶15-16.

The background is a bit fact-intensive. Roughly: The child (Elizabeth) had been placed with a foster family, who moved to Idaho and took Elizabeth with them,

State v. Kurt D. Schmidt, 2010AP551-CR, District 3, 8/24/10

court of appeals decision (1-judge, not for publication); for Schmidt: Andrew John Laufers; BiC; Resp.; Reply

Conviction for disorderly conduct was established by evidence that Schmidt, following a contentious divorce, left messages on his ex-wife’s answering machine cautioning her “to question (her) own personal assurance and insurance,” and falsely reporting that her stepmother had died.

County of Milwaukee v. Katherine R. Harmon, 2010AP297, District 1, 8/24/10

court of appeals decision (1-judge, not for publication); for Harmon: Basil M. Loeb; BiC; Resp.

Traffic stop supported by reasonable suspicion of impaired driving based on: driving on lane-divider lines, crossing lane-divider by half-foot, and “jerkiness in … front steer tires.”

The court notes that while “merely weaving within the confines of a driver’s traffic lane is not sufficient to support reasonable suspicion sufficient to make a traffic stop …,