On Point blog, page 363 of 484
Theft by Fraud, § 943.20(1)(d) – Element of Misrepresentation – Satisfied by Failure to Discharge Duty to Disclose
State v. Dale C. Ploeckelman, 2007 WI App 31
For Ploeckelman: Rand Krueger
Issue/Holding:
¶18 A representation can be acts or conduct. See Stecher v. State, 168 Wis. 183, 186, 169 N.W. 287 (1918). In Kaloti Enters., Inc. v. Kellogg Sales Co., 2005 WI 111, 283 Wis. 2d 555, 699 N.W.2d 205, our supreme court laid out the circumstances where a failure to disclose can constitute a representation.
Prostitution, § 944.30(1) – Sufficiency of Evidence – On Charge of Soliciting Intercourse: Offer to Watch Subject Masturbate
State v. David Richard Turnpaugh, 2007 WI App 222
For Turnpaugh: David P. Geraghty, Michael Sosnay
Issue: Given that, as charged, the offense required soliciting “sexual intercourse” (which in turn is defined as “vulvar penetration”), whether the statement “that he was looking for sex and he wanted me to masturbate and that he wanted to watch” is sufficient to support conviction.
Holding:
¶7 Although Turnpaugh said he was “looking for sex,” he limited the scope of that phrase by describing >what he was willing to pay for—watching Ferguson masturbate.
Bail-Jumping, § 946.49(1)(a) – Reversal of Conviction on Which Offense Premised
State v. David Richard Turnpaugh, 2007 WI App 222
For Turnpaugh: David P. Geraghty, Michael Sosnay
Issue/Holding: Reversal of the conviction for the crime on which the bail-jumping “was premised” also requires reversal of the bail-jumping conviction, ¶8.
This isn’t to say that bail-jumping requires >conviction on the underlying offense, see, e.g., State v. Kelley L. Hauk, 2002 WI App 226,
§ 948.025(3) – Prohibition on Multiple-Offenses in Same Proceeding – Remedy
State v. Jeffrey L. Torkelson, 2007 WI App 272, PFR filed 11/30/07
For Torkelson: Timothy A. Provis
Issue/Holding: The remedy for violation of the § 948.025(3) prohibition on charging multiple offenses in the same proceeding is limited to dismissal of the charges (not new trial):
¶26 … Wisconsin Stat. § 948.025(3) simply prohibits the State from charging certain enumerated offenses in the same action as a violation of § 948.025.
Distribution of Harmful Material to Children, § 948.11(2)(am) – Internet Chat Room Communication is “Verbal” Communication, within Statute
State v. Shawn B. Ebersold, 2007 WI App 232
For Ebersold: Lester A. Pines
Issue: Whether message sent via Internet chat room supports prosecution for § 948.11(2)(am), verbally communicating harmful material to child.
Holding:
¶9 In this case, the parties dispute whether Wis. Stat. § 948.11(2)(am) prohibits communication of a harmful description or narrative account to a child via an Internet chat message.
Arrest — Probable Cause — Specific Examples: Seatbelt Violation
State v. Pedro L. Nieves, 2007 WI App 189, PFR filed 7/6/07
For Nieves: Ralph Sczygelski
Issue/Holding:
¶9 For purposes of this appeal, the propriety of the initial traffic stop is not challenged. Rather, Nieves argues that he should not have been arrested for his “innocuous seatbelt violation.” He was not. Indeed, Wis. Stat. § 347.48(2m)(gm) expressly forbids an arrest based solely on a seatbelt violation.
Arrest – Probable Cause – Specific Examples: Drug Activity
State v. Dwight M. Sanders, 2007 WI App 174, affirmed on different ground, 2008 WI 85
For Sanders: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding: Police lacked probable cause to arrest for a drug offense under the following circumstances:
¶15 At the time the officers pursued Sanders into his home, the officers knew that the residence was located in an area known for drug trafficking and that Sanders was holding in his hands folded-up money and a canister that appeared to be of the type typically used to transport drugs.
Emergency Exception to Warrant Requirement – Kidnapping: Evidence Leading to Victim’s Location
State v. David M. Larsen, 2007 WI App 147, PFR filed 5/31/07
For Larsen: Jefren E. Olsen, SPD, Madison Appellate
Issue: Whether the emergency doctrine supports warrantless entry of a residence not merely to look for the victim but also to search for evidence that would lead to her location.
Holding:
¶22 Larsen next contends that even if the emergency doctrine justified a search for the children,
Emergency Exception to Warrant Requirement – Child-Kidnapping: Heightened Need
State v. David M. Larsen, 2007 WI App 147, PFR filed 5/31/07
For Larsen: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶20 Larsen first contends that because the officers had already conducted a thorough search of the home, they had no reason to believe that there was anyone inside in need of immediate assistance. We disagree.
¶21 When the officers and emergency personnel conducted the first search,
Consent to Search – Apparent Authority: Owner of Residence, Allowing Search of Renter’s Room
State v. Roemie T. St. Germaine, 2007 WI App 214, PFR filed 9/27/07
For St. Germaine: Rex Anderegg
Issue: Whether the owner of the residence (Briseno) had apparent authority to consent to police search of renter St. Germaine’s room, at least where St. Germaine was present was consent was sought and never objected.
Holding:
¶17 St. Germaine argues that there was no reasonable basis for the officers to search his room because they knew it was rented and that Briseno could not consent.