On Point blog, page 435 of 483
Theft by Fraud, § 943.20(1)(d) — Elements — Agency
State v. Todd W. Timblin, 2002 WI App 304
For Timblin: Alex Flynn
Issue: Whether agency necessarily becomes an element of theft by fraud, § 943.20(1)(d), when the defendant obtains the property through an intermediary.
Holding: The intermediary must actually be an agent before an agency relationship is necessary to state’s proof. Where, as here, the intermediary acted as a mere “conduit” for delivering money between defrauded victims and defendant —
Bail Jumping, § 946.69(1)(b) — Conviction on Underlying Crime Unnecessary
State v. Kelley L. Hauk, 2002 WI App 226
For Hauk: David D. Cook
Issue/Holding: State need not charge defendant with both bail jumping and underlying crime in order to obtain conviction for bail jumping (i.e., violating bond by committing crime). ¶¶14-18.
¶19 We therefore conclude that as long as there is evidence sufficient to allow a reasonable jury to conclude beyond a reasonable doubt that a defendant intentionally violated his or her bond by committing a crime,
Obstructing, § 946.41(1) — Mere denial of Culapbility of Crime under Investigation
State v. Joseph M. Espinoza, 2002 WI App 51, subsequently overruled by State v. Brent R. Reed, 2005 WI 53
For Espinoza: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether a suspect’s mere denial of guilt of the crime under investigation may in and of itself establish probable cause for the separate crime of obstructing, § 946.41(1).
Holding:
¶20.
Private Interest in Public Contract, § 946.13(1)(a) — Sufficiency of Evidence
State v. Paul Venema, 2002 WI App 202
For Venema: Randall R. Garczynski
Issue/Holding:
¶20 We reject Venema’s argument that a contract has to be in existence in order for a violation to occur under Wis. Stat. § 946.13(1)(a). Such an interpretation is undermined by the plain meaning of the statutory language. The common meaning of “negotiate” is to “communicate with another party for the purpose of reaching an understanding[.]”
§ 948.02, Sexual Assault — Sufficiency of Evidence
State v. Paul K. Shanks, 2002 WI App 93, PFR filed 4/11/02
Issue/Holding: Evidence held sufficient to support conviction for sexual assault of child, notwithstanding inconsistencies and equivocations in complainant’s testimony (court stressing that certain pretrial statements she made did implicate defendant), ¶25. Court also finds evidence sufficient on element of intent: “Intent to become sexually aroused or gratified can be inferred when a man places his finger in the vagina of a two-year-old girl,”
Arrest – Legislator’s Exemption
State v. Brian B. Burke, 2002 WI App 291, PFR filed 11/29/02
For Burke: Robert H. Friebert
Issue/Holding:
¶22. We conclude that the members of the Wisconsin Constitutional Convention did not intend to create a legislative privilege from criminal arrest and prosecution when they included article IV, section 15 in the Wisconsin Constitution. The phrase “treason, felony and breach of the peace” in that section was intended to mean “all crimes.”
Arrest — Traffic Offense — Duration — Effect on Consent to Search
State v. Charles A. Wallace, 2002 WI App 61
For Wallace: Martha K. Askins, SPD, Madison Appellate
Issue: Whether an arrest for a traffic stop, lawful at inception, was unlawfully prolonged in order to obtain the driver’s consent to a strip search not reasonably related to the traffic violation.
Holding: This issue is “closely related” to one raised in State v. Gaulrapp,
Consent — Acquiescence — Strip Search
State v. Charles A. Wallace, 2002 WI App 61
For Wallace: Martha K. Askins, SPD, Madison Appellate
Issue: Whether Wallace voluntarily consented, or merely acquiesced, to a strip search following arrest for a minor traffic violation.
Holding:
¶19. The police made their request during the booking process and before Wallace’s bond had been posted. We concur with the circuit court’s conclusion that thirty minutes,
Consent – Coercion — Submission to Chemical test — Threat to Revoke Driver’s License, OWI Arrest
Village of Little Chute v. Todd A. Walitalo, 2002 WI App 211, PFR filed 8/1/02
For Walitalo: Ralph A. Kalal
Issue/Holding:
¶11. However, the arresting officer, by reading the informing the accused form, simply stated the truth: If Walitalo refused to submit to a chemical test, his driving privileges would be revoked. This statement did not involve any deceit or trickery, but instead accurately informed Walitalo of his precise legal situation.
Consent — Scope — Body Cavity Search
State v. Charles A. Wallace, 2002 WI App 61
For Wallace: Martha K. Askins, SPD, Madison Appellate
Issue: Whether Wallace’s consent for a strip search encompassed the more intrusive body cavity search that ensued (Wallace bent over and spread his buttocks).
Holding:
¶29. We have concluded that Wallace voluntarily consented to a strip search, and the parties agree that a visual body cavity search was ultimately conducted.