On Point: B. Published opinions

State v. Eric D. Bourgeois, 2022 WI App 18; case activity (including briefs)

Police went looking for Bourgeois at a hotel because he might have been in possession of stolen handgun, he had PTSD, and he had a drug problem. At 2:00 a.m., despite a “do not disturb” sign, 3 officers tried to enter his room unannounced first using a key card and then a master key. Due to the chain lock, they could only peek through but they saw that Bourgeois alone and unarmed  He declined to let them in and turned away. Claiming exigent circumstances, police busted through the hotel door.

Victor Ortiz, Jr. v. Kevin A. Carr, 2022 WI App 16; case activity (including briefs)

Attorneys Jason Luczak and Jorge Fragoso of Gimbel, Reilly, Geurin & Brown generously took this case pro bono. And now Jorge offers this guest post on their defense win:

Prison inmate (and hero to institutionalized persons) Victor Ortiz filed a petition for writ of certiorari seeking to limit the percentage of his income diverted for the payment of restitution. He won. The court of appeals ordered the Department of Corrections to limit its withholdings to 25% of Ortiz’s wages, half of what the Department sought.

State v. Shane Allan Stroik, 2022 WI App 11; case activity (including briefs)

A jury convicted Stroik of the sexual assault of a then-five-year old girl, “Amy,” the daughter of his girlfriend. Postconviction, Stroik brought a slew of claims for a new trial; the circuit court rejected them all. The court of appeals now holds that trial counsel performed deficiently in not obtaining a report from child protective services detailing an accusation Amy had made about her cousin a few months before she accused Stroik–an accusation about an assault quite similar in its details to the one she would later say Stroik committed. The court also finds a reasonable probability that this evidence would have resulted in an acquittal, and thus grants Stroik a new trial.

State v. Jere J. Meddaugh, 2022 WI App 12; case activity (including briefs)

Wearing black clothing and riding a bicycle across publicly accessible school grounds in the middle of the night while a Safer at Home order is in effect does not constitute reasonable suspicion that a crime is being committed. So says the court of appeals in a decision that is recommended for publication.

On January 27, 2022, the court of appeals ordered the publication of the following criminal law related decision:

State v. Nakyta V.T. Chentis, 2022 WI App 4 (knowing possession of heroin could be imputed from needle tracks and paraphernalia possession)

On December 27, 2021, the court of appeals ordered publication of the following criminal law related decisions:

State v. Carl Lee McAdory, 2021 WI App 89; case activity (including briefs)

McAdory was charged with driving with a detectable amount of restricted controlled substances—cocaine and THC—and driving under the influence of those substances. At trial, the state convinced the trial judge to modify the standard jury instruction for the latter charge, Wis. J.I.—Criminal 2664, by deleting the statement that not every person who has consumed controlled substances is “under the influence.” This modification, coupled with the prosecutor’s closing argument that it had proven its case by proving McAdory had a detectable amount of the substances, effectively relieved the state of its burden to prove that McAdory was “under the influence.”

State v. Nakyta V.T. Chentis, 2022 WI App 4; case activity (including briefs)

To convict someone of possession of a controlled substance, the State must prove both that he was in possession of the substance and that he knew or believed he was in possession of it. State v. Christel, 61 Wis. 2d 143, 159, 211 N.W.2d 801 (1973). See also Wis JI-Criminal 6000. In a published opinion, the court of appeals holds Chentis knew he possessed a trace amount of heroin–undetectable until the State Crime Lab applied a special chemical to paraphernalia–based on fresh track marks on his arm.

The court of appeals has ordered the publication of the following criminal law related opinion:

State v. Randy L. Bolstad, 2021 WI App 81 (defendant entitled to resentencing because sentencing court failed to consider the gravity of the offense)

State v. Alex Stone Scott, 2021 WI App 84; case activity

This split, recommended-for-publication opinion, merits further review.  Scott drove M.S.’s truck without her permission and damaged it in the process.  Undamaged, the truck’s Kelly Bluebook value was $2,394. M.S. testified that she did not want to repair the truck, but the circuit court nevertheless awarded restitution based on the cost of repair: $5,486.37. It also found that Scott, who was mentally ill and living on a minuscule SSDI benefit, was able to pay it. Judges Grogan and Neubauer affirmed. Reilly dissented.