On Point blog, page 107 of 214
§ 940.10(1), Homicide by Negligent Operation of Vehicle — Elements
State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate
Issue/Holding:
¶19 Wisconsin Stat. § 940.10(1) provides that a person who “causes the death of another human being by the negligent operation or handling of a vehicle is guilty of a Class G felony.” The term “negligent” as used in § 940.10 requires proof of “criminal negligence.” See Wis.
§ 940.10(1), Homicide by Negligent Operation of Vehicle — Sufficiency of Evidence
State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate
Issue/Holding:
¶34 In sum, we conclude that the State presented sufficient evidence for jurors to reasonably conclude, beyond a reasonable doubt, that Schutte’s conduct prior to the collision was criminally negligent within the meaning of Wis. Stat. §§ 939.25 and 940.10. The State’s evidence established not only that Schutte’s car crossed the highway centerline,
§ 940.10(1), Homicide by Negligent Operation of Vehicle — Jury Instructions — Elements
State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate
Issue: Whether the trial court invaded the jury’s province when it instructed that the court of appeals had held in State v. Johannes, 229 Wis. 2d 215, 598 N.W.2d 299 (Ct. App. 1999) that a criminally negligent act had occurred when a car drove across the centerline and that unanimous agreement was unnecessary as to why that act occurred.
§ 940.31(1)(b), Kidnapping – Elements & Mitigation
State v. Reinier A. Ravesteijn, 2006 WI App 250
For Ravesteijn: Rudolph L. Oldeschulte
Issue/Holding: Kidnapping is mitigated from a Class B to Class C felony if the victim is released without permanent physical injury prior to the first witness’s testimony, ¶17. When accepting a guilty plea to Class B kidnapping the court must ascertain a factual basis for excluding the Class C offense, at least where there is some evidence in the record to support it,
§ 940.225(2)(h), Sexual Assault by Correctional Staff Member – Courthouse Bailiff not “Correctional Staff”
State v. Delano L. Terrell, 2006 WI App 166
For Terrell: Martin E. Kohler, Brian Kinstler, Christopher M. Eippert
Issue: Whether a sheriff’s deputy assigned to work as a court bailiff is a “correctional staff member” so as to come within § 940.225(2)(h).
Holding: A “correctional staff member” is defined as an individual who works at a correctional institution, § 940.225(5)(ad). Terrell was a deputy assigned to work as a courthouse bailiff—a courthouse isn’t a correctional institution,
§ 940.25(1)(am), Injury by Intoxicated Use of Motor Vehicle – Constitutionality
State v. Eric Benjamin Gardner, 2006 WI App 92
For Gardner: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding1: The elements of § 940.25(1)(am) – the defendant operated a vehicle with “a detectable amount of a restricted controlled substance in his or her blood, and the operation of the vehicle caused great bodily harm to the victim – do not create any presumption so as to relieve the State of its burden of proof,
§ 940.32(2) & (3)(c), Stalking — Elements, Generally
State v. Ronnie L. Thums, 2006 WI App 173
For Thums: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding: Use of a weapon is an element of stalking with a dangerous weapon, and the offense has therefore not been committed until the weapon has been employed (though the offense of stalking has been), ¶8 and id., n. 2.
§ 940.42, Attempted Intimidation of Witness – Elements – Sufficiency of Evidence: Addressing Parent of Child-Witness
State v. Alvin M. Moore, 2006 WI App 61, PFR filed 3/21/06
For Moore: Donna L. Hintze, SPD, Madison Appellate
Issue: Whether an effort at dissuading a child witness which was directed at the child’s mother satisfies the elements of attempted intimidation of a witness, § 940.42.
Holding:
¶10 To prove attempted intimidation of Tamika, the State was required to prove that: (1) Tamika was a witness;
§ 940.42, Attempted Intimidation of Witness – Multiplicity: Multiple Counts, Same Witness
State v. Alvin M. Moore, 2006 WI App 61, PFR filed 3/21/06
For Moore: Donna L. Hintze, SPD, Madison Appellate
Issue: Whether separate counts are supported for attempted intimidation of the same witness, representing each separate letter sent by the defendant to the witness imploring her not to testify against him.
Holding: Multiple counts are permissible, at least where each count is based on distinct facts,
Resisting, § 946.41 – “Lawful Authority” – Initially Unlawful Act by Police Doesn’t Preclude Conviction for Defendant’s Subsequent Conduct
State v. Anna Annina, 2006 WI App 202
For Van Hout: Robert R. Henak
Issue/Holding: Although police entry into the defendant’s house was pursuant to a search warrant later declared to be invalid, the defendant’s acts in response to that entry amounted to disorderly conduct which did allow for an arrest under lawful police authority; defendant could therefore be convicted for resisting a lawful arrest for disorderly conduct,