On Point blog, page 108 of 215
§ 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,
§ 948.03(3)(b), Physical Abuse of Child by Recklessly Causing Bodily Harm – Element of Recklessness
State v. Quentrell E. Williams, 2006 WI App 212
For Williams: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: Because “recklessly” causing harm to a child, § 948.03(b), is determined solely from an objective point of view, evidence related to whether the actor “subjectively thought his [disciplinary action] was reasonable parental discipline” is irrelevant, including evidence of how the actor was him or herself disciplined as a child,
Using Computer to Facilitate Child Sex-Crime, § 948.075(3) – Elements – Sufficiency of Evidence
State v. Dennis Charles Schulpius, 2006 WI App 263
For Schulpius: Bridget Boyle
Issue/Holding:
¶10 … The subsection has two elements: (1) the defendant must have done something that shows that he or she had, as phrased by § 948.075(1), the “intent to have sexual contact or sexual intercourse” with someone whom he or she believed, or had reason to believe, was younger than sixteen,
§ 948.095, Sexual Assault by School Instructional Staff – Elements
State v. David R. Kaster, 2006 WI App 72, PFR filed 4/26/06; prior appeal: 2003 WI App 105
For Kaster: Robert R. Henak
Issue/Holding: Kaster’s prior appeal held that school staff need not be under contract for purposes of § 948.095; providing voluntary services at the time of the alleged assault suffices. This prior holding did not, the court now resolves, expand the scope of the statute so as to deprive Kaster of fair notice of the proscribed conduct:
¶7 Here,
Arrest – Test for Custody – Suspect Held in Locked Room More Than Five Hours
State v. Cesar Farias-Mendoza, 2006 WI App 134
For Farias-Mendoza: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: A suspect who had agreed to be transported to police headquarters for questioning was arrested within the meaning of the fourth amendment once the police left him unattended for over five hours in a locked room:
¶23 We disagree with the State’s conclusion. While a defendant is not automatically seized anytime he is taken to a police station for questioning,