On Point blog, page 136 of 214

Conspiracy, § 939.31 – Unit of Prosecution (Multiple Counts for Multiple Acts)

State v. Edward Leon Jackson, 2004 WI App 190, PFR filed 10/15/04
For Jackson: Meredith J. Ross, LAIP, UW Law School

Issue/Holding:

¶2 In 1996, Jackson admitted to his role in a plan to fire bomb a Milwaukee police officer’s home. Jackson and two other men conspired to fire bomb the house, enabling two others to shoot people fleeing from the building.

Read full article >

§ 940.03, Felony-Murder (1999-2000) — Stand-Alone, Unclassified Crime Not Penalty Enhancer

State v. Brandon L. Mason, 2004 WI App 176
For Dawson: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding: The felony murder statute, § 940.03 (1999-2000), contains characteristics suggestive of both penalty enhancers (it adds a specified term to the maximum penalty applicable to the underlying crime), ¶15, and also substantive offenses (it is located in a chapter that defines substantive offenses; and it incorporates the elements of offenses located elsewhere),

Read full article >

Expectation of Privacy — Garbage

State v. Sylvester Sigarroa, 2004 WI App 16, PFR filed 1/2/04
For Sigarroa: John Pray, UW Law School

Issue/Holding:

¶14. The State and Sigarroa propose different tests for determining the constitutionality of a warrantless garbage search… .

¶16. Both parties are able to cite case law in support of their competing approaches. However, upon close review of the relevant cases,

Read full article >

§ 940.225(2)(c), Sexual Assault: Mentally Ill Victim – Sufficiency of Evidence

State v. Eugene M. Perkins, 2004 WI App 213, PFR filed 11/9/04
For Perkins: Jeffrey W. Jensen

Issue Whether expert testimony is required to establish the victim’s mental illness, an element of § 940.225(2)(c).

Holding: This element may be shown through credible lay opinion testimony:

¶17 Here, the State had to prove four things: (1) that Perkins had sexual contact or intercourse with H.V.;

Read full article >

§ 940.225(2)(g), Sexual Assault – Elements: Employee of In-Patient Treatment Facility Within § 940.295(2) / § 50.135(1)

State v. John F. Powers, 2004 WI App 156
For Powers: Marcus J. Berghahn; John D. Hyland

Issue/Holding: An employee of the Tomah VA Medical Center is not an employee of an in-patient treatment facility within the meaning of §§ 940.225(2)(g), 940.295(2)(b), (c), (h), (k), and 50.135(1), because the Center is not licensed or approved by DHFS, ¶11, and the pending charge under that section must therefore be dismissed,

Read full article >

Expectation of Privacy – Curtilage – (Attached) Garage

State v. Walter Leutenegger, 2004 WI App 127
For Leutenegger: Bill Ginsberg

Issue/Holding: ¶21 n. 5:

The State does not challenge the circuit court’s holding that the garage was part of the curtilage of Leutenegger’s house and subject to the warrant requirement. This implicit concession appears appropriate in this case. Published decisions on this topic consistently hold that an attached garage is part of the curtilage. 

Read full article >

§ 941.29, Felon in Possession of Firearm — Constitutionality

State v. Louis D. Thomas, 2004 WI App 115, PFR filed 6/17/04
For Thomas: Joseph L. Sommers

Issue/Holding: Wis. Const. art. I, § 25 (“right to keep and bear arms”) did not effectively repeal § 941.29 (felon in possession). ¶¶7-12.

Issue/Holding: § 941.29 is neither vague, ¶¶14-18, nor overbroad, ¶¶19-23.

Issue/Holding: § 941.29 doesn’t violate equal protection, ¶¶24-29. (Comparative classes: felons / misdemeanants;

Read full article >

§ 946.12(3), Misconduct in Public Office: Vagueness, Overbreadth, Speech and Debate Clause, Separation of Powers Challenges

State v. Charles Chvala, 2004 WI App 53, affirmed, 2005 WI 30
For Chvala: James A. Olson, et. al,  Lawton & Cates

Holdings:

  • Section 946.12(3), which proscribes exercising a discretionary power inconsistent with the duties of the defendant’s office (in this instance, a state legislator) is not vague. Though those “duties” aren’t identified in any specific statute,
Read full article >

Bail Jumping, § 946.49(1)(b) – Necessity of Finding of Guilt of Underlying Crime

State v. Wyatt Daniel Henning, 2003 WI App 54, reversed on other grounds, 2004 WI 89
For Henning: Jack E. Schairer, SPD, Madison Appellate

Issue/Holding:

¶25. We appreciate that State v. Hauk, 2002 WI App 226, 257 Wis. 2d 579, 652 N.W.2d 393, review denied, 2002 WI 121, 257 Wis. 2d 122, 653 N.W.2d 893 (Wis.

Read full article >

§ 948.07, Enticement — Elements

State v. John S. Provo, 2004 WI App 97, PFR filed 5/7/04
For Provo: William H. Gergen

Issue/Holding: “… We hold that § 948.07 requires only that the defendant cause the child to go into any vehicle, building, room, or secluded place with the intent to engage in illicit conduct, but not that the child necessarily be first separated from ‘the public,’” ¶1. That is,

Read full article >