On Point: B. Published opinions

State v. Michael J. Forster, 2003 WI App 29, PFR filed 1/31/03
For Forster: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: The male victim’s testimony that the defendant “rubbed his nipple in a circular motion, while kissing [his] neck, for approximately twenty-five minutes,” established that the defendant touched an intimate part (chest) with illicit intent. ¶¶19-20.

State v. John S. Cooper, 2003 WI App 227, PFR filed 11/14/03
For Cooper: John A. Birdsall

Issue: Whether the trial court properly remedied violation of § 948.025(3) (impermissible to charge in same action both repeated-acts and individual acts of sexual assault involving same victim in same time period) by dismissing the repeated-acts charge instead of the individual-act charges.

Holding:

¶15. We hold that a court may reverse a conviction on the repeated acts charge under Wis.

State v. John A. Jipson, 2003 WI App 222
For Jipson: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: The specifically prohibited “purpose” of sexual contact (i.e., sexual degradation, humiliation, arousal, or gratification) is not listed in § 948.02(2), but is nonetheless defined in § 948.01(5) as an element. ¶9 and id., n. 4, following State v. Bollig, 2000 WI 6, ¶50, 232 Wis.

State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03
For Schaefer: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶32. Schaefer claims that by allowing conviction for possession of child pornography when a defendant “reasonably should know” that the child depicted is under eighteen years of age, Wis. Stat. § 948.12 omits a scienter requirement for the offense. He contends that in expressing the intent element regarding the minority of the depicted child in the pornographic materials as “knows or reasonably should know,”

State v. James F. Brienzo, 2003 WI App 203, PFR filed 10/10/03
For Brienzo: Jerome F. Buting

Issue/Holding: Prosecution for attempted sexual assault of a child initiated over the Internet isn’t barred by the first amendment. ¶¶23-24, applying State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287 (permitting prosecution for enticement). Same re: attempted enticement, ¶2:

We conclude that pursuant to State v.

State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03
For Schaefer: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Individual pornographic photos, all found on the same storage disk, support individual charges, it being “reasonable to assume that the existence of multiple files on the Zip disk demonstrates that Schaefer made a new decision to download a particular image file.9 Therefore, each image file ‘represent[s] a new volitional departure,’ and the charges against Schaefer are different in fact.” ¶50. 

State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly

Issue/Holding: The police had probable cause to arrest Kutz for involvement in his wife’s disappearance where: there was reason to believe that she had suffered serious harm given that she hadn’t returned to her mother’s house as expected, her family had unsuccessfully looked for her, and it was unlike her not to notify her family of a change in plans,

State v. James L. Larson, 2003 WI App 150
For Larson: Rex Anderegg

Issue/Holding:

¶16. To determine if probable cause exists, the court must consider whether “the totality of the circumstances within the arresting officer’s knowledge at the time of the arrest would lead a reasonable police officer to believe … that the defendant was operating a motor vehicle while under the influence of an intoxicant.” 

State v. Timothy T. Clark, 2003 WI App 121
For Clark: Rodney Cubbie

Issue/Holding: Although warrantless automobile searches aren’t presumptively unreasonable, the automobile exception to the warrant requirement is inapplicable in the absence of probable cause to search the automobile. ¶18.

State v. James L. Larson, 2003 WI App 150
For Larson: Rex Anderegg

Issue/Holding: Exigent circumstances weren’t present to justify police entry of a residence to arrest a suspected drunk driver, Welsh v. Wisconsin, 466 U.S. 740 (1984) controlling. ¶¶17-22.