On Point blog, page 149 of 214
§ 948.02(2), 2nd-Degree Sexual Assault (by Contact) — Elements – “Intentional” (Vs. “Knowing”) Contact
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.
Due Process – Scienter, § 948.12
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,”
§ 948.02(2), Attempted Sexual Assault (Intercourse); § 948.07 (Attempted) Enticement – Initiated Over Internet – First Amendment
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.
Multiplicity: § 948.12, Child Pornography – Photographs Stored on Disk
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.
Arrest — Probable Cause — Specific Examples: Homicide — Husband’s Involvement in Wife’s Disappearance
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,
Arrest — Probable Cause — OWI
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.”
Exigency — Automobile Exception to Warrant Requirement — Probable Cause Required
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.
Exigency — OWI Investigation, Entry of Home
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.
Exigency — Blood Alcohol — Probable Cause as Substitute for Actual Arrest
State v. Cara A. Erickson, 2003 WI App 43, PFR filed
Issue: Whether a warrantless draw of blood satisfies State v. Bohling, 173 Wis. 2d 529, 533- 34, 494 N.W.2d 399 (1993) where there is probable cause but not an actual arrest.
Holding:
¶12. .. (I)n the absence of an arrest, probable cause to believe blood currently contains evidence of a drunk-driving-related violation or crime satisfies the first prong of Bohling.
Search & Seizure – Applicability of Exclusionary Rule — violation of nonconstitutional right prison discipline
State v. Joseph Steffes, 2003 WI App 55, PFR filed 3/13/03
For Steffes: Daniel P. Ryan
Issue/Holding: Violation of administrative code provision does not support suppression. ¶¶9, 25.
But: this decision was based largely on State ex rel. Peckham v. Krenke, 229 Wis. 2d 778, 601 N.W.2d 287 (Ct. App. 1999), a case that was essentially overruled by State v.