On Point blog, page 94 of 214
§ 948.31, Interference with Child Custody – Sufficiency of Evidence – Presence of Parent
State v. Isaiah Bowden, 2007 WI App 234
For Bowden: Jason R. Farris
Issue/Holding: Conviction for interference with custody, § 948.31(2), doesn’t require that the child be within the parent’s immediate presence or control:
¶18 The State posits that the withholding method of interference focuses on permission, not being in the parent’s presence. We agree. The withholding method addresses a situation where the person who takes the child has some initial permission to do so.
Search & Seizure – Applicability of Exclusionary Rule: Private / Government Search — UPS
State v. Christopher D. Sloan, 2007 WI App 146
For Sloan: Thomas E. Hayes
Issue/Holding: Inspection of package by UPS personnel and subsequent disclosure of its contents to police didn’t require a warrant, because of lack of governmental involvement in the initial search.
¶10 A private party’s discovery, and subsequent disclosure to law enforcement, of contraband is not prohibited by the Fourth Amendment where there is not a reasonable expectation of privacy in dealings with the private party.
Conspiracy to Manufacture Controlled Substance — § 961.41(1x), Elements — Generally
State v. Henry E. Routon, 2007 WI App 178, PFR filed
For Routon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶18 Wisconsin Stat. § 939.31 sets forth the elements of the crime of conspiracy applicable under Wis. Stat. § 961.41(1x).[8] Section 939.31 provides:
…. whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may,
Conspiracy to Manufacture Controlled Substance — Undercover Agent as Party to Agreement, Generally
State v. Henry E. Routon, 2007 WI App 178, PFR filed
For Routon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶19 The crime that is the subject of the conspiracy need not be committed in order for a violation of Wis. Stat. § 939.31 to occur; rather, the focus is on the intent of the individual defendant. State v. Sample,
Conspiracy to Manufacture Controlled Substance — Sufficiency of Evidence – Knowledge of Intended Use – Agreement
State v. Henry E. Routon, 2007 WI App 178, PFR filed
For Routon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: Evidence of conspiracy to manufacture controlled substance is sufficient, notwithstanding that the psilocybe spores that defendant sold were themselves legal, given “abundant evidence from which it is reasonable to infer that Routon marketed the psilocybe spores to persons who wanted to use them for the illegal purpose of growing mushrooms and that this was the predominant part of the business,” ¶30.
Possession of Controlled Substance, PTAC – Sufficiency of Evidence
State v. Charles E. Dukes, 2007 WI App 175
For Dukes: Robert N. Meyeroff
Issue/Holding:
¶22 Dukes contends that this evidence is insufficient because there was “no physical evidence linking [him] to the drug house and the drugs in the drug house,” because neither his fingerprints nor DNA were on any of the items recovered. He claims he did not live in the apartment, insisting that the evidence shows only that he was found sleeping on the floor where an overnight guest might sleep,
Keeping Drug Vehicle, § 961.42(1) – Elements, Generally
State v. Wayne Charles Slagle, 2007 WI App 117
For Slagle: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding:
¶2 … Because the State charged Slagle with keeping or maintaining a “vehicle” used for “keeping” cocaine, the State needed to prove the following three elements:
1. Slagle kept or maintained a vehicle.
2. Slagle’s vehicle was used for keeping cocaine. “Keeping” requires that the cocaine be kept for the purpose of warehousing or storage for ultimate manufacture or delivery.
Keeping Drug Vehicle, § 961.42(1) – Element of “Keeping” – More than Mere Transport Required
State v. Wayne Charles Slagle, 2007 WI App 117
For Slagle: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding:
¶7 The interpretation of the statutory term “keeping” as “warehousing or storage for ultimate manufacture or delivery” comes from State v. Brooks, 124 Wis. 2d 349, 354-55, 369 N.W.2d 183 (Ct. App. 1985). Neither party challenges this interpretation of the statute. [5] Furthermore, Slagle does not dispute that the evidence shows the cocaine in his truck was “for ultimate manufacture or delivery.” The only dispute here is whether the trial evidence shows the cocaine was being “warehoused” or “stored” in Slagle’s truck.
Plea-Withdrawal, Pre-Sentencing – “Fair and Just Reason” – Claim of Innocence: Insufficient, Alone
State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: “A claim of innocence, of course, is not sufficient as a stand-alone reason to permit a plea withdrawal even before sentencing. State v. Harvey, 2006 WI App 26, ¶23, 289 Wis. 2d 222, 239, 710 N.W.2d 482, 490 (‘An assertion of innocence,
Plea-Withdrawal – Pre-Sentence – “Substantial Prejudice” to State: Child Testimony, Difficulty Obtaining
State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: Unrefuted indications of the child-complainant’s changed recollection of the details and reluctance to testify, ¶¶8-9, established “substantial prejudice” so as to defeat a pre-sentencing motion to withdraw plea:
¶16 A defendant seeking to withdraw a guilty plea before imposition of sentence must establish a fair and just reason and also “must rebut evidence of substantial prejudice to the State.” State v.