On Point blog, page 95 of 214
Securities Fraud, § 551.41(2) – Promissory Note
State v. Kevin F. McGuire, 2007 WI App 139, PFR filed 6/4/07
For McGuire: Timothy A. Provis
Issue: Whether a promissory note is a “security” within the meaning of § 551.02(13(a).
Holding: The 4-factor test of In Reves v. Ernst & Young, 494 U.S. 56, 66-67 (1990) applies: “1) the motivations of a reasonable seller and buyer; (2) the note’s ‘plan of distribution’;
§ 125.075(1), Procuring Alcohol for Minor Resulting in Death – Element of Scienter
State v. Ronald L. Wille, 2007 WI App 27, PFR filed 2/28/07
For Wille: Jerome A. Maeder, Benjamin Welch
Issue: Whether the scienter element of § 125.075(1) requires proof that the defendant know that a particular individual is under the legal drinking age.
Holding:
¶11 Wille makes much of the fact that Wis. Stat. § 125.075(1) refers several times to the victim in the singular: “to a person under 18 years of age”;
§ 125.075(1), Procuring Alcohol for Minor Resulting in Death – Sufficiency of Evidence
State v. Ronald L. Wille, 2007 WI App 27, PFR filed 2/28/07
For Wille: Jerome A. Maeder, Benjamin Welch
Issue: Whether the evidence was sufficient under § 125.075(1) to show that the defendant had the underage victim had consumed alcohol provided by the defendant at a party for which the defendant supplied beer and sold red cups for the purpose of obtaining the beer (the victim became intoxicated and later died in a traffic accident after leaving the party).
§ 125.075(1), Procuring Alcohol for Minor Resulting in Death – Elements – State Need not Prove Victim’s Level of Intoxication
State v. Ronald L. Wille, 2007 WI App 27, PFR filed 2/28/07
For Wille: Jerome A. Maeder, Benjamin Welch
Issue/Holding:
¶31 … The State was under no obligation to establish the level of alcohol in Meshak’s blood at the time of the accident, or even to prove that he was intoxicated to the degree required for a conviction under Wis. Stat. § 346.63 (“Operating under influence of intoxicant or other drug”).
§ 125.075(1), Procuring Alcohol for Minor Resulting in Death – Jury Instructions: Causation
State v. Ronald L. Wille, 2007 WI App 27, PFR filed 2/28/07
For Wille: Jerome A. Maeder, Benjamin Welch
Issue/Holding:
¶24 Wille claims the trial court erred in instructing jurors that, to find Wille guilty of the charged crime, Meshak’s consumption of alcohol provided by Wille was required to be “a” substantial factor in causing Meshak’s death, instead of “the” substantial factor, as Wille requested.
Guilty Pleas – Withdrawal of Plea — Sua Sponte, by Court – Unauthorized
State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding:
¶12 As the circuit court recognized after the State brought its motion for reconsideration, circuit courts in Wisconsin may not, absent circumstances not present here, sua sponte vacate guilty pleas validly accepted. State v. Comstock, 168 Wis.
§ 902.01(2), Judicial Notice – Briefs Posted On-Line
State v. Ahern Ramel, 2007 WI App 271
For Ramel: Wm. Tyroler, SPD, Milwaukee Appellate
Issue/Holding: The court may take judicial notice of public records, including material found in briefs available on-line, ¶24 n. 9.
§ 903.03, Conclusive Presumptions — Generally
State v. Sherry L. Schultz, 2007 WI App 257; companion case: State v. Scott R. Jensen, 2007 WI App 256; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31For Schultz: Stephen L. Morgan, Jennifer M. Krueger
Issue/Holding:
¶9 In State v. Kuntz,
§ 903.03, Conclusive Presumptions – Limiting Language Required on Matters of Law as Well as Fact
State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31
For Schultz: Stephen L. Morgan, Jennifer M. Krueger
Issue/Holding: Jury instructions on the elements of duty and intent under § 946.12(3) created mandatory conclusive presumptions:
¶10 Schultz contends that the following sentences in the jury instruction given by the trial court operated as mandatory conclusive presumptions on the issues of intent and duty: “The use of a state resource to promote a candidate in a political campaign or to raise money for a candidate provides to that candidate a dishonest advantage” (establishing the intent element);
§ 904.04, Applicability of “Sullivan” Analysis – Evidence of Drug House not Extraneous Misconduct but Proof of Element
State v. Charles E. Dukes, 2007 WI App 175
For Dukes: Robert N. Meyeroff
Issue/Holding:
¶29 Here, Detective Carter testified that he observed the building at 450 North 33rd Street, saw people coming, staying for a few minutes and leaving, and explained that such traffic was consistent with operating a drug house. He admitted, however, that he was unable to see which unit the people who appeared to be purchasing drugs entered.