On Point blog, page 14 of 14
§ 940.22(2), Sexual Exploitation by Therapist – Clergy as “Therapist,” Jury Instructions
State v. William E. Draughon III, 2005 WI App 162, (AG’s) PFR filed
For Draughton: Stephen L. Miller
Issue/Holding: Draughon, a pastor, was concededly a “clergy” member within § 940.22(2); however, the instructions relieved the State of its burden of proof on the element of whether he performed “therapy” in this capacity, in that they told the jury that a member of the clergy is a “therapist,” without specifically requiring that Draughon in fact performed therapy:
¶13 Jury instructions that have the effect of relieving the State of its burden of proving beyond a reasonable doubt every element of the offense charged are unconstitutional under the Fifth and Sixth Amendments.
OWI, § 346.63(1)(am) – Elements, Proof of “Impairment” Not Necessary
State v. Joseph L. Smet, 2005 WI App 263
For Smet: Christopher A. Mutschler
Issue/Holding: Proof of “impairment” is not a necessary element of § 346.63, ¶¶12-16.
Section 346.63(1)(am) (driving under influence of detectable amount of THC, regardless of impairment) is constitutional as against police power, due process, and equal protection attack, ¶¶6.
Defenses – § 948.03(2)(b) (2001-02), Harm to Child – Defense of Parental Privilege, § 939.45(5)
State v. Kimberly B., 2005 WI App 115
For Kimberly B.: Anthony G. Milisauskas
Issue/Holding:
¶30 While Wis. Stat. § 939.45(5) recognizes the right of a parent to inflict corporal punishment to correct or discipline a child, that right of parental discipline has its limits. Kimberly seems to suggest that the statute prohibits only force that is “intended to cause great bodily harm or death” or that “create[s] an unreasonable risk of great bodily harm or death.” However,
SVP – Qualifying Placement, § 980.02(2)(ag) – Secure Facility, Juvenile Adjudication
State v. Tremaine Y., 2005 WI App 56, PFR filed 3/4/05
For Tremaine: Robert W. Peterson, Samantha Jeanne Humes, SPD, Milwaukee TrialI
Issue: Whether a ch. 980 petition is supported against a juvenile who was not placed in a secured correctional facility following the original adjudication on the qualifying sexually violent offense but was subsequently placed in such a facility as a result of additional offense.
Evidence, Admissibility – Sufficiency of Objection
State v. Van G. Norwood, 2005 WI App 218
For Norwood: Terry Evans Williams
Issue: Whether objection to admissibility of a defendant’s statement on the ground that it was “an offer of settlement” (which thus raised a § 904.08 bar) sufficed to raise a § 904.10 objection of an inadmissible offer to plead guilty.
Holding:
¶17 First, at the very least, trial counsel’s objection should have led the court to Wis.
Serial Litigation Bar (Escalona-Naranjo): Applicable to No-Merit Report, § 809.32 (Anders Appeal)
State v. Christopher G. Tillman, 2005 WI App 71
Tillman, pro se
Issue/Holding:
¶2. The issue on the instant appeal is whether the procedural bar of Escalona-Naranjo may be applied when a prior appeal was processed under the no merit procedure set forth in Wis. Stat. Rule 809.32. For the reasons stated below, we conclude that the procedural bar of Escalona-Naranjo,
No-Merit Appeal: Generally
State v. Christopher G. Tillman, 2005 WI App 71
Tillman, pro se
Issue/Holding:
¶16. The no merit appeal procedure has its genesis in Anders v. California, 386 U.S. 738 (1967), and is codified in Wis. Stat. Rule 809.32. … Any motion to withdraw pursuant to Anders “necessarily implicates the merits of an appeal, because the premise of the motion is that the appeal is frivolous.”
Terry Frisk – Scope, Generally
State v. Martin D. Triplett, 2005 WI App 255
For Triplett: Syovata Edari, SPD, Milwaukee Appellate / Milwaukee Trial
Issue/Holding:
¶11 Despite the fact-specific nature of our analysis, we glean from the case law several useful guiding principles. First, an officer should confine his or her search “strictly to what [is] minimally necessary” to learn whether an individual is armed. Id. at 30.