On Point: Published 2006

State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Where the appellate court is positioned equally to review the matter, whether labeled one of fact or of law, no deference need be given the trial court:

¶19      … (T)his court is in just as good a position as the circuit court to answer that question.

Herr v. Bradley D. DeBraska, 2006 WI App 29

Issue/Holding1: Where the defendant and victim had fully settled a civil claim for defendant’s liability arising out of the crime, but the defendant’s wages were subsequently garnished by the State to satisfy the restitution order in the criminal case, the trial court properly exercised discretion to reopen the civil judgment, to determine whether the civil judgment should be offset against the restitution order,

State v. Kevin Brown, 2006 WI App 41
For Brown: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding:

¶10      We first examine the trial court’s reliance on the earlier order and its determination that it was “the law of the case.” Citing Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 38, 435 N.W.2d 234 (1989), Brown argues:

The law of the case doctrine is inapplicable.

State v. Quentrell E. Williams, 2006 WI App 212
For Williams: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: ¶23, n.5:

 Williams also contends that the evidence was relevant to whether he intentionally caused harm to A.B.A. because intentional child abuse is a specific intent crime. However, Williams was acquitted of intentionally causing harm to a child. Thus, he cannot show that he was prejudiced in his defense as to intentionally causing harm to a child by his attorney’s failure to introduce that evidence.

State v. Randy Mcgowan, 2006 WI App 80
For Mcgowan: Dianne M. Erickson

Issue/Holding: Wrongful admission of misconduct evidence was reversible error:

¶37      Based on our review, we are not convinced beyond a reasonable doubt that the admission of Janis’s testimony did not contribute to the verdict. The State’s case was based entirely on various recollections about events that occurred years earlier. [3] The defense disputed many of those recollections and noted the lack of physical evidence of any sort corroborating physical abuse by a large man of a small child.

State v. Anthony D., 2006 WI App 218
For Anthony D.: Susan E. Alesia, SPD, Madison Appellate

Dicta: ¶7 n. 2:

We note that the language of the juvenile restitution statute differs from that of the criminal restitution statute, Wis. Stat. § 973.20. The criminal statute does not require the court to make a finding that the defendant can pay the restitution amount,

State v. Thomas G. Kramer, 2006 WI App 133, PFR filed 7/10
For Kramer: Timothy A. Provis

Issue/Holding: Any error in exclusion of evidence claimed necessary to support the theory of imperfect self-defense would have been harmless:

¶26      …  Our inquiry, therefore, is whether it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” Neder v.

State v. Bruce T. Davis, 2006 WI App 23
For Davis: Russell Bohach

Issue/Holding: Misjoined counts were harmful error, notwithstanding a curative instruction, where the only evidence connecting Davis to the crimes were eyewitnesses who, although they ID’ed Davis, gave “quite varied” descriptions to the police, ¶22.

State v. Ronnie L. Thums, 2006 WI App 173
For Thums: Paul G. LaZotte, SPD, Madison Appellate

Issue/Holding: The remedy for a sentence imposed under an incorrect penalty scheme is resentencing:

¶14      Both parties agree that if the sentence the circuit court imposed was improper, Thums is entitled to be resentenced as to both components of the bifurcated sentence. We have held that the court did err when it applied TIS-I statutes during sentencing because those penalties were obsolete before Thums’ conduct became chargeable as stalking with a dangerous weapon.

State v. Donald Odom, 2006 WI App 145
For Odom: Eileen Miller Carter; J.C. Moore, SPD, Milwaukee Trial

Issue/Holding: The requirement of sentencing after probation revocation that the judge review the original sentencing transcript, State v. Reynolds, 2002 WI App 15, 249 Wis. 2d 798, 643 N.W.2d 165 (Ct. App. 2001), does not apply to reconfinement after revocation of extended supervision, State v.