On Point blog, page 163 of 263
Credible victim supports adjudication on one count, but trial court’s mistake of law invalidates adjudication on second count
State v. Arron A.-R., 2014AP142, District 1, 6/2/15 (one-judge decision; ineligible for publication); case activity
Arron delinquency adjudication for one count of first degree sexual assault is supported by the testimony of the victim, S.F., but the adjudication for a second count is reversed because the trial court erred in believing that the charge required only sexual contact, not sexual intercourse.
Using therapist as part of defense against TPR petition waived therapist-patient privilege
State v. Mary G., 2015AP55, 2015AP56, & 2015AP57, District 1, 6/2/15 (one-judge decision; ineligible for publication); case activity
At the grounds phase of the trial on a TPR petition, the circuit court properly ordered Mary G. to provide the State with notes from her mental health treatment provider and appropriately considered evidence regarding Mary’s failure to manage her medications.
Exigent circumstances justified warrantless entry to hotel room
State v. Jeffrey F. Smart, 2014AP2604, District 2, 5/27/15 (one-judge decision; ineligible for publication); case activity (including briefs)
The warrantless entry into Smart’s hotel room was supported by probable cause and justified by exigent circumstances because there was an objective basis to believe there was a risk to the safety of Smart’s children.
Defendant failed to show why he would have gone to trial but for counsel’s deficient performance
State v. Shaun M. Clarmont, 2014AP1043-CR, District 3, 5/19/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Even if trial counsel failed to investigate a defense to the charge to which Clarmont pled, Clarmont has not shown why he would have gone to trial and face the possibility of multiple convictions, including for two felony offenses, rather than accept a plea offer of a single misdemeanor conviction along with a very favorable sentencing recommendation from the state.
Restitution appropriate because defendant’s conduct during entire incident showed causal connection between crime and victim’s damages
State v. Chaz L. Brown, 2014AP1848-CR, District 3, 5/19/15 (one-judge decision; ineligible for publication); case activity (including briefs)
A “midsummer night’s attempt at self-help debt collection” (¶2) led to Brown being charged with disorderly conduct and battery. He was acquitted of the battery charges based on his self-defense claim, but he was convicted of the DC. (¶¶2-5). Based on Brown’s conduct during the entire incident, there was sufficient evidence showing a causal connection between Brown’s DC and the battery victim’s damages to support the trial court’s restitution order.
IAC claims based on Confrontation Clause violation fail due to defendant’s forfeiture by wrongdoing
State v. Royce L. Hawthorne, 2014AP1566/67, 5/12/15, District 1 (not recommended for publication); click here for briefs
Hawthorne filed a pro se appeal from the denial of his §974.06 postconviction motion, which raised 9 claims of ineffective assistance of postconviction counsel and 3 claims of ineffective assistance of appellate counsel. The court of appeals dispensed with on and all in short order. Two aspects of the decision may be of interest.
Victim’s inconsistent testimony didn’t make testimony inherently or patently incredible
State v. Brandon L. P-D., 2014AP2785, District 4, 5/14/15 (one-judge decision; ineligible for publication); case activity
The court of appeals rejects Brandon’s arguments that the evidence was insufficient to support his delinquency adjudication for incest because of the victim’s inconsistent testimony. The court also rejects his arguments that the circuit court erred in denying his motion for in camera review of the victmi’s medical records and in excluding evidence of a previous sexual assault of the victim.
Officer’s “request” that person come over and talk wasn’t a seizure
State v. Juan Francisco Rosas Vivar, 2014AP2199-CR, District 4, 5/14/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Vivar wasn’t seized for Fourth Amendment purposes when an officer “called out” to Vivar in as he walked across a parking lot, saying “Juan, can you come talk to me?”
Blood draw by paramedic in jail was reasonable and complied with § 343.305(5)(b)
County of Sauk v. Thomas D. McDonald, 2014AP1921, District 4, 5/7/15 (one-judge decision; ineligible for publication); case activity (including briefs)
McDonald was arrested for OWI and taken to the county jail, where his blood was drawn by a paramedic employed by the city’s ambulance service. Contrary to McDonald’s claims, his blood draw was constitutionally reasonable and the paramedic who performed the blood draw was a “person acting under the direction of a physician,” as required by § 343.305(5)(b).
Discrepancy between officer’s testimony and written report doesn’t mean factual findings were clearly erroneous
State v. Andrew J. Joda, 2014AP1949 & 2014AP1950, District 2, 5/6/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Given the trial court’s conclusion that Deputy Becker’s testimony was more credible than Joda’s testimony, the court factual findings are not clearly erroneous just because there was a discrepancy between Becker’s testimony and his written report and Becker was unable to remember exactly where he was when he saw Joda make an illegal u-turn.