On Point blog, page 188 of 263
10-year history of drug-dealing deemed admissible in case where state declined to charge drug crimes
State v. Jimmy L. Powell, 2013AP1111-CR, 3/27/14, District 4; (not recommended for publication); case activity
This appeal stems from a 1st-degree reckless injury conviction. Powell, a drug dealer, ran over and/or cut his client’s throat during a deal. His enthusiastic, 38-page initial brief raises 7 issues for review. This post examines the court of appeals’ decision on 2 of them.
“Other Acts” Evidence Issue: Whether the circuit court erred in admitting “other acts”
TPR petitioner didn’t prove that father failed to assume parental responsibility
Mary E.B. v. Cecil M., 2014AP160, District 2, 3/26/14; court of appeals decision (1-judge; ineligible for publication), petition for review granted, 9/18/14, appeal voluntarily dismissed 12/17/14; case activity
The circuit court properly found that a mother who petitioned to terminate the father’s parental rights did not prove the father failed to assume parental responsibility, § 48.415(6). The court of appeals rejects the mother’s arguments that the circuit court applied an erroneous legal standard and that its decision is not supported by the record.
Complaint was sufficient to establish probable cause for operating controlled substance OWI
State v. Jeffrey D. Marker, 2013AP2725-CR, District 2, 3/26/14; court of appeals decision (1-judge; ineligible for publication); case activity
The circuit court erred in dismissing a complaint charging Marker with operating under the influence of a controlled substance because the complaint was sufficient to establish probable cause, applying Lofton v. State, 83 Wis. 2d 472, 478, 266 N.W.2d 576 (1978). After police received a tip about a reckless driver,
Police had reasonable suspicion to stop OWI defendant
State v. Jesse A. Van Camp, 2013AP2059-CR, District 3, 3/25/14; court of appeals decision (1-judge; ineligible for publication); case activity
Although an “[a]dmittedly … close case” (¶15), police had reasonable suspicion to stop Van Camp under all the circumstances, including his “somewhat evasive” driving behavior, even though they observed no specific criminal activity, applying State v. Anderson, 155 Wis. 2d 77, 84,
Defendant’s rights to free speech and religious freedom were not violated by prosecution for conspiracy to commit child abuse based on his preaching the use of the rod for child discipline
State v. Philip B. Caminiti, 2013AP730-CR, District 4, 3/20/14; court of appeals decision (not recommended for publication); case activity
The prosecution of Caminiti for conspiracy to commit child abuse, §§ 939.31 and 948.03(2)(b), based on his instructions to his congregants to use a rod to discipline their children did not violate his First Amendment rights to advocacy or freedom of religion.
Trial court’s failure to explain reasons for sentence saved by postconviction remarks
State v. Venceremos Crump, 2013AP2163-CR, District 1, 3/18/14; court of appeals decision (1-judge; ineligible for publication); case activity
The circuit court articulated its reasons for the sentence imposed on Crump as required by State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197, in light of the court’s comments in its order denying Crump’s postconviction motion, where it explicitly addressed the three primary sentencing factors and applied those factors to the facts of Crump’s case.
Deadline for requesting refusal hearing runs from the date the driver — not the court — received notice of intent to revoke
Oconto County v. Robert E. Hammersley, 2013AP1263, District 3, 3/18/14; court of appeals decision (1-judge; ineligible for publication); case activity
The 10-day time period to request a refusal hearing under § 343.305(10)(a) begins when the driver receives a copy of the notice of intent to revoke, not when the court receives a copy. Thus, where a notice of intent to revoke was filed in the circuit court well after the statute’s 10-day time limit had elapsed,
Suspension of visitation while TPR was pending did not violate due process
State v. Delano W., 2013AP2445 & 2013AP2446, District 1, 3/14/14; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP2445; 2013AP2446
The trial court did not violate Delano’s due process rights and properly exercised its discretion when it prohibited Delano from visitation with his children pending the trial on a petition to terminate his parental rights to those children.
Under § 48.42(1m),
Broken tail light, glassy eyes, and a wee wobble amount to probable cause for administering preliminary breath test
State v. Ross Timothy Litke, 2013AP1606-CR, 3/11/14, District 1 (1-judge opinion, ineligible for publication); case activity
This was a potentially interesting Daubert case. The police stopped the car Litke was driving because a tail light was out. The officer noticed Litke’s bloodshot eyes and asked if he had been drinking. “Yes, a few beers,” Litke replied. The officer thus conducted 3 field sobriety tests: the Horizontal Gaze Nystagmus test (which Litke flunked),
CHIPS petition failed to establish probable cause that child is in need of protection and services
John M.S. v. Marcy J.S., 2013AP2644-FT, District 2, 3/12/14; court of appeals decision (1-judge; ineligible for publication); case activity
Father’s petition under § 48.13(4) was insufficient because it fails to provide reliable and credible information and contain facts alleging that (1) the child “is in need of protection or services which can be ordered by the court” and (2) the parent “is unable or needs assistance to care for or provide necessary special treatment or care” for the child,