On Point blog, page 196 of 262
Evidence sufficient to support jury’s sexual assualt verdict against gynecologist; joinder of claims upheld
State v. Evan K. Saunders, 2013AP1229-CR, District 1, 11/5/13 (1 judge; ineligible for publication); case activity
This case concerns a gynecologist’s sexual assault of 4 different patients over 2 1/2 years.
Sufficiency of evidence: Fourth degree sexual assault requires proof that the defendant had “sexual contact” with the victim without her consent. Wis. Stat. § 940.225(3m). And “sexual contact,” among other things, requires evidence that the defendant acted either with intent to harm the victim,
Trial court’s findings of fact in support of reasonable suspicion were not clearly erroneous
State v. Nick A. Lutter, 2012AP2586, District 4, 10/31/13; court of appeals decision (1-judge; ineligible for publication); case activity
The circuit court’s findings of fact at the suppression hearing were not clearly erroneous, and they supported the court’s conclusion there was reasonable suspicion to stop Lutter. Among other reasons for the stop, the state trooper cited Lutter’s crossing the fog line twice and driving onto the fog line once.
OWI stop reasonable based on anonymous tip and confirmed veering over fog line
State v. Sandra Biancardi, 2013AP1351, District 2, 10/30/13 (1-judge, ineligible for publication); case activity
Biancardi was convicted of OWI. On appeal she argued that police unlawfully stopped her based on an uncorroborated, anonymous tip contrary to Illinois v. Gates, 462 U.S. 213 (1983). The court of appeals, citing State v. Post, 2007 WI 60, ¶24, 301 Wis. 2d 1,
Terry stop — reasonable suspicion based on presence at house that was subject to surveillance and scene of earlier transaction. Jury instruction — PTAC; identifying person defendant was alleged to be aiding or abetting.
State v. Roland Derliel Graham, 2013AP440-CR, District 1, 12/29/13; court of appeals decision (not recommended for publication); case activity
Reasonable suspicion for seizing defendant
¶15 We conclude that under the totality of the circumstances described by [Officer] Wiesmueller, there was reasonable suspicion to stop Graham. Graham was stopped on property that had been the subject of DEA and police surveillance for suspected drug activity. Earlier on the day of Graham’s arrest,
Sentencing — consideration of dismissed charge. Resisting/obstructing, § 946.41 — sufficiency of evidence.
State v. Earnest Lee Nicholson, 2013AP722-CR, District 1, 10/29/13; court of appeals decision (1-judge; ineligible for publication); case activity
Nicholson was arrested for felony battery of his girlfriend, Marnice Franklin, but the battery charge was dismissed after Franklin failed to appear to testify at trial; Nicholson was also charged with resisting an officer, and that charge proceeded to trial and a guilty verdict. (¶¶2-4). At sentencing on the resisting charge the judge made extensive remarks concerning the alleged battery,
Illegal arrest of driver in her garage doesn’t require suppression of blood test
State v. Kari L. Schiewe, 2012AP2767-CR, District 4, 10/24/13; court of appeals decision (1-judge; ineligible for publication); case activity
Applying well-established principles the court of appeals holds that despite the lack of field sobriety tests or other additional investigatory steps there was probable cause to arrest Schiewe for OWI based on information from witnesses and the officer’s own observations of Schiewe at her home. (¶¶14-19). Further, the subsequent blood draw from Schiewe was not tainted by the fact that the police arrested Schiewe in her garage,
Evidence of citizen complaints against arresting officer was not admissible to impeach officer’s truthfulness
State v. Richard P. Hessil, 2013AP944-CR, District 2, 10/23/13; court of appeals decision (1-judge; ineligible for publication); case activity
Hessil, charged with resisting an officer, disorderly conduct, and failure to obey a traffic officer, unsuccessfully moved to admit evidence of citizen complaints and police employment records to cast doubt on the arresting officer’s character for truthfulness, citing Wis. Stat. § 904.04(2). The evidence Hessil sought to admit included allegations of theft from an arrestee,
Court rejects sufficiency claim based on discrepancies between charging document and proof
State v. Dragisa Pavlovic, 2013AP1180-CR, District 2, 10/23/13; court of appeals decision (1-judge; ineligible for publication); case activity
Pavlovic was charged with bail jumping for violating bond conditions that included no contact with his wife or her residence. (¶2). One count alleged he had contact with his wife on July 23; the evidence at trial, however, showed only that he had contact with her residence that day;
Court upholds traffic stop based on improper flashing of high beams
Jackson County v. Robert J. Troka, 2013AP317, District 4, 10/17/13; court of appeals decision (1-judge; ineligible for publication); case activity
A police officer lawfully stopped a car traveling in the opposite direction that flashed its high beams at the officer twice, once within about a half mile of the officer, the second time within about 200 feet of the officer, even though the officer’s high beams were not on.
Failure to impeach witness with mental health condition. Failure to request WIs. J.I.-Criminal 245 on accomplice testimony. Interrogation — Miranda custody; interrogator’s comments on truthfulness
State v. Deandre J. Bernard, 2012AP750-CR, District 4, 10/17/13; court of appeals decision (not recommended for publication); case activity
Trial counsel’s failure to impeach witness with mental health condition was not prejudicial
Trial counsel was not ineffective for failing to impeach the credibility of a witness who testified that Bernard told her “I think I killed a boy.” Bernard argued the witness suffers from a mental condition that affects her perceptions and recollections and that trial counsel should have requested access to the witness’s mental health records and used the records to impeach her.