On Point blog, page 262 of 266
Obstructing – Unanimity – Course of Conduct; Obstructing – Sufficiency of Proof
State v. Jennette L. Ellifritz, 2010AP713-CR, District 2, 9/1/10
court of appeals decision (1-judge, not for publication); for Ellifritz: Gary Grass; BiC; Resp.; Reply
Obstructing – Unanimity – Course of Conduct
Because Ellifritz’s actions occurred during a single course of action, over a short (40-second) period of time, instructional failure to require agreement as to which separate act constituted obstructing didn’t violate her right to unanimous verdict;
Reasonable Suspicion – Continued Detention
City of Oshkosh v. Richard A. Selquist, 2010AP862, District 2, 9/1/10
court of appeals decision (1-judge, not for publication); for Selquist: Walter Arthur Piel, Jr.; BiC; Resp.; Reply
The police had reasonable suspicion to continue temporary detention of Selquist and to request filed sobriety testing while investigating a traffic accident:
¶7 … In reviewing whether the officer’s further investigation and request for field sobriety tests were warranted,
Incest – Sufficiency of Evidence
State v. Nick J. W., 2009AP2030-CR, District 4, 8/26/10
court of appeals decision (3-judge, not recommended for publication); for Nick J.W.: Joseph L. Sommers; BiC; Resp.; Reply
Incest – Sufficiency of Evidence
The 16-year-old complainant’s testimony that her biological father had sex with her sufficed to prove the crime of incest, the court rejecting the defense argument that, because she didn’t look at the perpetrator,
In Camera Inspection, Shiffra/Green Material
State v. Donovan L. Lewis, 2009AP2531-CR, District 4, 8/26/10
court of appeals decision (3-judge, not recommended for publication); for Lewis: Shelley Fite, SPD, Madison Appellate; BiC; Resp.; Reply
Defense access to a complainant’s privileged counseling records requires first convincing the trial court to conduct an in camera inspection to see if the records contain information material to innocence. And that requires showing a reasonable likelihood the records contain non-cumulative material information.
PAC – Burden of Proof
State v. David E. Steinke, 2009AP3207-CR, District 4, 8/26/10
court of appeals decision (1-judge, not for publication); for Steinke: Cody Wagner; BiC; Resp.; Reply
Driving with a prohibited alcohol content of .08 or more, second offense, is a crime and therefore subject to beyond-reasonable-doubt burden of proof. Sitting as trier of fact in a bench trial, the circuit arguably misapprehended the burden as greater weight of the credible evidence,
TPR- Ineffective Assistance – Change of Placement, Warnings; Disposition, Exercise of Discretion
State v. Jesenia R., 2009AP2906, District 1, 8/24/10
court of appeals decision (1-judge, not for publication); for Jesenia R.: Mary D. Scholle, SPD, Milwaukee Appellate
No prejudice resulted from counsel’s failure to object to violation of the change-of-placement notice requirement in § 48.357. ¶¶15-16.
The background is a bit fact-intensive. Roughly: The child (Elizabeth) had been placed with a foster family, who moved to Idaho and took Elizabeth with them,
Disorderly Conduct – Sufficiency of Evidence
State v. Kurt D. Schmidt, 2010AP551-CR, District 3, 8/24/10
court of appeals decision (1-judge, not for publication); for Schmidt: Andrew John Laufers; BiC; Resp.; Reply
Conviction for disorderly conduct was established by evidence that Schmidt, following a contentious divorce, left messages on his ex-wife’s answering machine cautioning her “to question (her) own personal assurance and insurance,” and falsely reporting that her stepmother had died.
Reasonable Suspicion – Traffic Stop
County of Milwaukee v. Katherine R. Harmon, 2010AP297, District 1, 8/24/10
court of appeals decision (1-judge, not for publication); for Harmon: Basil M. Loeb; BiC; Resp.
Traffic stop supported by reasonable suspicion of impaired driving based on: driving on lane-divider lines, crossing lane-divider by half-foot, and “jerkiness in … front steer tires.”
The court notes that while “merely weaving within the confines of a driver’s traffic lane is not sufficient to support reasonable suspicion sufficient to make a traffic stop …,
Harmless Error; Jury View
State v. Jason M. Bruckbauer, 2009AP1823-CR, District 4, 8/19/10
court of appeals decision (3-judge, not recommended for publication); for Bruckbauer: Dennis Schertz; BiC; Resp.; Reply
Harmless Error
Any error in admission of a pretrial ID of Bruckbauer from a photo array was harmless, where: the challenged ID didn’t directly implicate him in the homicide but merely placed him at the scene;
Reasonable Suspicion – Traffic Stop; OWI – Habitual Offender – Collateral Attack
State v. Randall L. Wegener, 2010AP452-CR, District 1, 8/18/10
court of appeals decision (1-judge, not for publication); for Wegener: Kirk B. Obear; BiC; Resp.
Reasonable Suspicion – Traffic Stop
Inclement winter weather didn’t obviate the need to stay within the proper lane, such that crossing the center line, even briefly a few times, provided reasonable suspicion to perform a traffic stop.
¶6 Wegener argues that Fabry did not have reasonable suspicion to conduct a traffic stop because he was driving appropriately for part of the time he was followed and blames his lack of control of his vehicle on the snowy weather conditions.