On Point blog, page 78 of 262
COA: no right to defend property by pointing gun at woman who came to settle a bill
State v. Scott A. Walker, 2019AP1138, 11/7/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
A jury found Walker guilty of intentionally pointing a firearm at a person contrary to Wis. Stat. § 941.20(1)(c). He claims his trial lawyer was ineffective for failing to raise a defense under Wis. Stat. §§ 939.45(2) and 939.49(1), which provide a privilege “to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with the person’s property.” The court of appeals has some doubt that Walker adequately raised this claim at the Machner hearing, ¶¶6-7, but decides it anyway on the merits, holding there was no prejudice because the facts couldn’t possibly make out the defense.
Circuit court erroneously admitted hearsay at child sexual assault trial, but error was harmless
State v. Jeffrey D. Lee, 2018AP1507-CR, 11/5/19, District 1 (not recommended for publication); case activity (including briefs)
At a jury trial for child sexual assault, the circuit court admitted “other acts” evidence that Lee had similarly assaulted 5 other children. The court of appeals called the “other acts” evidence of the 3rd, 4th and 5th children “textbook hearsay,” held that the circuit court erred in admitting it, but affirmed based on the harmless error doctrine.
Order for restitution doesn’t duplicate civil judgment against defendant
State v. Michael A. Nieman, 2017AP1906-CR, 11/7/29, District 4, (1-judge opinion, ineligible for publication); case activity (including State’s brief)
Nieman, pro se, appealed an order for over $13,000 in restitution entered after he pled to felony theft by false representation. The court should not have awarded any restitution, he argued. Or, if restitution was permitted, then it should be zero due a civil judgment against him arising from the same conduct.
Family court order denying placement didn’t need to advise parent of conditions for return
G.K. v. S.C., 2019AP1645, 2019AP1646, & 2019AP1647, District 4, 11/7/19 (one-judge decision; ineligible for publication); case activity
S.C.’s parental rights to her three children were terminated due to continued denial of periods of physical placement under § 48.415(4) based on a family court order that denied her periods of physical placement. She argued the family court order could not be the basis for a TPR because it didn’t advise her of the conditions necessary for the children to be returned to her or for her to be granted placement or visitation. Maybe so, says the court of appeals, but the statute doesn’t require the family court order to do that.
Default judgment in TPR affirmed
State v. C.M., 2019AP1483, District 1, 11/5/19 (one-judge decision; ineligible for publication); case activity
The circuit court didn’t err in entering a default judgment against C.M. in her termination of parental rights proceeding.
COA affirms TPR of incarcerated parent
Waupaca County v. J.J., 2019AP805, 10/29/19, District 4 (one-judge decision; ineligible for publication); case activity
J.J. challenges the termination of his parental rights, alleging trial counsel was ineffective and lack of a factual basis for his no contest plea. The court of appeals rejects both claims.
Officer’s urge to “search for the truth” doesn’t justify an extension of a traffic stop
State v. Tunis Jay LeFever, 2019AP702-CR, District 2, 10/30/19, (1-judge opinion, ineligible for publication); case activity (including briefs)
An officer stopped LeFever for speeding, noticed that he had bloodshot eyes, and detected a faint odor of alcohol but wasn’t sure of the source. He asked LeFever to complete field sobriety tests. The officer noted indicators of impairment on some of the tests and LeFever’s bright green tongue. A PBT test did not detect the presence of alcohol in LeFever’s system. The officer suspected marijuana.
COA: ch. 51 jury doesn’t have to agree on whether you’re dangerous to self, others, etc.
Sauk County v. R.A.S., 2018AP2253, 10/31/2019, District 4 (one-judge decision; ineligible for publication); case activity
R.A.S. was committed after a ch. 51 jury trial. The county alleged and the court instructed on two forms of dangerousness–those in Wis. Stat. § 51.20(1)(a)2.c. and 2.d.. R.A.S. asked that the verdict form require the jury to agree on one, the other, or both to commit him, but the circuit court refused, instead submitting a form that just asked the jury if R.A.S. was “dangerous.” The court of appeals now affirms this decision, rejecting R.A.S.’s due-process claim and saying that In re Michael H., 2014 WI 127, 359 Wis. 2d 272, 856 N.W.2d 603, controls the question–though it in fact has only glancing relevance to the issue.
COA finds no error in denying mistrial for 3 evidentiary issues
State v. Ross Harris, Jr., 2018AP1667, 10/24/2019, District 4 (one-judge opinion; ineligible for publication); case activity (including briefs)
The charges in this case, disorderly conduct and battery, arose from an altercation in a hospital elevator. The state said Harris, newly a grandfather, had attacked A.D., the fiancé of his newborn grandchild’s maternal grandmother, while both were visiting the baby. Harris said it was A.D. who had attacked him.
Out-of-state deferred OWI prosecution counts as prior in Wisconsin
State v. Jeffery Scott Wiganowsky, 2019AP884-CR, District 4, 10/24/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Wiganowsky was charged for OWI in Wyoming in 2015. He negotiated a deferred prosecution agreement, which he successfully completed, so the charge was dismissed. But his driving privileges were administratively suspended due to his blood-alcohol content. (¶9). That counts as a prior OWI “conviction” under §§ 340.01(9r) and 343.307(1)(d).