On Point blog, page 94 of 262
Evidence sufficient to to support “failure to assume parental responsibility” finding in TPR appeal
State v. R.H., 2018AP1827, District 1, 12/4/18 (1-judge opinion, ineligible for publication); case activity
The standard of review doomed this appeal, which argued that there was insufficient evidence to support the trial court’s finding that R.H. failed to assume parental responsibility during the grounds phase of a TPR.
Mother’s testimony didn’t vouch for daughter’s honesty in violation of Haseltine rule
State v. Frederick Eugene Walker, 2018AP186-CR, District 1, 11/27/18 (not recommended for publication); case activity (including briefs)
Walker challenges his child sexual assault conviction, arguing the complaining witness’s mother improperly vouched for her daughter’s honesty. He also argues the trial court wrongly excluded evidence of the complaining witness’s sexual activity with another person. The court of appeals rejects his claims.
Court of appeals finds insufficient evidence to submit coercion defense to jury
State v. Dustin Charles Yenter, 2017AP2253, 11/29/18, District 4 (1-judge opinion; ineligible for publication); case activity (including briefs)
Yenter was convicted of OWI and driving with a PAC, both as first offenses. He wanted to argue that he had no choice but to drive drunk because he and his passengers had fled a fight in a rural area. The perpetrators chased them to his car and threw rocks at it, leaving them no time to decide who should drive. Yenter had the keys. They jumped into his car and he drove for 16 miles–until police stopped him.
Court of appeals finds factual basis for witness intimidation plea
State v. Noah Yang, 2018AP1461, 11/28/18, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
Yang pleaded to misdemeanor witness intimidation. He had been charged with felony child abuse, and, from the jail, had called his mother, telling her that if a witness didn’t show up, the prosecutor would drop the charge. In a later call, Yang’s mother acknowledged to Yang that she had been in touch with the alleged victim’s mother; the alleged victim did not, in fact, show up for trial.
Running away for six days is one violation of juvenile disposition order, not six
State v. D.L.L., 2018AP1064-FT, District 2, 11/21/18 (one-judge decision; ineligible for publication); case activity
D.L.L., who was under a delinquency dispositional order placing him at his mother’s home, ran away for six days. The state moved for sanctions, alleging six violations of the dispositional order, one for each day he was gone. The juvenile court agreed that each day could be a separate violation. The juvenile court was wrong.
COA: Officers had consent to enter home
State v. Kathryn M. Cooper, 2018AP1154, 11/21/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Cooper’s vehicle was involved in an accident and was found, damaged, in her driveway. An officer saw a light on near the back door of her home and went around back and knocked. Cooper waved him in. The officer told her he was investigating an accident.
Defendant not prejudiced by counsel’s failure to convey earlier plea offer
State v. Lorenzo D. Kyles, 2018AP296-Cr, District 1, 11/20/18, (not recommended for publication); case activity (including briefs)
This appears to be Wisconsin’s second application of Lafler v. Cooper, 566 U.S. 156 (2012), which modified the prejudice prong of Strickland‘s ineffective assistance of counsel test for situations where defense counsel failed to convey a plea offer and thereby caused the defendant to accept subsequent, potentially less favorable offer.
State’s amendment of charges at the close of evidence affirmed
State v. Brian M. Smits, 2017AP2141-Cr, District 2, 11/20/18, (1-judge opinion, ineligible for publication); case activity (including briefs)
The State charged Smits with obstruction, OWI 2nd, and operating with a PAC 2nd. The case was tried to a jury, After both sides rested, the State filed an amended complaint containing a 2nd obstruction charge. The court of appeals affirmed because Smits wasn’t prejudiced by the amendment.
Appellate lawyers don’t need transcripts to identify issues for appeal, says the court of appeals
State v. Robert James Pope, Jr., 2017AP1720-CR, 11/13/18, District 1 (not recommended for publication), petition for review granted 4/9/19, affirmed, 2019 WI 106, ; case activity (including briefs)
Here’s good one for SCOW. A jury convicted Pope of 2 counts of 1st degree homicide in 1996. His lawyer forgot to file a notice of intent. Twenty years later, the State stipulated to reinstatement of Pope’s direct appeal. He tried to order transcripts but couldn’t because the court reporters had destroyed their notes. The circuit court ordered a new trial, but the court of appeals reversed because his new lawyer could not predict what “colorable claims” lurked in transcripts that weren’t prepared and could never be reconstructed.
Defendant forfeited competency objection; had no right to counsel on OWI 2nd mischarged as OWI 1st
St. Croix County v. Kimberly L. Severson, 2017AP1111, 11/13/18, District 3, (i-judge opinion, ineligible for publication); case activity (including briefs)
This is a City of Eau Claire v. Booth redux. In 2001 Severson was charged with OWI 1st in Eau Claire County and convicted of a separate OWI 1st in St. Croix County. Had St. Croix conviction been properly charged as an OWI 2nd, Severson would have had a constitutional right to counsel. But te court of appeals, applying Booth, held that Severson’s failure to object to the St. Croix County circuit court’s lack of competency to proceed to judgment forfeited that issue for appeal.