On Point blog, page 1 of 1
Stalking statute was not unconstitutional as applied to defendant; letters on which stalking convictions were based constituted a “true threat”
State v. Donald W. Maier, 2013AP1391-CR, District 4, 5/8/14 (not recommended for publication); case activity
The First Amendment did not preclude prosecuting Maier for stalking based on letters he sent because the letters constituted a “true threat” and thus were not protected speech.
Due Process – Notice of Charge – Sufficient to Allege Elements, Specific Acts Unnecessary
State v. Janet A. Conner, 2009 WI App 143, PFR filed 9/28/09
For Conner: J. Steven House
Issue/Holding: An information alleging the elements of stalking, § 940.32(2m)(b), but not the acts allegedly establishing the “course of conduct,” provided adequate notice of the charge; court rejecting argument that Connor deprived of notice of “time frame in which the crime allegedly occurred.”
State v.
§ 940.25(1)(am), Injury by Intoxicated Use of Motor Vehicle – Constitutionality
State v. Eric Benjamin Gardner, 2006 WI App 92
For Gardner: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding1: The elements of § 940.25(1)(am) – the defendant operated a vehicle with “a detectable amount of a restricted controlled substance in his or her blood, and the operation of the vehicle caused great bodily harm to the victim – do not create any presumption so as to relieve the State of its burden of proof,
§ 940.42, Attempted Intimidation of Witness – Multiplicity: Multiple Counts, Same Witness
State v. Alvin M. Moore, 2006 WI App 61, PFR filed 3/21/06
For Moore: Donna L. Hintze, SPD, Madison Appellate
Issue: Whether separate counts are supported for attempted intimidation of the same witness, representing each separate letter sent by the defendant to the witness imploring her not to testify against him.
Holding: Multiple counts are permissible, at least where each count is based on distinct facts,
Double Jeopardy – Multiplicity – Particular Crimes – Reckless Injury – Same Victim, Multiple Blows
State v. Rachel W. Kelty, 2006 WI 101, reversing unpublished decision
For Kelty: Michael J. Fairchild
Issue/Holding: The defendant’s striking the victim “twice with two separate objects, each time committing herself to strike the baby, each blow separate, distinct, not identical in fact,” supports two separate charges of first-degree reckless injury, § 940.23(1)(a), ¶¶49-50.
§ 940.09, Homicide by Intoxicated use of Vehicle (Boat) – Homicide by Intoxicated Use of Vehicle (Boat) – Constitutionality
State v. Peter A. Fonte, 2005 WI 77, reversing unpublished decision
For Fonte: Martha A. Askins, SPD, Madison Appellate
Issue/Holding: § 940.09 is constitutional, as against a challenge that it relieves the State of proving a causal connection between intoxication and death; reasoning in, and result of, State v. Caibaiosai, 122 Wis. 2d 587, 363 N.W.2d 574 (1985) reaffirmed, ¶38.