On Point: 3. Elements of offenses

State v. Leonard J. Quintana, 2008 WI 33, affirming 2007 WI App 29
For Quintana: James B. Connell, Robyn J. DeVos, William R. Kerner

Issue/Holding:

¶70      To constitute mayhem, the State must show that the defendant had (1) the specific intent to disable or disfigure; (2) by cutting or mutilating the tongue, eye, ear, nose, lip, limb, or other bodily member;

State v. Reinier A. Ravesteijn, 2006 WI App 250
For Ravesteijn: Rudolph L. Oldeschulte

Issue/Holding: Kidnapping is mitigated from a Class B to Class C felony if the victim is released without permanent physical injury prior to the first witness’s testimony, ¶17. When accepting a guilty plea to Class B kidnapping the court must ascertain a factual basis for excluding the Class C offense, at least where there is some evidence in the record to support it,

State v. Delano L. Terrell, 2006 WI App 166
For Terrell: Martin E. Kohler, Brian Kinstler, Christopher M. Eippert

Issue: Whether a sheriff’s deputy assigned to work as a court bailiff is a “correctional staff member” so as to come within § 940.225(2)(h).

Holding: A “correctional staff member” is defined as an individual who works at a correctional institution, § 940.225(5)(ad). Terrell was a deputy assigned to work as a courthouse bailiff—a courthouse isn’t a correctional institution,

State v. Ronnie L. Thums, 2006 WI App 173
For Thums: Paul G. LaZotte, SPD, Madison Appellate

Issue/Holding: Use of a weapon is an element of stalking with a dangerous weapon, and the offense has therefore not been committed until the weapon has been employed (though the offense of stalking has been), ¶8 and id., n. 2.

State v. Reinier A. Ravesteijn, 2006 WI App 250
For Ravesteijn: Rudolph L. Oldeschulte

Issue/Holding: Kidnapping is mitigated from a Class B to Class C felony if the victim is released without permanent physical injury prior to the first witness’s testimony, ¶17. When accepting a guilty plea to Class B kidnapping the court must ascertain a factual basis for excluding the Class C offense, at least where there is some evidence in the record to support it,

State v. Steven A. Harvey, 2006 WI App 26
For Harvey: Christopher William Rose

Issue/Holding: Rejecting the JI Committee definition of “cunnilingus,” the court “ conclude(s) that the statutory scheme of the sexual assault law does not require proof of ‘stimulation of the clitoris or vulva,’” ¶¶11-21.

¶21      The complaint and the undisputed evidence presented at the preliminary hearing demonstrated that Harvey performed an act of nonconsensual cunnilingus by placing his mouth on the victim’s genital area.

State v. Michael A. DeLain, 2005 WI 52, affirming, as modified, 2004 WI App 79
For DeLain: Robert R. Henak

Issue/Holding:

¶9        To obtain a conviction for a violation of Wis. Stat. § 940.22(2), the State must prove three elements beyond a reasonable doubt:  (1) that the defendant was or held himself or herself out to be a therapist; (2) that the defendant had intentional sexual contact with a patient or client;

State v. William E. Draughon III, 2005 WI App 162, (AG’s) PFR filed
For Draughton: Stephen L. Miller

Issue/Holding: Draughon, a pastor, was concededly a “clergy” member within § 940.22(2); however, the instructions relieved the State of its burden of proof on the element of whether he performed “therapy” in this capacity, in that they told the jury that a member of the clergy is a “therapist,” without specifically requiring that Draughon in fact performed therapy:

¶13      Jury instructions that have the effect of relieving the State of its burden of proving beyond a reasonable doubt every element of the offense charged are unconstitutional under the Fifth and Sixth Amendments.

State v. Stephen L. Jensen, 2000 WI 84, 236 Wis. 2d 521, 613 N.W.2d 170, affirming unpublished decision
For Jensen: James L. Fullin, SPD, Madison Appellate

Issue1: Whether the first degree reckless injury (§ 940.23(1)) element of “utter disregard for human life” requires proof of the actor’s subjective awareness of the risk of death.

Holding: “¶17 Although ‘utter disregard for human life’ clearly has something to do with mental state,

State v. Jene R. Bodoh, 226 Wis.2d 718, 595 N.W.2d 330 (1999), affirming State v. Bodoh, 220 Wis.2d 102, 582 N.W.2d 440 (Ct. App. 1998)
For Bodoh: Michael D. Mandelman

Holding: A dog can be a dangerous weapon if used or intended or intended to be used in a manner calculated or likely to cause death or great bodily harm. (This holding has the effect of ratifying a prior court of appeals decision on this point,