On Point blog, page 11 of 13
§ 940.225(2)(g), Sexual Assault – Elements: Employee of In-Patient Treatment Facility Within § 940.295(2) / § 50.135(1)
State v. John F. Powers, 2004 WI App 156
For Powers: Marcus J. Berghahn; John D. Hyland
Issue/Holding: An employee of the Tomah VA Medical Center is not an employee of an in-patient treatment facility within the meaning of §§ 940.225(2)(g), 940.295(2)(b), (c), (h), (k), and 50.135(1), because the Center is not licensed or approved by DHFS, ¶11, and the pending charge under that section must therefore be dismissed,
Double Jeopardy – Multiplicity: Battery, by Prisoner and Simple
State v. Jimmie Davison, 2003 WI 89, reversing 2002 WI App 109, 235 Wis. 2d 715, 647 N.W.2d 390
For Davison: Keith A. Findley, UW Law School, Criminal Appeals Project
Issue/Holding: The legislature did not intend to preclude cumulative punishments for both aggravated battery, § 940.10(6) and battery by prisoner, § 940.20(1), for the same conduct. ¶¶47-111.
Common Law Defenses – Causation, Homicide – “Year and a Day” Rule
State v. Waylon Picotte, 2003 WI 42, on certification
For Picotte: John T. Wasielewski
Issue: Whether conviction for homicide is barred because the victim did not die within a year and a day of infliction of the fatal injuries.
Holding:
¶5. We disagree with the circuit court and hold that the defendant’s conviction in this case is barred by the common-law year-and-a-day rule.
Defenses – Privilege, § 939.45 – CCW, § 941.23
State v. Munir A. Hamdan, 2003 WI 113, on bypass
For Hamdan: Chris J. Trebatoski
Issue/Holding: Wis. Const. Art. I, § 25 (right to bear arms) does not establish a privilege defense to CCW, § 941.23, under § 939.45.
As to subs. (1): “The existence of random, albeit frequent, criminal conduct in one’s vicinity does not qualify as a ‘natural physical force’ under the law.
§ 940.01, First-Degree Intentional Homicide — Sufficiency of Evidence
State v. Evan Zimmerman, 2003 WI App 196, (AG) PFR filed 9/10/03
For Zimmerman: Keith A. Findley, UW Law School
Issue/Holding: Although “most of the persuasive evidence against” Zimmerman was his own statements and alibi; and although a conviction may not be based solely on a negative inference drawn from the defendant’s own version, other evidence sufficiently supported the conviction, including: “evidence of his obsessive behavior,
§ 940.03, Felony Murder — PTAC Allegation Superfluous
State v. Theodore J. Krawczyk, 2003 WI App 6, PFR filed 1/21/03
For Krawczyk: John T. Wasielewski
Issue/Holding:
¶25. Krawczyk next argues that he was incorrectly charged as “a party to the crime” of felony murder and that this error also rendered his plea to that offense unknowing. We agree with Krawczyk that the State did not need to include the party-to-a-crime allegation in the felony murder charge.
Battery to, and Intimidation of, a Witness § 940.201(2)(a) and (b) — Elements
State v. Anthony M. Cotton, 2003 WI App 154
For Cotton: Timothy T. Kay
Issue/Holding:
¶19. Following the preliminary hearing and bindover, the State filed an information containing new charges pertaining to Cotton’s encounter with Paikowski-one count of battery or threat of battery to Paikowski and a further similar count regarding Paikowski’s family pursuant to Wis. Stat. § 940.201(2)(a) and (b). These charges require the State to prove beyond a reasonable doubt that (1) the defendant caused or threatened to cause bodily harm to the victim or victim’s family,
§ 940.02 (1969), Second-Degree Intentional Murder — Sufficiency of Evidence (Battered Child)
State v. Arden C. Hirsch, 2002 WI App 8For Hirsch: Paul G. LaZotte, UW Law School, LAIP
Issue: Whether the evidence was sufficient to sustain conviction for second-degree murder, § 940.02 (1969).
Holding: Discrepancies between the parent’s version of what happened to the child and medical expert testimony as to what could not have, or what must have, happened to produce the injuries is crucial. ¶7. Persuasive medical evidence that the child died as result of sever injury,
§ 940.02, First Degree Reckless Homicide — Refusal to Instruct on, as Lesser Offense
State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds
Issue: Whether the first-degree intentional homicide defendant was entitled to an instruction on the lesser offense of first-degree reckless homicide.
Holding: Barreau must show a reasonable basis for negating intent to kill. The victim was killed by multiple blows to the head with a baseball bat.
§ 940.31(1)(b), Kidnapping — Sufficiency of Evidence — “Confinement”
State v. Charles J. Burroughs, 2002 WI App 18
For Burroughs: William F. Mross
Issue/Holding: The term “confine” has been defined under § 940.30 (false imprisonment), to mean compelled deprivation of free movement. ¶18. Therefore, the definition of “confine” in Wis JI-Criminal No. 1275 applies to kidnapping. ¶19. Applying that definition: physical force isn’t essential; nor is the victim required to undertake the risk presented by an opportunity to escape.