On Point blog, page 2 of 13
Admission of other acts evidence and sufficiency of evidence for homicide conviction affirmed
State v. Alberto E. Rivera, 2018AP952-CR, 4/30, District 1 (not recommended for publication); case activity (including briefs).
The State charged Rivera with a homicide and an attempted homicide that occurred in 2015. Before trial, it moved to introduce “other acts” evidence–a homicide that Rivera committed in 1997. The trial court tentatively denied the motion. But then Rivera’s counsel made a “strategic” decision to offer the evidence as part of his defense. So, as you might guess, the appellate challenge regarding the admission of this evidence failed.
SCOW finds no problem with problematic jury instructions on self-defense, accident
State v. Joseph T. Langlois, 2018 WI 73, 6/20/18, affirming a published court of appeals decision, 2017 WI App 44; case activity (including briefs)
A majority of the supreme court concludes that the jury instructions given in this case, when viewed in their entirety, accurately stated the law the jury needed to decide the case. Two dissenting justices disagree, concluding that when considered in their entirety, the instructions could have led the jury astray.
Court of Appeals construes “directed at” element of stalking statute
State v. Korry L. Ardell, 2017AP381-CR, District 1, 3/6/18 (not recommended for publication); case activity (including briefs)
Ardell was convicted of stalking in violation of § 940.32(2) for sending emails about N., a woman he had dated, to a former employer of N. (¶¶3-20). The court of appeals rejects his arguments that, under the plain language of the statute: 1) conduct or statements regarding N. but directed at a third party were irrelevant absent proof Ardell either intended such information to be passed on to the alleged victim or intended the third party to harass the alleged victim based on the information; and 2) the jury instructions failed to apprise the jury that the state had to prove that intent before they could convict him.
Home detention counts as “confined in a correctional institution” under § 940.225(2)(h)
State v. Jeff C. Hilgers, 2017 WI App 12; case activity (including briefs)
Hilgers, a correctional officer at a county jail, had sex with an inmate while she was on home detention. He was properly convicted of second degree sexual assault under § 940.225(2)(h), which prohibits a correctional officer from having sexual intercourse or sexual contact with “an individual who is confined in a correctional institution.”
Forgoing lesser-included instruction a reasonable strategic choice
State v. Terry S. Shannon, 2015AP922, 12/7/2016, District 2 (not recommended for publication); case activity (including briefs)
Terry Shannon appeals the denial of his Wis. Stat. § 974.06 motion. He was convicted, at trial, of first-degree intentional homicide; he alleges his trial counsel was ineffective for not requesting that the jury be instructed on second-degree intentional.
Of reasonable inferences and fearful jurors
State v. Isiah O. Smith, 2015AP1645-CR, 11/15/16, District 1 (not recommended for publication); case activity (including briefs)
Two guys walk into an apartment complex and leave a short time later. One carried a gun and a cell phone; the other a cell phone. They got into a car belonging to a friend of the guy carrying only the cell phone and drove off. A surveillance video captured these movements but not the shooting death that occurred in the complex at about the same time. Was there sufficient evidence to convict the guy holding just the cell phone of 2nd degree reckless homicide as a party to a crime?
Challenges to sufficiency of evidence and self-defense instruction in reckless homicide case rejected
State v. Phillip Kareen Green, 2015AP1126-CR, 4/26/16, District 1 (not recommended for publication); case activity (including briefs)
Green argues that the evidence was insufficient to convict him of first degree reckless homicide because it didn’t prove he acted with utter disregard for human life. He also argues for a new trial in the interest of justice on the grounds that: 1) the jury wasn’t fully instructed about the interaction between self-defense and the utter disregard element; and 2) important facts were not introduced or placed in proper context. The court of appeals rejects Green’s claims in a decision heavy on facts and light on analysis.
Dying declaration properly admitted
State v. Anthony R. Owens, 2016 WI App 32; case activity (including briefs)
The circuit court properly admitted the victim’s statements about who shot him under the dying declaration exception to the hearsay rule, and the admission of the victim’s statements didn’t violate the Confrontation Clause.
Multiple counts for single sexual assault were neither “inconsistent” nor multiplicitous
State v. Jama I. Jama, 2014AP2432-CR, District 4, 2/25/16 (not recommended for publication); case activity (including briefs)
Jama was convicted of both second degree sexual assault of a person too intoxicated to give consent, § 940.225(2)(cm), and third degree sexual assault (sexual intercourse or contact without consent), § 940.225(3), for the same act. The court of appeals rejects Jama’s claim that he can’t be convicted of both counts.
Court of appeals lowers evidentiary threshold for proving “mental deficiency” under Sec. 940.225(2)(c)
State v. Bernard Ikechukwel Onyeukwu, 2014AP518-CR, 2/26/15, District 4 (not recommended for publication); click here for briefs.
The State charged the defendant with 10 counts of sexual assault, 5 of which required proof that the victim suffered from a mental deficiency and that the defendant knew it. The jury acquitted on 6 counts. Just 2 of the convictions required proof of mental deficiency. They spawned interesting grounds for appeal, but this decision just wasn’t up to the task.