On Point blog, page 4 of 7
Curative Instruction; Theft by Fraud – Sufficiency of Proof
State v. Lea B. Kolner, 2010AP1233-CR, District 3, 11/2/10
court of appeals decision (1-judge, not for publication); for Kolner: R. Michael Waterman; BiC; Resp.; Reply
Curative Instruction
Any impropriety in the prosecutor’s opening statement (alleged comment on right to silence) was presumptively cured by the trial court’s instruction to disregard the entire opening statement.
¶11 Not all errors warrant a mistrial,
State v. Roy Lee Rittman, 2010 WI App 41
court of appeals decision; for Pittman: Kathleen M. Quinn; BiC; Resp. Br.; Reply Br.
Armed Robbery, § 943.32 – Dangerous Weapon
Although Rittman neither in fact possessed a dangerous weapon, his cautioning that no one would get hurt if the teller gave him money coupled with putting his hand in his pocket sufficed to prove the victim’s reasonable belief that he was threatening to use a dangerous weapon:
¶10 The statutes tell us in what is mostly a tautology that: “‘Reasonably believes’ means that the actor believes that a certain fact situation exists and such belief under the circumstances is reasonable even though erroneous.” Wis.
State v. Rene L. Fortun, 2010 WI App 32
court of appeals decision; for Fortun: Todd E. Schroeder
AG’s BiC; Resp Br; Reply
Forgery, § 943.38(1) – Altered Prescription
Altering the number of pills on a prescription and presenting the altered document to a pharmacist comes within the forgery statute, § 943.38(1).
State v. Rene L. Fortun, 2009AP1172-CR, Dist IV, 1/14/10
court of appeals decision; for Fortun: Todd E. Schroeder
Forgery, § 943.38(1) – Altered Prescription (Increasing Number of Pills)
Altering the number of pills on a prescription and presenting the altered document to a pharmacist comes within the forgery statute, § 943.38(1).
First Amendment (Freedom of Speech) – Applied to Identity Theft, § 943.201(2)(c): Charge Survives Strict Scrutiny
State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn
Issue/Holding: The identity theft charge against Baron, sending emails from Fischer’s account without authorization and with intent to harm his reputation as a government official, survives strict scrutiny analysis under the First Amendment (freedom of speech clause):
¶45 To survive strict scrutiny, the State has the burden to show that the “‘regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.’”
First Amendment (Freedom of Speech) – Applied to Identity Theft, § 943.201(2)(c): Content-Based Speech
State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn
Issue/Holding: The charge of identity theft, based on Baron’s alleged conduct in sending emails from Fischer’s account without authorization and with intent to harm his reputation, is “content based” within the meaning of First Amendment analysis:
¶38 In the case at hand, we conclude that Wis.
First Amendment (Freedom of Speech) – Applied to Identity Theft, § 943.201(2)(c): Regulation of Speech
State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn
Issue/Holding: First amendment analysis applies to an identity theft charge alleging that Baron sent emails from Fischer’s account without authorization and with intent to harm his reputation:
¶16 In order to determine if a First Amendment analysis is required, we must first consider whether conduct alone or speech,
Attempted Theft from Person, § 943.20(3)(e) – Sufficiency of Evidence
State v. Cleveland R. Tidwell, 2009 WI App 153, PFR filed 10/9/09
For Cleveland: Jeremy C. Perri, SPD, Milwaukee Appellate
Issue/Holding: Evidence held sufficient to sustain conviction for attempted theft from person, where Tidwell demanded money from a restaurant clerk, hit his fist on cash register and fax machine next to cash register, and tried to grab and take the fax machine:
¶10 In the case at bar,
§§ 779.02(5), 943.20(1)(b), Theft by Contractor – Elements – Claims Against Money in Trust Fund Must Be Paid Proportionately
State v. Angela A. Keyes / Matthew E. Keyes, 2008 WI 54, affirming in part and reversing in part, 2007 WI App 163
For both Keyes: Michael J. Devanie
Issue/Holding1:
¶21 The Keyes were charged with theft by contractor under Wis. Stat. § 779.02(5), part of Wisconsin’s construction lien law. … The statute prohibits the use of the money in the trust fund for any purpose other than paying claims until such time as the claims have been paid in full.
§ 943.10, Burglary – Sufficiency of Evidence – Owner’s Nonconsent
State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08
For Champlain: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶37 Owner nonconsent, like other elements of criminal offenses, may be proved by circumstantial evidence. See Bohachef v. State, 50 Wis. 2d 694, 700-01, 185 N.W.2d 339 (1971). The test on review is whether the evidence presented was sufficient to prove guilt beyond a reasonable doubt,