On Point: 1. Constitutional issues

State v. Keith Kenyon, 2022AP2228-CR, 9/16/25, District I (recommended for publication); case activity

Although COA is surprisingly candid in acknowledging some of the injustices present in this appeal, the Court ultimately concludes that Kenyon’s constitutional challenge is foreclosed by existing precedent.

State v. Jacob Richard Beyer, 2022AP2051, 1/11/24, District 4 (not recommended for publication); case activity (including briefs)

Although Beyer labors mightily at conjuring up legal arguments for reversal, COA is uniformly unpersuaded and unimpressed by his arguments and affirms.

State v. McKellips, 2016 WI 51, 6/28/16, reversing a published court of appeals decision, 2015 WI App 31; case activity (including briefs)

SCOW here defines the phrase “computerized communication system” by separately defining each word, and then lumping together those definitions to conclude that text messages sent with a flip phone constitute “use of a computerized communication system.” It concludes that Wis. Stat. §948.075 is understood by persons of ordinary intelligence, and is therefore not unconstitutional; and that the circuit court’s jury instructions, while not perfect, were close enough. Additionally,  SCOW reminds the court of appeals that discretionary reversals under §752.35 are only for “exceptional cases.”

State v. James D. Heidke, 2016 WI App 55; case activity (including briefs)

The state charged Heidke with one count of use of a computer to facilitate a child sex crime. Heidke moved to dismiss the penalty enhancer in §939.617(1) because it violates the Equal Protection Clause of the Fourteenth and Eighth Amendments in that it has no rational basis to that crime and it is unconstitutional as applied to him.

Micah D. Stern v. Michael Meisner, 7th Circuit Court of Appeals No. 15-2558, 2/9/16

Stern’s conviction for using a computer to facilitate a sex crime against a child under § 948.075 is constitutional because the Wisconsin appellate court’s conclusion that the statute allows conviction based on the defendant’s “reason to believe” the victim is a minor was neither unreasonable nor unforeseeable.

Review of a published court of appeals decision; case activity (including briefs)

In this case the supreme court will address an important issue about the offense of using a computer to facilitate a child sex crime, § 948.075(1r). The court of appeals granted McKellips a new trial on a charge under that statute, holding the jury was erroneously instructed to decide whether McKellips’s cell phone constituted a “computerized communication system” when it should have been instructed to decide whether McKellips’s uses of the phone constituted communication via a “computerized communication system.” The supreme court might also address another issue that has implications beyond § 948.075: Namely, whether instructional error that isn’t objected to at trial can be a basis for a new trial in the interest of justice.

State v. Colton M., 2015 WI App 94; case activity

Colton challenges his delinquency adjudication for repeated acts of sexual contact with a child under the age of 16 under § 948.025(1)(e), arguing that applying the statute to him violates due process because it provides insufficient standards for distinguishing him from D., the victim, as both were 15 years old and both engaged in sexual activity. Colton also argues that prosecuting him rather than D. violates equal protection. The court concludes that, under the facts of this case, the statute is sufficiently definite to satisfy due process and there was a rational basis for prosecuting Colton instead of D.

State v. Christopher J. Oatman, 2015 WI App 76; case activity (including briefs)

The statute prohibiting a registered sex offender from intentionally photographing a minor without parental consent, § 948.14, violates the First Amendment because it “indiscriminately casts a wide net over expressive conduct protected by the First Amendment ….” (¶18, quoting State v. Stevenson, 2000 WI 71, ¶22, 236 Wis. 2d 86, 613 N.W.2d 90).

State v. Philip B. Caminiti, 2013AP730-CR, District 4, 3/20/14; court of appeals decision (not recommended for publication); case activity

The prosecution of Caminiti for conspiracy to commit child abuse, §§ 939.31 and 948.03(2)(b), based on his instructions to his congregants to use a rod to discipline their children did not violate his First Amendment rights to advocacy or freedom of religion.

State v. Zachary P. Stuckey, 2013 WI App 98; case activty

The court of appeals concludes that the prohibition in § 948.10 against exposing genitals to a child is a “variable obscenity” statute, and to avoid unconstitutional application it must be read to require proof the defendant knew he was exposing himself to someone under the age of 18. Because the statute does not explicitly include that element,