On Point blog, page 2 of 3
Evidence sufficent to show parent/child go-kart ride amounts to physical abuse of child; ditto as to parent’s decision to treat injuries at home rather than seek medical attention
State v. Nicholas M. Gimino, 2012AP1498-CR, District II/IV, 3/7/13 (unpublished); case activity.
While this decision is not recommended for publication, it highlights a very touchy subject–when does conduct many parents engage in rise to the level of physical abuse of a child? The answer may surprise you.
Here’s what happened. Gimino took his 2-year-old daughter for a ride on a motorized go-kart having no sides or roof.
First Amendment – Overbreadth: Sexual Assault of Child, § 948.02, Not Unconstitutionally Overbroad re: “Proper Medical Purpose”
State v. Christopher J. Lesik, 2010 WI App 12, PFR filed
For Lesik: Anthony Cotton
Issue/Holding: Sexual assault (intercourse) of a child, § 948.02, isn’t unconstitutionally overbroad, against a theory that it criminalizes acts undertaken for “proper medical purpose.” Although the statute is silent with respect to medical conduct, potential overbreadth may be cured through judicial construction and the court therefore “conclude(s) here that ‘sexual intercourse’ as used in the sexual assault of a child statute does not include ‘bona fide medical,
Distribution of Harmful Material to Children, § 948.11(2)(am) – Internet Chat Room Communication is “Verbal” Communication, within Statute
State v. Shawn B. Ebersold, 2007 WI App 232
For Ebersold: Lester A. Pines
Issue: Whether message sent via Internet chat room supports prosecution for § 948.11(2)(am), verbally communicating harmful material to child.
Holding:
¶9 In this case, the parties dispute whether Wis. Stat. § 948.11(2)(am) prohibits communication of a harmful description or narrative account to a child via an Internet chat message.
Double Jeopardy – Multiplicity: Repeated Sexual Assault, § 948.025(1) – Different Counties
State v. Thomas A. Nommensen, 2007 WI App 224
For Nommensen: Anthony L. O’Malley
Issue/Holding: Although charges of repeated sexual assault, § 948.025(1) were the same in law, they were different in fact because they :
¶8 Charged offenses are not multiplicitous if the facts are either separate in time or of a significantly different nature. Id. at 749. “The appropriate question is whether these acts allegedly committed … are so significantly different in fact that they may properly be denominated separate crimes although each would furnish a factual underpinning or a substitute legal element for the violation of the same statute.” Id.
§ 948.02(2), Attempted Sexual Assault (Intercourse); § 948.07 (Attempted) Enticement – Initiated Over Internet – First Amendment
State v. James F. Brienzo, 2003 WI App 203, PFR filed 10/10/03
For Brienzo: Jerome F. Buting
Issue/Holding: Prosecution for attempted sexual assault of a child initiated over the Internet isn’t barred by the first amendment. ¶¶23-24, applying State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287 (permitting prosecution for enticement). Same re: attempted enticement, ¶2:
We conclude that pursuant to State v.
Multiplicity: § 948.12, Child Pornography – Photographs Stored on Disk
State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03
For Schaefer: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: Individual pornographic photos, all found on the same storage disk, support individual charges, it being “reasonable to assume that the existence of multiple files on the Zip disk demonstrates that Schaefer made a new decision to download a particular image file.9 Therefore, each image file ‘represent[s] a new volitional departure,’ and the charges against Schaefer are different in fact.” ¶50.
First Amendment – Child Enticement Initiated Over Internet
State v. Brian D. Robins, 2002 WI 65, on bypass
For Robins: Craig W. Albee
Issue: Whether prosecution for child enticement initiated over the Internet violates the first amendment.
Holding: The first amendment doesn’t extend to speech that is incidental to or part of the criminal course of conduct.
¶43. The child enticement statute regulates conduct, not speech. The statute protects against the social evil and grave threat presented by those who lure or attempt to lure children into secluded places,
§ 948.11(2) — Exposing Minors to Harmful Materials — Constitutionality
State v. John T. Trochinski, 2002 WI 56, affirming unpublished decision
For Trochinski: James L. Fullin, SPD, Madison Appellate
Issue: Whether § 948.11(2) is unconstitutional because it doesn’t require proof of knowledge of the age of the person to whom harmful materials are displayed (minority being the sole differentiating factor between noncriminal/protected and criminal conduct.
Holding:
¶39. We conclude that the constitutionality of Wis.
Double Jeopardy – Multiplicity: Child Pornography – Possession of Materials Stored on Disks
State v. James E. Multaler, 2002 WI 35, affirming 2001 WI App 14, 246 Wis. 2d 752, 632 N.W.2d 89
For Multaler: Jeffrey W. Jensen
Issue/Holding:
¶58. Applying these standards, we agree with the court of appeals that the 28 counts to which Multaler pled were not identical in fact. Although some of the downloaded image files contained multiple images,
Due Process / Right to Unanimous Verdict – Jury Agreement on Underlying Acts
State v. William G. Johnson, 2001 WI 52, 243 Wis. 2d 365, 627 N.W.2d 455
For Johnson: Martha K. Askins, SPD, Madison Appellate
Issue: Whether § 948.025 (repeated sexual assault of a child) violates the rights to due process and unanimous verdict by not requiring unanimity that each predicate act occurred.
Holding: Unanimity is required on the elements of an offense, but generally not the alternate modes of commission unless required by considerations of due process.