On Point: 3. Elements

State v. Thor S. Lancial, 2022AP146-CR, 1/5/22, District 3 (not recommended for publication); case activity (including briefs)

A jury convicted Lancial of 10 counts of possession of child pornography. On appeal, he argued that (1) the State’s evidence was insufficient to support the conviction and (2) the circuit court erred in denying his motion to suppress evidence that the police seized during their search of his cell phone. The court of appeals reversed on the second point and held that the pornography had to be excluded on remand.

State v. Daniel Wilson, 2017AP813-CR, 3/27/18, District 1 (not recommended for publication); case activity (including briefs)

This appeal raises, among others things, a novel issue specific to child sexual assault cases. Is the State actually required to prove the 2nd element of repeated child sexual assault–that at least 3 assaults took place “within a specified period of time” as §948.025(1)(b) plainly states? Or is it relieved of that burden by virtue of various opinions holding that the State does not have to prove the “specifics” of a child sexual assault?

State v. Darrin K. Taylor, 2016AP1956 & 1957, 12/20/2017, District 2 (not recommended for publication); case activity (including briefs)

Taylor was convicted at trial of seventeen charges related to sexual assault of a child, S.F. On appeal he attacks only his conviction for causing mental harm to a child and the associated bail-jumping count. He argues the evidence was insufficient to show that S.F. suffered “mental harm” as it is defined in the statute, or that his post-assault contact with her was a substantial cause of said harm.

State v. Gary Lee Wayerski, 2015AP1083-CR, District 3, 10/31/17 (not recommended for publication), petition for review granted 3/13/18, and modified, and afford as modified, 2019 WI 11; case activity (including briefs)

Rejecting Wayerski’s argument to the contrary, the court of appeals holds that a police officer alleged to have sexually assaulted two teenage boys could be convicted under § 948.095(3)(a), which prohibits a person over age 21 “who engages in an occupation or participates in a volunteer position that requires him or her to work or interact directly with children” from having sexual contact or sexual intercourse with a child “whom the person works or interacts through that occupation or volunteer position.” The court also rejects the challenges Wayerski makes to the conduct of his trial.

State v. Shannon Olance Hendricks, 2015AP2429-CR, 12/15/2016, District 1/4 (not recommended for publication), petition for review granted 5/15/17, affirmed, 2018 WI 15 ; case activity (including briefs)

A defendant pleading to a sexual assault involving sexual contact (as opposed to sexual intercourse) is required to understand the meaning of “sexual contact.” If he or she does not, he or she is entitled to plea withdrawal. State v. Jipson, 2003 WI App 222, ¶9, 267 Wis. 2d 467, 671 N.W.2d 18. Here, the court of appeals holds that a defendant pleading to child enticement with a purpose to engage in a sexual assault by “sexual contact” need not understand the meaning of this phrase.

State v. Anthony Darnell Davis, 2016 WI App 73; case activity (including briefs)

Davis argued that he could not be convicted of recklessly causing “great bodily harm” to a child where the injuries he inflicted were bone fractures which, by statute, qualify as only “substantial bodily harm.” See Wis. Stat. § 939.22(38). The court of appeals disagreed.

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.”

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. Albert J. Chagnon, 2015 WI App 66; case activity (including briefs)

Under § 948.14, no registered sex offender may intentionally “capture a representation” of a minor without consent of the minor’s parent or guardian. The phrase “captures a representation” is defined in § 942.09(1)(a) to mean “takes a photograph, makes a motion picture, videotape, or other visual representation, or records or stores in any medium data that represents a visual image.” The court of appeals concludes the phrase “captures a representation” cannot reasonably be construed to apply to Chagnon’s act of cutting pictures of minors from magazines and newspapers, pasting them into a notebook, and adorning the pictures with graphic sexual comments.

State v. Rory A. McKellips, 2015 WI App 31, petition for review granted 11/16/15, reversed, 2016 WI 51; case activity (including briefs)

McKellips is entitled to a new trial on charges he used a computer to facilitate a child sex crime because 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.”