On Point: 3. Elements

State v. Kimberly B., 2005 WI App 115
For Kimberly B.: Anthony G. Milisauskas

Issue/Holding: “¶22      … The crime of physical abuse of a child, as applied to the matter at hand, requires proof beyond a reasonable doubt of the following three elements: (1) Kimberly caused bodily harm to Jasmine, (2) Kimberly intentionally caused such harm, and (3) Jasmine had not attained the age of eighteen years at the time of the alleged offense. 

State v. Marketta A. Hughes, 2005 WI App 155, PFR filed
For Hughes: John T. Wasielewski

Issue/Holding:

¶16      We conclude that the plain language of the statute makes clear that a seventeen-year-old employed by a parent to care for the parent’s child can be a person responsible for the welfare of the child. The record reflects that Marketta freely chose to assume responsibility for the welfare of Bryan at her mother’s request.

State v. Thomas Scott Bailey Smith, Sr., 2005 WI 104, reversing 2004 WI App 116
For Smith: Patrick M. Donnelly, SPD, Madison Appellate

Issue/Holding1:

¶15      Here, too, we examine the statute providing for the crime, Wis. Stat. § 948.22(2), to determine the elements of the crime of failure to pay child support, and we focus on the conduct that is prohibited therein.

State v. Todd M. Jadowski, 2004 WI 68, on certification
For Jadowski: Richard Hahn

Issue: Whether a minor sexual assault complainant’s intentional misrepresentation of his or her age supports an affirmative defense to § 948.02(2) sexual assault.

Holding:

¶19. The defendant acknowledges that Wis. Stat. §§ 948.02(2), 939.23, and 939.43(2) prohibit an actor from raising mistake about the age of the minor as a defense to the charge of sexual assault.

State v. John S. Provo, 2004 WI App 97, PFR filed 5/7/04
For Provo: William H. Gergen

Issue/Holding: “… We hold that § 948.07 requires only that the defendant cause the child to go into any vehicle, building, room, or secluded place with the intent to engage in illicit conduct, but not that the child necessarily be first separated from ‘the public,’” ¶1. That is,

State v. James F. Brienzo, 2003 WI App 203, PFR filed 10/10/03
For Brienzo: Jerome F. Buting

Issue: Whether attempted sexual assault of a child (by intercourse), § 948.02(2), is a crime known to law, in that the offense lacks an intent element and any crime of intent, § 939.32, requires specific intent for the completed act.

Holding: Sexual contact explicitly requires “intentional touching,” and therefore supports a charge of attempted assault by contact, 

State v. Michael J. Forster, 2003 WI App 29, PFR filed 1/31/03
For Forster: Martha K. Askins, SPD, Madison Appellate

Issue: Whether designation of “breast,” in § 939.22(19), applies to males as well females, so that touching of a male breast may constitute sexual assault.

Holding: The statute plainly applies to the “intimate parts,” including “chest,” “of a human being,” and therefore applies to both genders.

State v. John A. Jipson, 2003 WI App 222
For Jipson: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: The specifically prohibited “purpose” of sexual contact (i.e., sexual degradation, humiliation, arousal, or gratification) is not listed in § 948.02(2), but is nonetheless defined in § 948.01(5) as an element. ¶9 and id., n. 4, following State v. Bollig, 2000 WI 6, ¶50, 232 Wis.

State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03
For Schaefer: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶32. Schaefer claims that by allowing conviction for possession of child pornography when a defendant “reasonably should know” that the child depicted is under eighteen years of age, Wis. Stat. § 948.12 omits a scienter requirement for the offense. He contends that in expressing the intent element regarding the minority of the depicted child in the pornographic materials as “knows or reasonably should know,”

State v. John A. Jipson, 2003 WI App 222
For Jipson: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: On a charge of 2nd-degree sexual assault, § 948.02(2), the guilty plea court must ascertain the defendant’s knowledge of the element of intent, namely that the defendant had sexual contact for the purpose of sexual degradation, humiliation, arousal, or gratification. It is insufficient to advise the defendant merely that “knowing contact” was necessary,