On Point blog, page 11 of 12
§ 948.40(1), Contributing to delinquency of Minor — Sufficiency of Evidence — Intent Element
State v. Luther Williams, III, 2002 WI 58, on certification
For Williams: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: The evidence was sufficient to establish the intent element, and therefore to support conviction, for contributing to delinquency of a minor, § 948.40(1): “The jury reasonably could infer from the evidence that Williams was aware that his participation in illegal gambling with James D.
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.
Sexual Assault, § 948.02 — Multiplicity — Separate Charges, Attempted & Completed Sexual Assaults
State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams
Issue: Whether charges of completed and attempted sexual assault of the same victim were multiplicitous.
Holding:
¶34. The nature of the two acts was different because the attempted sexual assault was foiled by the victim’s resistance. There was some time separation between the two acts, sufficient for a question and answer.
§ 948.07, Enticement — Elements — Proof of Victim’s Age
State v. Timothy P. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359
For Koenck: Lew Wasserman
Issue: “(W)hether in a prosecution under § 948.07 the charges must be dismissed because the State cannot prove that the victim had not attained the age of eighteen [because the ‘victim’ is fictitious].” ¶7.
Holding:
¶28 Within the contemplation of WIS. STAT. § 948.07,
§ 948.12, Child Pornography — Computer Disk Storage
State v. James W. Whistleman, 2001 WI App 189
For Whistleman: Michael J. Devanie
Issue: Whether storage of images on a computer disk satisfies the “pictorial reproduction” element of § 948.12.
Holding:
¶7 … The computer disks taken from Whistleman’s residence produce visual images on the computer screen when a person inserts the disks into a computer and clicks on a file. We conclude the disks thus come within the ordinary meaning of “pictorial reproduction.”…
¶9.
§ 948.31, Interference with Child Custody/Abduction: Construction of Elements
State v. Stanley A. Samuel, 2001 WI App 25, 240 Wis. 2d 756, reversed, other grounds, 2002 WI 34
For Samuel: Robert R. Henak
Issue: Whether the evidence was sufficient to sustain conviction for interference with child custody, § 948.31(2) and abduction, § 948.30(1)(a).
Holding:
¶38 We adopt the State’s construction. So long as the defendant has had a hand in physically removing the child from the parents’ possession,
Double Jeopardy – Multiplicity: Sexual Assault — Distinct Intrusions
State v. William Koller, 2001 WI App 253, PFR filed
For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate
Issue: Whether distinct types of sexual assault (mouth-vagina and penis-vagina) necessarily support distinct counts.
Holding:
¶59 There is another reason Koller’s second multiplicity challenge fails. This second claim is directed primarily at the relationship between Count 4 (mouth-to-vagina contact), on the one hand, and Counts 3 and 5 (penis-to-vagina intercourse),
First Amendment – Scienter – Exposure to Harmful Materials via Internet, § 948.11
State v. Lane R. Weidner, 2000 WI 52, 235 Wis. 2d 306, 611 N.W.2d 684, on certification
For Weidner: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether § 948.11(2) is unconstitutional.
Holding:
¶43 In sum, we determine that Wis. Stat. § 948.11(2) is unconstitutional in the context of the internet and other situations that do not involve face-to-face contact. Because the statute does not require the State to prove a defendant’s knowledge of the victim’s age when disseminating materials deemed harmful to children,
§ 948.05, Sexual exploitation of child – constitutionality
State v. Joel R. Zarnke, 224 Wis.2d 116, 589 N.W.2d 370 (1999), reversing and remanding, 215 Wis.2d 71, 572 N.W.2d 491 (Ct. App. 1997)
For Zarnke: Michael R. Cohen, Wachowski, Johnson & Cohen
Issue/Holding:
¶ The issue before the court is whether Wis. Stat. § 948.05 prohibiting the sexual exploitation of a child violates the First and Fourteenth Amendments to the United States Constitution and Article I,
§ 948.02, Child Abuse — failing to protect child from sexual assault — elements — person responsible for child’s welfare.
State v. Suzette M. Ward, 228 Wis.2d 301, 596 N.W.2d 887 (Ct. App. 1999)
For Ward: Patricia L. Arreazola
Holding: The § 948.02(3) element, “person responsible for the welfare of a child,” was properly defined in jury instructions as “person employed or used by one legally responsible for the child’s welfare.” Payment, that is, isn’t required. Evidence of this element is therefore held sufficient, though the child care arrangement wasn’t fiscal.