On Point blog, page 3 of 12
Boyfriend can’t assert defense based on girlfriend’s privilege to “reasonably discipline” her child
State v. Glen Artheus Beal, 2014AP2534-CR, 9/22/15, District 1 not recommended for publication); case activity
A jury convicted Beal of child abuse as a party to a crime because multiple witnesses testified that he punched his girlfriend’s daughter and also restrained the daughter so that her mother (his girlfriend) could hit her. See §939.05(2)(a) and §939.45(5). Beal argued that although he was not entitled to assert the parental discipline privilege himself, he should have been able to present a defense based on his girlfriends’ right to assert that privilege.
“Capturing a representation” under § 948.14 doesn’t cover cutting pictures from magazines or newspapers
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.
Credible victim supports adjudication on one count, but trial court’s mistake of law invalidates adjudication on second count
State v. Arron A.-R., 2014AP142, District 1, 6/2/15 (one-judge decision; ineligible for publication); case activity
Arron delinquency adjudication for one count of first degree sexual assault is supported by the testimony of the victim, S.F., but the adjudication for a second count is reversed because the trial court erred in believing that the charge required only sexual contact, not sexual intercourse.
Victim’s inconsistent testimony didn’t make testimony inherently or patently incredible
State v. Brandon L. P-D., 2014AP2785, District 4, 5/14/15 (one-judge decision; ineligible for publication); case activity
The court of appeals rejects Brandon’s arguments that the evidence was insufficient to support his delinquency adjudication for incest because of the victim’s inconsistent testimony. The court also rejects his arguments that the circuit court erred in denying his motion for in camera review of the victmi’s medical records and in excluding evidence of a previous sexual assault of the victim.
Misleading jury instruction regarding “computerized communication system” under § 948.075 requires new trial
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.”
Trial counsel’s failure to object to jury instruction deprives appellant of right to challenge sufficiency of evidence
State v. Addison F. Steiner, 2013AP2629-CR, district 4, 10/16/14 (not recommended for publication); case activity
This case raises an issue that even the court of appeals deemed to be of first impression. Does §948.20, which criminalizes abandonment of a child, require an intent to abandon a child permanently, or is leaving a child alone for 1 or 2 hours enough? If the latter, then how is “child abandonment” different from “child neglect” under §948.21? The court of appeals refused to address the issue for reasons that should trouble anyone challenging the sufficiency of the evidence to support a jury verdict.
Defendant’s rights to free speech and religious freedom were not violated by prosecution for conspiracy to commit child abuse based on his preaching the use of the rod for child discipline
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.
Exposing genitals to a child, § 948.10, is limited to situations involving face-to-face contact and therefore doesn’t cover “sexting”
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,
Repeated child sexual assault, § 948.025: instruction on first degree child sexual assault as lesser-included; other acts evidence; date of offense; ineffective assistance of counsel
State v. Robert T. Warriner, 2012AP244-CR, District 2/1, 7/2/13; court of appeals decision (not recommended for publication); case activity
Instruction on first degree child sexual assault as lesser-included of repeated child sexual assault
At trial the child testified that Warriner sexually assaulted her on only two occasions, so the trial court agreed, over Warriner’s objections, to read the instruction for first-degree sexual assault of a child, § 948.02(1).
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.