On Point blog, page 5 of 12
Jury Instructions – Elements, Exposing Child to Harmful Materials, § 948.11(2)(a)
State v. Esteban M. Gonzalez, 2011 WI 63, reversing, 2010 WI App 104; for Gonzalez: Frank J. Schiro, Kristin Anne Hodorowski; case activity
Gonzalez has shown a reasonable likelihood that the jury instructions relived the State of its burden to prove the element that he knowingly exhibited harmful material to a child.
The facts are essentially undisputed: Gonzalez watched pornography while care-taking his 3-year-old daughter,
Repeated Sexual Assault – Sufficiency of Evidence; Effective Assistance of Counsel
State v. Darrell Lemont Otis, 2010AP589, District 1, 2/1/11
court of appeals decision (3-judge, not recommended for publication); for Otis: Bryan C. Lichstein; case activity; Otis BiC; State Resp.; Reply
Repeated Sexual Assault – Sufficiency of Evidence
Repeated sexual assault, § 948.025(1)(b), requires proof of 3 elements: 3 or more sexual assaults; within a specified period of time;
Ineffective Assistance Claim – Necessity of Motion; Entrapment – Child Sex Crime with Computer
State v. Tushar S. Achha, 2009AP1977-CR, District 2, 1/26/11
court of appeals decision (3-judge, not for publication); pro se; case activity; State Resp.
Ineffective Assistance Claim – Necessity of Motion
Failure to preserve a challenge to trial counsel’s performance via postconviction motion waives the issue on appeal, ¶19.
Entrapment – Child Sex Crime with Computer
Challenge to sufficiency of evidence to negate entrapment defense rejected,
Multiplicity: § 948.40(1) (4)(a) as Lesser of § 940.02(2)(a); Contributing to Delinquency with Death as Result; Instructions – First-Degree Reckless Homicide; Prosecutorial Misconduct – “Haseltine”
State v. Patrick R. Patterson, 2010 WI 130, affirming 2009 WI App 181; for Patterson: David R. Karpe; Patterson BiC; State Resp.; Reply
Multiplicity – § 948.40(1) (4)(a) as Lesser Offense of § 940.02(2)(a)
Contributing to the delinquency of a minor with death as a result, § 948.40(1), (4)(a) is not a lesser offense of first-degree reckless homicide,
Incest – Sufficiency of Evidence
State v. Nick J. W., 2009AP2030-CR, District 4, 8/26/10
court of appeals decision (3-judge, not recommended for publication); for Nick J.W.: Joseph L. Sommers; BiC; Resp.; Reply
Incest – Sufficiency of Evidence
The 16-year-old complainant’s testimony that her biological father had sex with her sufficed to prove the crime of incest, the court rejecting the defense argument that, because she didn’t look at the perpetrator,
Recusal – Waiver; Guilty Plea – Factual Basis – Sexual Intercourse with Child
State v. Roger D. Godwin, No. 2009AP2999-CR, District 4, 8/5/10
court of appeals decision (1-judge, not for publication); pro se
Recusal – Waiver
¶10 Godwin argues that Judge VanDeHey should have recused himself from the case because one of the judge’s colleagues, Judge Curry, and other courthouse staff were Godwin’s victims in the bomb threat case. The State argues that the judge was not required to recuse under WIS.
Jury Instructions: Exposing Child to Harmful Materials – Accident Defense – Waiver; Evidence: Richard A.P. – Corroboration Rule; Evidence: Character – Polygraph Offer; Voluntary Statement
State v. Esteban M. Gonzalez, 2010 WI App 104, reversed, 2011 WI 63, see: this post; for Gonzalez: Kristin Anne Hodorowski; BiC; Resp.; Reply
Jury Instructions – Exposing Child to Harmful Materials
The pattern instruction on exposing a child to harmful material, § 948.11(2)(a), accurately recites the elements, including scienter.
¶11 We agree with the trial court’s assessment that the pattern instruction accurately states the law.
Child Enticement, § 948.07: “Secluded Place”
State v. Mitchell D. Pask, 2010 WI App 53; for Pask: Jefren E. Olsen, SPD, Madison Appellate; Resp. Br.; Reply Br.
¶1 … (W)hen there is evidence that a defendant has an intention to take a child to a place that is partially screened or hidden from view, a jury may find that it is with the purpose to take the child away from public safety.
Child Pornography: Knowing Possession – Viewing Digital Image on Computer
State v. Benjamin W. Mercer, 2010 WI App 47; prior history: Certification, 7/1/09, rejected 9/10/09; for Mercer: Steven P. Sager
A person can knowingly possess images of child pornography while viewing them on a computer, even though they aren’t stored on the hard drive.
¶29 Our impression of these cases is that courts are more concerned with how the defendants got to the website showing child pornography,
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,