On Point blog, page 7 of 12
Possession of Child Pornography, § 948.12(1m) – Jury Instructions – Unanimity: Agreement as to Which Picture Was Shown and Was Harmful
State v. Jason K. Van Buren, 2008 WI App 26, PFR filed 1/23/08
For Van Buren: Waring R. Fincke
Issue/Holding: Counsel’s failure to request a specific unanimity instruction with respect to juror agreement on which of the identified pictures was both harmful and shown to the victim was not prejudicial:
¶22 We reject this claim because Van Buren has not demonstrated the prejudice necessary to show ineffective assistance of counsel.
Guilty Pleas – Factual Basis – Particular Instances: Using Computer to Facilitate Child Sex-Crime
State v. Eric T. Olson, 2008 WI App 171
For Olson: Byron C. Lichstein
Issue/Holding: The “act other than element” of § 948.075(3) isn’t satisfied by either transmission of live video of the shirtless defendant, or by his prior sexual encounters with others he met on-line:
¶11 Accordingly, we read the statute to require that, before the State may obtain a conviction under WIS. STAT.
§ 948.02(2) – Elements, in Relation to Defense of Rape By the Child
State v. Monika S. Lackershire, 2007 WI 74, reversing 2005 WI App 265
For Lackershire: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶29 Lackershire’s second argument centers on the somewhat unique posture of this case. A violation of Wis. Stat. § 948.02(2) is generally viewed as a strict liability offense. Unlike other sexual assault offenses, where consent of the victim may be a central issue,
§ 948.025(3) – Prohibition on Multiple-Offenses in Same Proceeding – Remedy
State v. Jeffrey L. Torkelson, 2007 WI App 272, PFR filed 11/30/07
For Torkelson: Timothy A. Provis
Issue/Holding: The remedy for violation of the § 948.025(3) prohibition on charging multiple offenses in the same proceeding is limited to dismissal of the charges (not new trial):
¶26 … Wisconsin Stat. § 948.025(3) simply prohibits the State from charging certain enumerated offenses in the same action as a violation of § 948.025.
Distribution of Harmful Material to Children, § 948.11(2)(am) – Internet Chat Room Communication is “Verbal” Communication, within Statute
State v. Shawn B. Ebersold, 2007 WI App 232
For Ebersold: Lester A. Pines
Issue: Whether message sent via Internet chat room supports prosecution for § 948.11(2)(am), verbally communicating harmful material to child.
Holding:
¶9 In this case, the parties dispute whether Wis. Stat. § 948.11(2)(am) prohibits communication of a harmful description or narrative account to a child via an Internet chat message.
§ 948.31, Interference with Child Custody – Sufficiency of Evidence – Presence of Parent
State v. Isaiah Bowden, 2007 WI App 234
For Bowden: Jason R. Farris
Issue/Holding: Conviction for interference with custody, § 948.31(2), doesn’t require that the child be within the parent’s immediate presence or control:
¶18 The State posits that the withholding method of interference focuses on permission, not being in the parent’s presence. We agree. The withholding method addresses a situation where the person who takes the child has some initial permission to do so.
Double Jeopardy – Multiplicity: Repeated Sexual Assault, § 948.025(1) – Different Counties
State v. Thomas A. Nommensen, 2007 WI App 224
For Nommensen: Anthony L. O’Malley
Issue/Holding: Although charges of repeated sexual assault, § 948.025(1) were the same in law, they were different in fact because they :
¶8 Charged offenses are not multiplicitous if the facts are either separate in time or of a significantly different nature. Id. at 749. “The appropriate question is whether these acts allegedly committed … are so significantly different in fact that they may properly be denominated separate crimes although each would furnish a factual underpinning or a substitute legal element for the violation of the same statute.” Id.
Exposing Minors to Harmful Materials, § 948.11(2) — Sufficiency of Evidence — Failure to Expose Those Alleged Materials to Jury
State v. Tyrone Booker, 2006 WI 79, reversing 2005 WI App 182
For Booker: Jeffrey W. Jensen
Issue: Whether conviction under § 948.11, exposing child to harmful materials, can be sustained where the jury heard the children’s and a detective’s descriptions of the videotape but did not themselves view it.
Holding:
¶25 When we view the evidence in this case most favorably to the State,
§ 948.03(3)(b), Physical Abuse of Child by Recklessly Causing Bodily Harm – Element of Recklessness
State v. Quentrell E. Williams, 2006 WI App 212
For Williams: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: Because “recklessly” causing harm to a child, § 948.03(b), is determined solely from an objective point of view, evidence related to whether the actor “subjectively thought his [disciplinary action] was reasonable parental discipline” is irrelevant, including evidence of how the actor was him or herself disciplined as a child,
Using Computer to Facilitate Child Sex-Crime, § 948.075(3) – Elements – Sufficiency of Evidence
State v. Dennis Charles Schulpius, 2006 WI App 263
For Schulpius: Bridget Boyle
Issue/Holding:
¶10 … The subsection has two elements: (1) the defendant must have done something that shows that he or she had, as phrased by § 948.075(1), the “intent to have sexual contact or sexual intercourse” with someone whom he or she believed, or had reason to believe, was younger than sixteen,