On Point blog, page 1 of 4
Defense win! State’s evidence of knowing violation of TRO insufficient
State v. Thomas Louis Giegler, 2021AP952-CR, 11/2/21, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)
Unbelievable. A jury convicted Geigler of knowing violation of a TRO. The court of appeals now reverses the conviction because the State’s evidence was insufficient to prove guilt beyond a reasonable doubt. It remands the case with instructions for the circuit court to enter a judgment of acquittal on that charge.
COA upholds conviction for violating injunctions; rejects unfair prejudice, vagueness and sufficiency challenges
State v. Michael K. Lorentz, 2018AP1515, 10/1/19 (one-judge decision; ineligible for publication); case activity (including briefs)
The state charged Lorentz with violating four injunctions. One count was brought under Wis. Stat. § 813.12(8)(a) (for violating a domestic abuse injunction regarding his ex-wife) and three under Wis. Stat. § 813.122(11) (for violating three child abuse injunctions–one for each of their three children). Each injunction required Lorentz to “avoid” the “residence” the mother and children shared.
Court of Appeals rejects constitutional challenges to ban on posting or publishing private pictures, felon in possession statute
State v. Norris W. Culver, 2018 WI App 55; case activity (including briefs)
Wisconsin Stat. § 942.09(3m)(a)2. prohibits a person from posting or publishing “private representations” without the consent of the person depicted in the representation. The court of appeals rejects Culver’s claim that the statute is void because it’s overbroad and vague. The court also rejects his claim that the felon-in-possession statute is unconstitutional as applied to him because of the non-violent nature of his prior felony conviction.
Evidence was sufficient to convict defendant for attempted “upskirting”
State v. Jesse L. Schmucker, 2014AP165-CR, District 2, 4/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)
The evidence was sufficient to sustain the jury’s finding of guilt of an attempt to violate § 942.09(2)(am)1., which criminalizes capturing a representation that depicts nudity without the knowledge or consent of the person who is depicted nude in circumstances where that person had a reasonable expectation of privacy, even though the victim was not nude and the offense occurred while the victim was in the check-out line at a grocery store.
Prostitute has “reasonable expectation of privacy” too
State v. Charles W. Adams, 2015 WI App 34; click here for docket and briefs.
§ 942.09(2)(am)1 prohibits recording someone in the nude, without the person’s consent, in circumstances where the person had a reasonable expectation of privacy, and where the recorder had reason to know that the nude person did not consent to the recording. This case holds that the statute protects a prostitute who is videotaped nude during commercial sexual activity.
SCOTUS: “Straw” purchase prohibition applies even when true purchaser may lawfully own gun
Abramski v. United States, USSC No. 12-1493, 2014 WL 2676779 (June 16, 2014), affirming United States v. Abramski, 706 F.3d 307 (4th Cir. 2013); Scotusblog page (includes links to briefs and commentary)
Resolving a split between federal circuit courts of appeal, the Supreme Court holds that the prohibition in 18 U. S. C. § 922(a)(6) against making false statements about “any fact material to the lawfulness of the sale” of a firearm applies to a “straw” purchaser—a person who buys a gun on someone else’s behalf while falsely claiming that it is for himself—even if the true buyer could have purchased the gun legally.
Bruce Abramski v. United States, USSC No. 12-1493, cert. granted 10/15/13
1. Is a gun buyer’s intent to sell a firearm to another lawful buyer in the future a fact “material to the lawfulness of the sale” of the firearm under 18 U.S.C. § 922(a)(6)?
2. Is a gun buyer’s intent to sell a firearm to another lawful buyer in the future a piece of information “required … to be kept” by a federally licensed firearm dealer under § 924(a)(I)(A).
Securities fraud — factual basis for plea; definition of “security”
State v. James C. Hudson, 2013 WI App 120; case activity
Hudson’s untrue statements to persons to get them to invest in his country music career provided a factual basis for his plea to two violations of ch. 551’s prohibition against making untrue statements of material fact in connection with the sale of a “security” because his conduct involved “securities.” A security includes an “investment contract,” which under § 551.102(28)(d)1.
Complaint – Probable Cause, Generally; Complaint, Violating Foreign Protection Order, § 813.128(2) – Sufficiency
State v. Timothy Jon Eloe, 2011AP1970-CR, District 2, 2/29/12
court of appeals decision (1-judge, not for publication); for Eloe: John C. Orth; case activity
¶5 To be sufficient, a criminal complaint need only be minimally adequate in setting forth essential facts establishing probable cause. State v. Adams, 152 Wis. 2d 68, 73, 447 N.W.2d 90 (Ct. App. 1989). Further, the adequacy of the complaint is to be evaluated “in a common sense rather than a hypertechnical manner.” Id.
Violation of TRO, § 813.125
State v. James M. Johnson, 2011AP2374-CR, District 2, 2/8/12
court of appeals decision (1-judge, not for publication); pro se; case activity
Evidence – Johnson left voicemail message on complainant’s work phone – held sufficient to sustain conviction for violating temporary restraining order.
¶8 Regarding the nature of the voice mail message and its violation of the TRO, the TRO itself states that Johnson is to “avoid contact that harasses or intimidates the petitioner,” contact defined as including contact by phone.