On Point blog, page 4 of 5
Representations Depicting Nudity, § 942.09 – Sufficiency of Evidence
State v. Mark E. Nelson, 2006 WI App 124, PFR filed 6/22/06
For Nelson: Robert R. Henak; Amelia L. Bizzaro
Issue/Holding: The evidence was sufficient to sustain conviction under § 942.09 for videotaping into a bathroom notwithstanding that the window was open, under the following circumstances:
¶53 Applying this standard, we conclude the evidence was sufficient for the jury to find Nelson guilty of violating Wis.
Compulsory School Attendance, § 118.15(5)(b)2
State v. Gwendolyn McGee, 2005 WI App 97
For McGee: Amelia L. Bizarro
Issue/Holding: The disobedient-child defense to a compulsory-attendance charge is an affirmative defense issue to be presented to the fact-finder at trial for resolution (as opposed to disposition by pretrial motion).
Double Jeopardy – Mulitple Punishments – Drug Tax Stamp Assessment, §§ 139.87-139.96, And Subsequent Prosecution For Possessing Same Drug
Stephen Dye v. Frank, 355 F.3d 1102 (7th Cir 2004)
For Dye: Christopher M. Bailey
Issue/Holding:
To determine whether a civil penalty is so punitive that it is should be characterized as criminal punishment, we must consider the factors listed by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), and reaffirmed in Hudson v.
First Amendment – Overbreadth – Travel Restrictions – “Banishment” from Victim’s County
Predick v. O’Connor, 2003 WI App 46
Issue/Holding: Banishment from victims’ county, under harassment injunction, § 813.125, upheld:
¶18 Thus, banishment is not a per se constitutional violation. As the previous discussion demonstrates, there is no exact formula for determining whether a geographic restriction is narrowly tailored. Each case must be analyzed on its own facts, circumstances and total atmosphere to determine whether the geographic restriction is narrowly drawn.
Disclosure of Confidential Child Abuse Reporting, § 48.981(7) — Strict Liability
State v. David C. Polashek, 2002 WI 74, affirming in part and reversing in part, 2001 WI App 130
For Polashek: Nila J. Robinson
Issue: Whether § 48.981(7) is a strict liability offense.
Holding: Where the statute makes no reference to mental state — and none is made here — it is often deemed strict liability. Factors such as seriousness and nature of the offense and legislative history may lead the court to impose a scienter requirement.
Disclosure of Confidential Child Abuse Reporting, § 48.981(7) — “Disclosure” Element
State v. David C. Polashek, 2002 WI 74, affirming in part and reversing in part, 2001 WI App 130
For Polashek: Nila J. Robinson
Issue: Whether the element of “disclosure” in § 48.981(7) requires that the recipient not previously have been aware of the confidential information.
Holding: Given the plain meaning of “disclosure,” as defined by various dictionaries, as well as construciton of the term under the Federal Privacy Act:
¶23.
Drug Tax Stamp, §§ 139.87-139.96 — Constitutionality
State v. Glover B. Jones, 2002 WI App 196, PFR filed 8/22/02
For Jones: Mark D. Richards
Issue/Holding: The drug tax stamp law, §§ 139.87-139.96, amended to address State v. Hall, 207 Wis. 2d 54, 557 N.W.2d 778 (1997), doesn’t violate the privilege against compelled self-incrimination, ¶33-36.
Double Jeopardy – Multiplicity: Harassment Injunction (§ 813.125(4)) Not Lesser Offense of Harassment (§ 947.013(1r))
State v. Michael A. Sveum, 2002 WI App 105, PFR filed 5/10/02
For Sveum: Ian A.J. Pit
Issue/Holding: Violation of harassment injunction isn’t lesser offense of harassment, each requiring proof of distinct element. ¶¶23-28. (Court stressing, in particular, that for harassment defendant need only be “subject” to injunction but not actually violate it. ¶25.)
Domestic Abuse, § 813.12(1) — “Household Member”
Annette Petrowsky v. Brad Krause, 223 Wis. 2d 32, 588 N.W.2d 318 (Ct. App. 1998)
For Krause: Russell D. Bohach
For Petrowsky: Thomas McAdams, Pro Bono Project
Issue/Holding:
The issue on appeal is who constitutes a “household member” under the domestic abuse statute. This involves the construction of a statute. Interpretation of a statute is a question of law that appellate courts review without deference to the trial court.
Gambling, § 945.03(5) — Constitutionality — Vagueness Challenge
State v. Lester E. Hahn, 221 Wis. 2d 670, 586 N.W.2d 5 (Ct. App. 1998)
For Hahn: Bruce Elbert
Issue/Holding: The meaning of “gambling machine” is sufficiently well-understood as to survive a vagueness challenge. (The court reserves whether “contrivance” might be vague when applied to facts not raised by this case.)