On Point: 9. Crimes

State v. Daniel Wilson, 2017AP813-CR, 3/27/18, District 1 (not recommended for publication); case activity (including briefs)

This appeal raises, among others things, a novel issue specific to child sexual assault cases. Is the State actually required to prove the 2nd element of repeated child sexual assault–that at least 3 assaults took place “within a specified period of time” as §948.025(1)(b) plainly states? Or is it relieved of that burden by virtue of various opinions holding that the State does not have to prove the “specifics” of a child sexual assault?

City of Chetek v. Daniel John McKee, 2017AP207, District 3, 3/15/18 (one-judge decision; ineligible for publication); case activity (including briefs)

McKee claimed he was justified in refusing to submit to a breath test under § 343.305(9)(a)5.c. because his chronic gastroesophageal reflux disorder (GERD) and resulting Barrett’s esophagus rendered him physically unable to take the test. (¶¶3-4). McKee sought to admit his medical records as evidence at the refusal hearing, but the circuit court sustained the prosecutor’s objection that they weren’t properly authenticated. (¶5). Further, based on the testimony of the arresting officer, the circuit court found McKee refused out of a concern for his job, not because of his medical condition. (¶¶6-7). The court of appeals rejects McKee’s challenges to the circuit court’s rulings.

State v. Korry L. Ardell, 2017AP381-CR, District 1, 3/6/18 (not recommended for publication); case activity (including briefs)

Ardell was convicted of stalking in violation of § 940.32(2) for sending emails about N., a woman he had dated, to a former employer of N. (¶¶3-20). The court of appeals rejects his arguments that, under the plain language of the statute: 1) conduct or statements regarding N. but directed at a third party were irrelevant absent proof Ardell either intended such information to be passed on to the alleged victim or intended the third party to harass the alleged victim based on the information; and 2) the jury instructions failed to apprise the jury that the state had to prove that intent before they could convict him.

State v. James C. Faustmann, 2017AP1932-CR, District 2, 3/7/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Under the test for lesser included offenses under § 939.66(1), disorderly conduct in violation of § 947.01(1) isn’t a lesser-included offense of unlawful use of a computerized communication system in violation of § 947.0125(2)(a).

State v. Orlando Lloyd Cotton, 2016AP2211-CR, District 1, 2/13/18 (not recommended for publication); case activity (including briefs)

Cotton was convicted of being party to the crime of possession of cocaine and marijuana with intent to deliver and keeping a drug house. He unsuccessfully argues the evidence wasn’t sufficient to convict him and that his trial lawyer was ineffective.

State v. Dustin R. Willette, 2017AP888, District 3, 2/6/18 (1-judge opinion, ineligible for publication); case activity (including briefs)

A police dispatcher informed officer Hughes that a caller saw a man drive into gas station, exit his car, and walk away. Then another officer reported seeing a similarly-dressed man walking down the a road about a mile away. That man was Willette. Officer Hughes picked him up, drove him back to the car at the gas station, performed FSTs, arrested him for OWI, and asked him to submit to a blood test. Willette did not say  “yes” or “no.” He said “I want to speak to a lawyer.” Here’s why the circuit court found probable cause to arrest and improper refusal to submit to a blood test.

State v. August D. Genz, 2016AP2475-CR, District 3, 1/30/18 (not recommended for publication); case activity (including briefs)

A jury convicted Genz of (1) possession with intent to deliver amphetamine and (2) conspiracy to deliver THC. The court imposed concurrent, stayed sentences with 1 year of probation. Genz appealed the 2nd conviction, but he completed his term of probation while the appeal was pending. The State moved to dismiss on grounds of mootness. The court of appeals said, essentially, no way. The appeal was not moot because a felony conviction has collateral consequences. Furthermore, the State did not offer sufficient evidence to prove conspiracy to deliver THC.  Conviction reversed!

State v. Hector Miguel Ortiz Martinez, 2017AP668, District 1, 12/27/17 (one-judge decision; ineligible for publication); case activity (including briefs)

After his arrest for OWI, Martinez refused to submit to a breath test. The arresting officer gave him the standard notice of intent to revoke operating privileges containing the standard written warning that the driver has 10 days to request a refusal hearing. Martinez requested a refusal hearing, but not within the 10-day limit under § 343.305(10)(a), so the circuit court declined to hold a hearing. (¶¶3-5). Martinez argues that a language barrier and incomplete information from the arresting officer mean the standard notice he was given was not legally sufficient to start the 10-day clock running. Yes it was, says the court of appeals.

State v. Darrin K. Taylor, 2016AP1956 & 1957, 12/20/2017, District 2 (not recommended for publication); case activity (including briefs)

Taylor was convicted at trial of seventeen charges related to sexual assault of a child, S.F. On appeal he attacks only his conviction for causing mental harm to a child and the associated bail-jumping count. He argues the evidence was insufficient to show that S.F. suffered “mental harm” as it is defined in the statute, or that his post-assault contact with her was a substantial cause of said harm.

State v. Bobby Lopez, 2017AP923-CR, District 2, 2/13/17 (one-judge decision; ineligible for publication); case activity (including briefs)

In order to be “within” the 10-year period under § 346.65(2)(am)2., the subsequent offense must occur before the tenth anniversary of the prior offense. Thus, Lopez’s July 9, 2016, OWI offense is not “within [the] 10-year period” that began on July 9, 2006, the date of his prior offense, and he can’t be charged with second-offense OWI.