On Point: 9. Crimes

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.

State v. Bernard Ikechukwel Onyeukwu, 2014AP518-CR, 2/26/15, District 4 (not recommended for publication); click here for briefs.

The State charged the defendant with 10 counts of sexual assault, 5 of which required proof that the victim suffered from a mental deficiency and that the defendant knew it. The jury acquitted on 6 counts. Just 2 of the convictions required proof of mental deficiency. They spawned interesting grounds for appeal, but this decision just wasn’t up to the task.

City of Sheboygan v. Nathan J. Becker, 2014AP1991, District 2, 2/11/15 (1-judge decision; ineligible for publication); case activity (including briefs)

After police stopped Becker because of erratic driving at 11:30 p.m. on July 4 they observed additional evidence of impairment—glassy eyes, slurred speech, odor of alcohol. Becker admitted he’d been drinking and turned in a mixed performance on the FSTs. Under the totality of the circumstances, the officer had probable cause to ask Becker for a preliminary breath test under § 343.303 and County of Jefferson v.

State v. William M. Gruber, 2014AP1069, 2/5/15, District 4 (1-judge opinion; ineligible for publication); click here for docket and briefs

The court of appeals bills this as “a State Capitol protester case with a twist.” The “twist” is that Gruber was cited for disorderly conduct under one administrative rule whereas other protesters were cited for lacking a permit under another rule. So when the circuit court dismissed the charges in this case based on the reasoning used in the “no permit” cases, it erred.

City of Stevens Point v. Jared T. Lowery, 2014AP742, 2/5/15; District 4 (1-judge opinion; ineligible for publication); click here for docket and briefs

It seems the City didn’t know of Lowery’s two prior OWI convictions when it charged him with, and obtained a conviction for, OWI first under a city ordinance. Only the State (not a city) may prosecute someone for OWI, third offense. So the circuit court lacked subject matter jurisdiction to try and convict Lowery for OWI first.

State v. Benjamin J. Strohman, 2014AP1265-CR, District 3, 2/3/15 (1-judge decision; ineligible for prosecution); case activity (including briefs)

Rejecting the state’s arguments that the statute of limitation had been tolled, the court of appeals holds the state could not re-charge Strohman for an OWI offense that was improperly treated as a first offense because the time limit for charging the offense had expired.

State v. Kyle R. Christoffersen, 2014AP1282, District 2, 1/28/15 (1-judge decision; ineligible for publication); case activity

The judge at Christoffersen’s refusal hearing didn’t violate Christoffersen’s due process rights when it limited cross-examination about the arresting officer’s training on, and administration of, field sobriety tests and refused to allow Christoffersen to make an offer of proof by questioning the officer. (¶¶5-7, 14).

Question presented:

Whether, to convict a defendant of distribution of a controlled substance analogue, the government must prove the defendant knew that the substance constituted a controlled substance analog, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.

State v. Jonathan Thomas, 2014AP543-CR, District 1, 1/5/15 (not recommended for publication); case activity

At his trial on a charge of second degree reckless homicide for causing the death of Michael Brown, Thomas claimed Brown accidentally shot himself while handling a gun. The jury found Thomas guilty of the lesser included offense of homicide by negligent handling of a dangerous weapon, § 940.08(1). The court of appeals rejects Thomas’s challenge to the sufficiency of the evidence for that verdict.

State v. Bobbie Tanta Bowen, 2015 WI App 12; case activity

Bowen was found guilty of bail jumping for violating the provision of his bail that he have no contact with F.B., the victim of an earlier battery charge, or F.B.’s residence. The court of appeals holds that the trial evidence—which showed Bowen went into F.B.’s residence but had no direct contact with F.B. while he was inside—was sufficient to support the verdict because the bond condition “that [Bowen] not have contact with F.B.” did not require proof that Bowen directly communicated with F.B.