On Point: 9. Crimes

State v. Thomas E. Schmidt, 2012 WI App 137 (recommended for publication); case activity

After performing an HGN test, which exhibited 6 out of 6 indicia of impairment, Schmidt was arrested for OWI. At the ensuing trial, he asserted diabetes as a possible cause for the HGN result. The trial court ordered, as a condition of his testifying to this effect, that he submit to an HGN test outside the presence of the jury.

State v. Gary M. Hemmingway, 2012 WI App 133; case activity

Stalking,  § 940.32(2m)(a), which previously survived overbreadth and vagueness challenges based on rights to travel and equal protection, State v. Ruesch, 214 Wis. 2d 548, 571 N.W.2d 898 (Ct. App. 1997), now withstands a free-speech challenge: The statute isn’t a facially overbroad regulation of protected speech, in that the first amendment doesn’t immunize intentional conduct aimed at causing serious distress or fear of bodily harm.

State v. Tyler H., 2012AP914, District 3, 11/6/12,  court of appeals decision (1-judge, ineligible for publication); case activity

Evidence held sufficient to support delinquency adjudication, where juvenile called mother “a fucking whore” after she struck him during a family “squabble” in their home.

¶9        We conclude Tyler’s conduct was of the type that tends to cause or provoke a disturbance.  First, we reject Tyler’s argument that his language could not provoke a disturbance because a disturbance was already occurring.

State v. William F. Vollbrecht, 2012AP49-CR, District 3, 11/6/12,  court of appeals decision (not recommended for publication); case activity

Evidence held sufficient to sustain conviction for first-degree intentional homicide. The jury was entitled to reject Vollbrecht’s testimony that the shot he fired into his ex-girlfriend’s new boyfriend was accidental.

¶12      Vollbrecht’s argument fails on two fronts.  First, consistent with Poellinger, the jury was permitted to accept Clark’s revised version of events and reject Vollbrecht’s tenuous explanation of what occurred at the time of the shooting.  

Winnebago County v. Anastasia G. Christenson, 2012AP1189, District 2, 10/31/12

court of appeals decision (1-judge, ineligible for publication); case activity

Probable Cause – PBT, § 343.303

¶11      At the time Putzer administered the PBT to Christenson, he was aware that she had driven her car into a ditch, smelled of “intoxicating beverages” around midnight on Saturday night/Sunday morning (a day and time that increases suspicion of alcohol consumption),

County of Fond du Lac v. Nancy C. Bush, 2012AP1486, District 2, 10/31/12

court of appeals decision (1-judge, ineligible for publication); case activity

Under the implied consent law, a motorist must, when properly requested to submit to a chemical test, answer “promptly,” State v. Neitzel, 95 Wis. 2d 191, 205, 289 N.W.2d 828 (1980), else failure to respond will be construed as refusal.

on review of published decision; case activity

Issues (composed by On Point): 

1. Whether the evidence is sufficient to sustain conviction for conspiracy-theft by fraud, in that: no conspirator expressly made a false representation; and in any event, Steffes joined the conspiracy after it had already been set in motion.

2. Whether the evidence is sufficient to sustain conviction for a felony, in that the evidence failed to establish theft of at least $2,500.

State v. Frederick L. Lucht, 2011AP1644-CR, District 4, 9/27/12

court of appeals decision (not recommended for publication); case activity

The record supports the existence of an agreement between Lucht and another to commit the crime of first-degree intentional homicide.

¶28      Lucht refers us to cases standing for propositions that a conspiracy cannot be based on a mere “agreement to negotiate,” see United States v.

State v. William R. Hartman, 2011AP622, District 4, 9/20/12

court of appeals decision (1-judge, ineligible for publication); case activity

OWI – Refusal Hearing – Raising Challenge to Lawfulness of Stop

Refusal hearing supports litigation of lawfulness of stop; State v. Anagnos, 2012 WI 64, ¶42, 341 Wis. 2d 576, 815 N.W.2d 675, followed:

 ¶14      Accordingly, we reject the State’s contention that Hartman improperly raised the issue of reasonable suspicion at the refusal hearing.   

State v. Robert B. Sonnenberg, 2012AP1025, District 2, 9/19/12

court of appeals decision (1-judge, ineligible for publication); case activity

Evidence held sufficient to sustain Sonnenberg’s conviction for OWI-1st. He admitted that he drank some indeterminate amount of alcohol before his car had a flat tire and then drank more on the side of the road; after an officer encountered him, he performed poorly on FSTs and his blood draw resulted in a .184 BAC.