On Point: 9. Crimes

State v. Shawn M. Klingelhoets, 2012 WI App 55 (recommended for publication); for Klingelhoets: Robert R. Henak; case activity

Intentionally Mistreating Animal, Resulting in Death, §§ 951.02 and 951.18(1) – Intent Element 

Intentionally mistreating an animal, resulting in the animal’s death, contrary to Wis. Stat. §§ 951.02 and 951.18(1), doesn’t require intent to kill:

¶17      In sum, the plain language of Wis. Stat. § 951.18(1) does not require a defendant to have intentionally mutilated,

State v. Clarence E. Brown, 2011AP2049-CR, District 1, 4/17/12

court of appeals decision (1-judge, not for publication); for Brown: Daniel R. Drigot; case activity

Carrying Concealed Weapon, § 941.23 (2009-10) – Facially Constitutional

The court upholds the constitutionality of the prior version of § 941.23, CCW, as not violating the right to bear arms (since-modified, to allow conceal-carry under specified circumstances, 2011 WI Act 35). 

State v. Thomas M. Pocian, 2012 WI App 58 (recommended for publication); for Pocian: Martin E. Kohler, Craig S. Powell, Geoffrey R. Misfeldt; case activity

¶2        In 1986, Thomas M. Pocian was convicted of writing forged checks, a felony.  Twenty-four years later, Pocian was prosecuted under Wis. Stat. § 941.29, which prohibits a felon from possessing a firearm.  Relying on Heller and McDonald,

State v. David D. Austin, 2011AP1042, District 1, 4/10/12

court of appeals decision (1-judge, not for publication); pro se; case activity

Because Austin was no longer in custody under the conviction he sought to collaterally attack pursuant to § 974.06, the court lacked jurisdiction to entertain his motion. It is not enough that he was in custody under some sentence, rather than the particular conviction he sought to attack:

¶12      Austin submits that the wording of Wis.

State v. Traci L. Scott, 2011AP2115-CR, District 2, 3/21/12

court of appeals decision (1-judge, not for publication); for Scott: Rex Anderegg; case activity

The court rejects Scott’s challenge to a prior OWI conviction, concluding that she aware of the range of punishments, dangers of self-representation, etc. General test recited:

¶2        A defendant facing an enhanced sentence based on a prior conviction may only collaterally attack that prior conviction based on the denial of the constitutional right to counsel.  

State v. Heidi L. Fleischmann, 2011AP2558-CR, District 3, 3/20/12

court of appeals decision (1-judge, not for publication); for Fleischmann: Sarvan Singh; case activity

The State satisfied its burden of proving that Fleischmann operation of a motor vehicle, in a parking lot adjacent to an empty business building, was on “premises held out to the public for use of their motor vehicles,” § 346.61.

¶8        Whether a premises is held out to the public depends on the owner’s intent.  

State v. Todd M. Anderson, 2011AP1499-CR, District 2, 3/14/12

court of appeals decision (1-judge, not for publication); for Anderson: pro se; case activity

Frozen Lake Winnebago is a public “premises” within § 346.61, therefore supports prosecution for operating a vehicle on the lake while intoxicated. City of Kenosha v. Phillips, 142 Wis. 2d 549, 419 N.W.2d 236 (1988), discussed and applied.

¶9        Unlike the Phillips court,

State v. Matthew R. Steffes, 2012 WI App 47 (recommended for publication), petition for review granted, 10/16/12; for Steffes: Jeffrey W. Jensen; case activity

Conspiracy to Commit Theft by Fraud, §§ 939.31, 943.20(1)(d) – Sufficiency of Evidence 

Evidence held sufficient to sustain Steffes’ conviction for conspiracy to commit theft by fraud, based on his participation in a prisoners’ “burn-out” telephone scam.

State v. William Dinkins, Sr., 2012 WI 24, affirming 2010 WI App 163; for Dinkins: Steven D. Phillips, SPD, Madison Appellate; case activity; note: the court affirms the mandate (reversal of conviction and dismissal of charge), but “upon a different rationale,” ¶63; the net effect is, “affirmed, as modified“

Although homelessness is not in and of itself a defense to prosecution for failing to register as a sex offender, 

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.