On Point blog, page 44 of 87
OWI – Sufficiency of Evidence; Closing Argument – Explanation of Element (“Operate,” OWI)
City of Beloit v. Steven A. Herbst, Sr., 2010AP2197, District 4, 1/12/12
court of appeals decision (1-judge, not for publication); for Herbst: Tracey A. Wood; case activity
Evidence held sufficient to support OWI conviction, where Herbst was found in parked car, slumped over the steering wheel with the engine running, along with evidence that the designated driver gave Herbst the keys to the vehicle so he could go to sleep.
“Utter Disregard” Element (Reckless Homicide, § 940.02(1)): Sufficient Proof (High-Speed Auto Collision); Discovery: Rebuttal Computer Simulation; Evidentiary Foundation / Probative Value: Computer Simulation
State v. Anrietta M. Geske, 2012 WI App 15 (recommended for publication); for Geske: Jefren E. Olsen, SPD, Madison Appellate; case activity
Sufficiency of Proof – “Utter Disregard” Element (Reckless Homicide, § 940.02(1))
Evidence held sufficient to support reckless homicide element of utter disregard of human life, where deaths resulted from high-speed automobile collision after running red light, notwithstanding undisputed evidence that Geske swerved her car in an attempt to avoid the collision.
State v. Juan G. Gracia, 2011AP813-CR, District 2, 12/28/11, rev. granted 5/14/12
court of appeals decision (1-judge, not for publication); for Gracia: Tracey A. Wood; case activity; petition for review granted 5/14/12
Warrantless Entry – Community Caretaker
Entry into Gracia’s bedroom by police, who had linked him to a serious traffic accident, was justified by the community caretaker doctrine; State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242,
OWI – Implied Consent Law
State v. Luke T. Nirmaier, 2011AP1355-CR, District 3, 12/28/11
court of appeals decision (1-judge, not for publication); for Nirmaier: Michael M. Rajek; case activity
The odor of alcohol on Nirmaier following a traffic accident resulting in substantial bodily injury triggered the implied consent law, notwithstanding absence of probable cause to arrest at that point:
¶9 Wisconsin Stat. § 343.305(3) outlines different scenarios in which an officer may invoke the implied consent law and request a chemical test of an individual’s breath,
Identity Theft – Sufficiency Of Evidence; Restitution – Substantial Factor
State v. Cedric O Clacks, 2011AP338-CR, District 4, 12/22/11
court of appeals decision (not recommended for publication); for Clacks: Jefren E. Olsen, SPD, Madison Appellate; case activity
Evidence held sufficient to prove contested, fourth element of identity theft (intentional representation user of personal identification document of another authorized to use it), § 943.201(2)(a) as party to the crime.
¶15 Specifically, Clacks contends that handing the credit card to a sales clerk to make a purchase and signing the electronic credit card slip cannot,
State v. Scott E. Ziegler, 2010AP2514-CR, rev. granted 12/14/11
on certification by-pass of court of appeals; for Ziegler: Christopher William Rose; case activity; prior post
Interfering with Custody, § 948.31(2)
Issue (from Certification):
In State v. Bowden, 2007 WI App 234, 306 Wis. 2d 393, 742 N.W.2d 332, we analyzed Wis. Stat. § 948.31(2), which deals with criminal charges for interference with custody of children. There,
CCW, § 941.23 – Facially Constitutional
State v. Tiffany Michelle Flowers, 2011AP1757-CR, District 1, 12/13/11
court of appeals decision (1-judge, not for publication); for Flowers: Daniel A. Necci; case activity
Conviction for carrying a concealed weapon (gun in a purse, in a car), § 941.23, upheld against second amendment challenge to facial validity. Court rejects strict scrutiny test. (The statute was amended by 2011 Wis. Act 35, §§ 50-55, to allow among other things conceal-carry for licensees;
OWI Enhancer – Collateral Attack
State v. Jason L. Decorah, 2011AP662-CR, District 4, 12/8/11
court of appeals decision (1-judge, not for publication); for Decorah: Corey C. Chirafisi; case activity
Collateral attack on a prior OWI used as a current enhancer, on the ground Decorah didn’t understand the range of penalties therefore didn’t validly waive counsel. Decorah prevailed below, and the court affirms on this State’s appeal:
¶3 Decorah’s collateral attack is based on his contention that,
State v. Roshawn Smith, 2010AP1192-CR, rev. granted 12/1/11
on review of unpublished decision; for Smith: William E. Schmaal, SPD, Madison Appellate; case activity; prior post
Sufficiency of Evidence (Possession with Intent to Deliver) – Circumstantial Evidence Standard of Review /
Stipulation (Offense Element) – Right to Jury Trial
Issues (from Smith’s PFR):
1. The Trial Evidence Was Insufficient to Support Smith’s Conviction of Possessing a Controlled Substance (THC) With Intent to Deliver,
Evidence – Admissibility of Blood Test Results
State v. Michael Perzel, III, 2011AP1190-CR, District 4, 12/1/11
court of appeals decision (1-judge, not for publication); for Perzel: Waring R. Fincke; case activity
Blood test results are admissible without expert testimony to reflect a person’s bac at the time in question (in this OWI-related prosecution, at the time Perzel was driving), so long as the blood was drawn by a person enumerated in § 343.305(5)(d). One such person is a “registered nurse.”