On Point blog, page 46 of 89
“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court of appeals decision (1-judge, not for publication); for Gracia: Tracey A. Wood; case activity; petition for review granted 5/14/12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court of appeals decision (1-judge, not for publication); for Nirmaier: Michael M. Rajek; case activity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court of appeals decision (not recommended for publication); for Clacks: Jefren E. Olsen, SPD, Madison Appellate; case activity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.”
Statute of Limitations – Reopened OWI-1st; Excited Utterance
City of Waukesha v. James F. Murphy, 2010AP2499, District 1/2, 11/29/11
court of appeals decision (1-judge, not for publication); for Murphy: Leonard G. Adent; case activity
The City obtained dismissal of a then-pending OWI-1st, after discovering that Murphy had an OWI-related conviction. (Per Walworth Cnty. v. Rohner, 108 Wis. 2d 713, 722, 324 N.W.2d 682 (1982), the State has exclusive authority over second and subsequent drunk driving offenses.) However,