On Point: 9. Crimes

decision below: 2009 WI App 143; for Conner: Steven J. House

Issues:

What degree of specificity is required in charging dates of allege conduct in a criminal information to satisfy the accused’s constitutional due process rights of notice of the charged offenses?

Does Wis. Stat. § 940.32(2m)(b) require that the state prove that a “course of conduct,” constituting two or more acts, occur after the operative prior conviction in order to establish a violation of the aggravated stalking offense?

decision below: 2009 WI App 161; for Patterson: David R. Karpe

Issues:

Is contributing to the delinquency of a child resulting in death a lesser-included offense of first-degree reckless homicide under Wis. Stat. § 939.66(2)?

Can one contribute to the delinquency of a 17-year-old individual when such individuals are no longer subject to juvenile delinquency petitions?

Was a reckless homicide jury instruction defective because it gave as an element to be proved that the deceased used and died from a substance “alleged to have been delivered by the defendant?”

Was there prosecutorial misconduct in refreshing the recollection of witnesses with the testimony and statements of other witnesses?

State v. James W. Smith, 2010 WI 16, affirming 2009 WI App 16; for Smith: Shelley M. Fite, SPD, Madison Appellate

The § 301.45 reporting requirement applicable to any violation of false imprisonment of a minor not the defendant’s child is rationally related to a legitimate government interest in protecting the public, particularly children, ¶¶27-36.

Keep in mind that Smith challenged the statute as applied to him.

decision below: 2009 WI App 156; for Carter: Craig M. Kuhary

Issues:

Do violations of Illinois’ zero tolerance (absolute sobriety) law count as prior offenses for sentence enhancement purposes under Wisconsin’s Operating While Intoxicated (OWI) Law (Wis. Stat. §§ 346.63 and 346.65)?

What methodology are trial courts to employ in determining whether to count out-of-state OWI-related offenses for sentence enhancement purposes under Wis. Stat. § 343.307?

court of appeals decision; for Pittman: Kathleen M. Quinn; BiC; Resp. Br.; Reply Br.

Armed Robbery, § 943.32 – Dangerous Weapon
Although Rittman neither in fact possessed a dangerous weapon, his cautioning that no one would get hurt if the teller gave him money coupled with putting his hand in his pocket sufficed to prove the victim’s reasonable belief that he was threatening to use a dangerous weapon:

¶10      The statutes tell us in what is mostly a tautology that: “‘Reasonably believes’ means that the actor believes that a certain fact situation exists and such belief under the circumstances is reasonable even though erroneous.” Wis.

State v. Christopher J. Lesik, 2010 WI App 12, PFR filed
For Lesik: Anthony Cotton

Issue/Holding: Sexual assault (intercourse) of a child, § 948.02, isn’t unconstitutionally overbroad, against a theory that it criminalizes acts undertaken for “proper medical purpose.” Although the statute is silent with respect to medical conduct, potential overbreadth may be cured through judicial construction and the court therefore “conclude(s) here that ‘sexual intercourse’ as used in the sexual assault of a child statute does not include ‘bona fide medical,

supreme court decision; court of appeals decision; for Fischer: James M. Shellow, Robin Shellow, Urszula Tempska

Note: federal habeas relief was subequently granted, Richard M. Fischer v. Ozaukee Co. Circ. Ct., ED Wis No. 10-C-553, 9/29/10.  Federal appellate and district court cases don’t bind Wisconsin courts, which therefore needn’t follow this habeas decision, e.g., State v. Mechtel, 176 Wis. 

court of appeals decision (not recommended for publication), reversed, 2011 WI 32; for Burris: Byron C. Lichstein; BiC; Resp.; Reply

Answer to Jury Question – Misleading Definition of “Utter Disregard”
Trial court answer to jury question misleading as to whether jury could consider post-shooting conduct as bearing on “utter disregard” element, entitling Burris to new trial.

court of appeals decision (not recommended for publication)

Kidnapping – “Held to Service against Will”
“Held to service against will” element of kidnapping satisfied by “commands for information,” namely “interrogating [victim] as to where she was during the evening and who she was with,” ¶24.

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

OWI – Probable Cause for PBT
Probable cause to administer PBT: rollover accident, odor of intoxicant, Tadych acknowledged drinking; also, PBT result admissible to establish probable cause to arrest.