On Point: 9. Crimes

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court of appeals decision (not recommended for publication), reversed, 2011 WI 32; for Burris: Byron C. Lichstein; BiC; Resp.; Reply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court of appeals decision (not recommended for publication)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

court of appeals decision; for Puchacz: William M. Hayes
Resp Br

OWI Enhancer, § 346.65(2) – Out-of-State Conviction
Michigan convictions for driving while visibly impaired may be counted as Wisconsin OWI priors, given “broad interpretation and application of the final phrase in Wis. Stat. § 343.307(1)(d) and the public policy supporting our drunk driving laws,” ¶¶12-13.

Traffic Stop – Deviating from Center Line, § 346.05
Crossing center line,

court of appeals decision; for Fortun: Todd E. Schroeder
AG’s BiC; Resp Br; Reply

Forgery, § 943.38(1) – Altered Prescription
Altering the number of pills on a prescription and presenting the altered document to a pharmacist comes within the forgery statute, § 943.38(1).

court of appeals decision; for Fortun: Todd E. Schroeder

Forgery, § 943.38(1) – Altered Prescription (Increasing Number of Pills)
Altering the number of pills on a prescription and presenting the altered document to a pharmacist comes within the forgery statute, § 943.38(1).