On Point: 9. Crimes

 court of appeals decision; for Lesik: Anthony Cotton

Overbreadth challenge to 948.02, sexual assault of a child
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,

Waiver of Escalona argument; claim of self-defense where crime includes “utter disregard of life” element

Click here for court of appeals decision, PFR filed 8/3/09

(opinion originally issued 4/23, withdrawn 5/12, reissued 5/21, withdrawn 6/12, reissued 7/2. Groundhog Day? Not quite: the withdrawn opinions found that trial counsel was ineffective for not seeking a lesser included instruction to reckless injury, but the new opinion rejects that conclusion)

Pro se

Issue/Holding: State failure to argue,

Hit and run causing injury is felony

Click here for court of appeals decision 

Defense counsel: John M. Yackel

 Issue/Holding: Although it carries a maximum penalty of 9 months’ imprisonment, hit-and-run causing injury less than serious bodily harm, §§ 346.67(1) and 346.74(5)(b), is a felony. 

Analysis:  Obviously, this result is going to make life more difficult for hit-run representation, for the obvious reason: it’s one thing to advise your client to plead out to a misdemeanor,

State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn

Issue/Holding: The identity theft charge against Baron, sending emails from Fischer’s account without authorization and with intent to harm his reputation as a government official, survives strict scrutiny analysis under the First Amendment (freedom of speech clause):

¶45      To survive strict scrutiny, the State has the burden to show that the “‘regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.’” 

State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn

Issue/Holding: The charge of identity theft, based on Baron’s alleged conduct in sending emails from Fischer’s account without authorization and with intent to harm his reputation, is “content based” within the meaning of First Amendment analysis:

¶38      In the case at hand, we conclude that Wis.

State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinionF
For Long: Joseph L. Sommers

Issue: Whether “restrained or confined” element of false imprisonment was established where the defendant hugged the complainant tightly while committing an act of sexual contact.

Holding:

¶28      This court has previously explained that confinement is the “restraint by one person of the physical liberty of another.”

State v. Ross M. Brandt, 2009 WI App 115
For Brandt: John M. Yackel

Issue/Holding: Although it carries a maximum penalty of 9 months’ imprisonment, hit-and-run causing injury less than serious bodily harm, §§ 346.67(1) and 346.74(5)(b), is a felony.

Obviously, this result is going to make life more difficult for hit-run representation, for the obvious reason: it’s one thing to advise your client to plead out to a misdemeanor,

State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn

Issue/Holding: First amendment analysis applies to an identity theft charge alleging that Baron sent emails from Fischer’s account without authorization and with intent to harm his reputation:

¶16      In order to determine if a First Amendment analysis is required, we must first consider whether conduct alone or speech,

State v. Garrett L. Huff, 2009 WI App 92, PFR filed 6/3/09
For Huff: Jeffrey W. Jensen

Issue/Holding: Impossibility of fulfilling goal of conspiracy (here: election bribery, where other “conspirators” were undercover officers ineligible to vote) doesn’t preclude conviction, given Wisconsin’s recognition of “unilateral” conspiracies, State v. Sample, 215 Wis. 2d 487, 573 N.W.2d 187 (1998):

¶11   … Thus,

State v. Jeremy Denton, 2009 WI App 78 / State v. Aubrey W. Dahl, 2009 WI App 78
For Denton: Paul G. Bonneson
For Dahl: Patrick M. Donnelly

Issue/Holding: Though merely incidental to robbery, kidnapping charge is supported on theory that ordering the victim to relinquish property holds that person to service against his or her will:

¶26      … The defendants contend that,