On Point blog, page 57 of 87
First Amendment (Freedom of Speech) – Applied to Identity Theft, § 943.201(2)(c): Regulation of Speech
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,
Conspiracy, § 939.31 – Impossibility of Fulfilling Objective
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,
Kidnapping, § 940.31(1)(b) – Elements – “Hold to Service Against Will”
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,
§ 940.19(5), Aggravated Battery – Intent Element not Refuted, Lesser Included Option of 2nd-Degree Reckless Injury not Supported on Facts
State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se
Issue/Holding:
¶52 We conclude as a matter of law that shooting a person in the thigh at a range of sixteen feet with a shotgun is practically certain to cause at least a protracted loss or impairment of the function of the person’s leg, and is therefore injury constituting “great bodily harm” within the meaning of the statutes.
Battery to Peace Officer, § 940.20(2) – Elements: Officer Need Not Act “Lawfully”
State v. Dione Wendell Haywood, 2009 WI App 178
For Haywood: Robert E. Haney
Issue/Holding: In a battery-to-officer prosecution, it is no defense that the officer refused to leave the premises when the resident withdrew consent to enter, because acting “lawfully” is not an element:
¶11 The flaw in Haywood’s contention, however, is that a law-enforcement officer need not be acting “lawfully” for what he or she does to be done in the officer’s “official capacity.” Rather,
§ 940.225(2)(a), Second-Degree Sexual Assault – Sufficiency of Evidence – Force
State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers
Issue: Whether use of force element of second-degree sexual assault was established where the defendant asked the complainant to rate his penis then hugged her so that she could feel his penis through their clothing.
Holding:
¶24 Long’s arguments are not persuasive.
§ 940.23(1), Reckless Injury – “Utter Disregard for Human Life” – Insufficient Proof, Interplay of Self-Defense
State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se
Issue/Holding: Miller incontrovertibly had some basis to fire a shotgun at his drunken, violent antagonist and even if not adequate to establish full self-defense was enough to defeat the reckless injury element of utter disregard for human life, thereby requiring entry of judgment of acquittal on remand, ¶¶31-44.
Lengthy clips from the court’s detailed analysis omitted,
§ 940.32(2), Stalking, Generally: “Three Distinct Classifications”
State v. Janet A. Conner, 2009 WI APP 143, PFR filed 9/28/09
For Conner: J. Steven House
Issue/Holding:
¶11 Wisconsin Stat. § 940.32 creates three distinct classifications of stalking offenses. See State v. Warbelton, 2009 WI 6, ¶24, 315 Wis. 2d 253, 759 N.W.2d 557. Subsections (2) and (2e) each set forth separate requirements for Class I felony stalking.
§ 940.32(2m)(b), Stalking – “Course of Conduct” Acts: Timing, Admissibility
State v. Janet A. Conner, 2009 WI APP 143, PFR filed 9/28/09
For Conner: J. Steven House
Issue/Holding:
¶19 We conclude that the seven year time restriction specified in Wis. Stat. § 940.32(2m)(b) requires that only the final act charged as part of a course of conduct occur within seven years of the previous conviction, and does not restrict by time the other acts used to establish the underlying course of conduct element of sub.
§§ 940.32(2) & (2m)(a), Stalking, Having Prior Conviction for Violence – Prior Conviction Is Element, not Penalty Enhancer
State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42
For Warbelton: Paul G. Lazotte, SPD, Madison Appellate
Issue/Holding: Prior conviction for a violent crime is element, not penalty enhancer, of stalking, §§ 940.32(2) & (2m)(a):
¶30 First, sub. (2m)(a) designates a list of specific crimes that elevate a simple stalking offense to a Class H felony. These enumerated prior convictions are for a specific set of violent crimes,