On Point blog, page 58 of 87
Obstructing, § 946.41 – “Lawful Authority” – Jury Instruction, Generally
State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion
For Ferguson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶31 Because “lawful authority” is an element of obstruction under Wis. Stat. § 946.41(1), if the jury was not properly instructed on the meaning of “lawful authority,” given the facts presented to the jury, the circuit court erred.See Harvey,
Disorderly Conduct, § 947.01 – Conviction as “Crime of Domestic Violence” Disqualifying Gun Possession
Joseph E. Koll, Jr v. Dept of Justice, 2009 WI App 74, PFR filed 4/29/09
For Koll: Alexander L. Ullenberg
Issue: Whether Koll’s conviction of so-called “non-domestic” disorderly conduct was for a misdemeanor crime of domestic violence as defined 18 U.S.C. §921(a)(33)(A), so as to preclude him from obtaining a handgun.
Holding: The federal Gun Control Act bars gun possession to anyone convicted of a “misdemeanor crime of domestic violence,” 18 U.S.C.
Sexual Assault of Child, § 948.02 – Unanimity – Separate Counts, Failure to Tie Particular Act to Particular Count
State v. Christopher F. Becker, 2009 WI App 59, PFR filed 5/8/09
For Becker: Jeremy C. Perri, SPD, Milwaukee Appellate
Issue/Holding: Waived objection to jury instruction “which failed to tie a particular act of sexual contact to a particular count” on a 2-count information of sexual assault of a child, not prejudicial (State v. Marcum, 166 Wis. 2d 908, 480 N.W.2d 545 (Ct.
Possession of Child Pornography, § 948.12(1m) – Sufficiency of Evidence – Full Nudity not Required
State v. James F. Lala, 2009 WI App 137, PFR filed 9/1/09
For Lala: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:
¶11 Sexually explicit conduct as defined in Wis. Stat. § 948.01(7)(e) includes actual or simulated “lewd exhibition of intimate parts.” The term “lewd,” however, is not statutorily defined, nor has a single definition been established by cases interpreting similar child pornography laws. See State v.
Contributing to Delinquency of Child, § 948.40(4)(a) – Element of “Child”: Includes 17-Year-Olds
State v. Patrick R. Patterson, 2009 WI App 161
For Patterson: David R. Karpe
Issue/Holding:
¶29 We will assume, for purposes of Patterson’s argument, that the definition of “juvenile” in Wis. Stat. § 938.02 applies for purposes of defining “delinquency” in Wis. Stat. § 948.40. Nonetheless, Patterson’s statutory analysis ignores the fact that a seventeen-year-old is only excepted from the definition of “juvenile” for a single purpose,
Possession of Controlled Substance – Sufficiency of Evidence, Possession Element – Presence of Drugs in Body
State v. Patrick R. Patterson, 2009 WI App 161
For Patterson: David R. Karpe
Issue/Holding:
¶25 There is no dispute that testing revealed that Tanya S. had Oxycodone in her system at the relevant time. However, as Patterson argues, the presence of drugs in someone’s system, standing alone, is not sufficient evidence to support a conviction for possession of a controlled substance. SeeState v.
Representations Depicting Nudity, § 942.09(2)(am)1 – Elements – Expectation of Privacy: Consensually Nude in Another’s Presence
State v. Mark T. Jahnke, 2009 WI App 4
For Jahnke: Harold L. Harlowe; Michael J. Herbert
Issue/Holding: Secretly videotaping another without consent, though that person knowingly exposes herself nude to the video taper, supports criminal liability:
¶6 Jahnke contends that the facts do not support the third element, the expectation of privacy element. He reasons that his girlfriend had no reasonable expectation of privacy because she knowingly and consensually exposed her nude body to him while he was secretly videotaping her.
Representations Depicting Nudity, § 942.09(2)(am)1 – Elements, Generally
State v. Mark T. Jahnke, 2009 WI App 4
For Jahnke: Harold L. Harlowe; Michael J. Herbert
Issue/Holding:
¶5 Jahnke entered a plea to the recording crime defined in Wis. Stat. § 942.09(2)(am)1. That crime has four elements:
(1) the defendant recorded a person in the nude;(2) the recording is without the nude person’s knowledge and consent;
(3) the depicted person was nude in a circumstance in which he or she had a “reasonable expectation of privacy”;
Unfair Prejudice, § 904.03 – Jury Exposure to Proof of Element of Prior Conviction for “Violent Crime” on Stalking Trial
State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42
For Warbelton: Paul G. Lazotte, SPD, Madison Appellate
Issue/Holding: On a trial for stalking, § 940.32, where one of the elements is prior conviction for “violent crime,” the defendant may blunt prejudicial impact of proof of the prior by stipulating to the existence of the conviction for a violent crime (thus precluding proof of its details);
Due Process – Notice of Charge – Sufficient to Allege Elements, Specific Acts Unnecessary
State v. Janet A. Conner, 2009 WI App 143, PFR filed 9/28/09
For Conner: J. Steven House
Issue/Holding: An information alleging the elements of stalking, § 940.32(2m)(b), but not the acts allegedly establishing the “course of conduct,” provided adequate notice of the charge; court rejecting argument that Connor deprived of notice of “time frame in which the crime allegedly occurred.”
State v.