On Point: 9. Crimes

State v. Michael G. Mertes, 2008 WI App 179, PFR filed 12/17/08
For Mertes: Andrea Taylor Cornwall, SPD, Milwaukee Appellate

Issue: Whether finding the sleeping occupant of a vehicle parked at a gas station, with engine off but key in the ignition, along with other factors sufficiently proved the OWI element of “operating.”

Holding:

¶13      Wisconsin Stat. § 346.63(3)(b) defines “operate” as “the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.” Mertes’ argument focuses almost exclusively on the definition of “operation” under Wis.

State v. Thomas P. Tecza, 2008 WI App 79, PFR filed 5/22/08
For Tecza: Timothy P. Swatek

Issue: Whether a roadway within a gated community entry to which is guarded by a security station is “held out to the public for use of their motor vehicles” so as to support drunk driving conviction within § 346.61.

Holding:

¶18      … We read Phillips as inquiring into whether the premises were available for use to the public or “to a defined limited portion of the citizenry.”Richling,

State v. Robert T., 2008 WI App 22For Robert T.: Bradley J. Bloch

Issue: Whether § 947.015 (2003-04) (“Bomb Scares”) is overbroad and therefore cannot support prosecution for a phoned-in but false bomb threat.

Holding:

¶12      Robert T. argues that the statute suffers from overbreadth because it prohibits speech that could be protected. We disagree. Prior Wisconsin opinions have held that only “true threats” are punishable,

State v. Alexander Caleb Grunke / State v. Dustin Blake Radke, 2008 WI 82, reversing 2007 WI App 198
For Grunke: Suzanne Edwards
For Radke: Jefren E. Olsen, SPD, Madison Appellate

Issue: Whether § 940.225 criminalizes sexual contact or sexual intercourse with a victim already dead at the time of the sexual activity when the accused did not cause the death of the victim.

State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08
For Champlain: Martha K. Askins, SPD, Madison Appellate

Issue/Holding:

¶37      Owner nonconsent, like other elements of criminal offenses, may be proved by circumstantial evidence. See Bohachef v. State, 50 Wis.  2d 694, 700-01, 185 N.W.2d 339 (1971). The test on review is whether the evidence presented was sufficient to prove guilt beyond a reasonable doubt,

State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208
For Doss: Robert R. Henak

Issue/Holding:

¶57      Next, we address Doss’s argument that there was insufficient evidence to support her conviction under Wisconsin Statute § 943.20(1)(b). Doss correctly recites the elements the State was required to establish to obtain a conviction: that (1) she had possession of money as a result of her position as a personal representative of her father’s estate;

State v. George W. Lis, Sr., 2008 WI App 82
For Lis: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶7        As relevant here, a person violates Wis. Stat. § 943.201(2) when he or she

intentionally uses, attempts to use, or possesses with intent to use any personal identifying information … of an individual … (a) To obtain credit, money, goods, services, employment, or any other thing of value or benefit.

State v. George W. Lis, Sr., 2008 WI App 82
For Lis: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶1        … The key question in this appeal is whether Lis’s crimes continued after the fraudulent accounts he opened were closed. We conclude they did not. ……

¶8        In this case, Lis’s offense continued into 2003 and 2004 only if he received a “thing of value or benefit” after the accounts were closed in 2000.  

State v. Kenneth W. Lippold, 2008 WI App 130, PFR filed 8/18/08
For Lippold: Thomas J. Nitschke

Issue/Holding: On a charge of receiving stolen property, venue may rest in the county where the underlying theft occurred (and, provable by circumstantial rather than direct evidence):

¶16   Extrapolating from the holding in Swinson, we conclude that because the crime of receiving stolen property requires more than two acts,

State v. Travis S. Dewitt, 2008 WI App 134, PFR filed 8/19/08
For Dewitt: William E. Schmaal, SPD, Madison Appellate

Issue: Whether someone simultaneously held under personal recognizance and cash bonds can be guilty of bail jumping for acts committed in the jail.

Holding:

 ¶12      … Wis. Stat. § 946.49 provides that someone who “having been released from custody under [Wis.