On Point: 9. Crimes

State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31

For Schultz: Stephen L. Morgan, Jennifer M. Krueger

Issue/Holding: Jury instructions on the elements of duty and intent under § 946.12(3) created mandatory conclusive presumptions:

¶10      Schultz contends that the following sentences in the jury instruction given by the trial court operated as mandatory conclusive presumptions on the issues of intent and duty: “The use of a state resource to promote a candidate in a political campaign or to raise money for a candidate provides to that candidate a dishonest advantage” (establishing the intent element);

State v. Edward Bannister, 2007 WI 86, 302 Wis. 2d 158, 734 N.W.2d 892, reversing 2006 WI App 136

Issue/Holding: Bannister’s confession to giving morphine to someone who died from an overdose of the substance was sufficiently corroborated to support his his conviction:

¶ 22 We first address whether the State satisfied the corroboration rule during the course of Bannister’s trial. The corroboration rule is a common-law standard.

State v. Daniel J. Machgan, 2007 WI App 263
For Machgan: Patrick M. Donnelly

Issue/Holding: An out-of-state administrative DL suspension, not the result of a refusal, isn’t counted as a “conviction” for purposes of OWI enhancement:

¶12      After examination of these relevant statutes, we conclude that Wis. Stat. § 343.307, as the specific statute addressing out-of-state convictions, suspensions or revocations that are to be counted as priors for the purpose of penalty enhancement,

State v. Aprylann Wuteska, 2007 WI App 157, PFR filed 6/14/07
For Wuteska: Mark H. Bennett

Issue/Holding: The plain text of § 346.67(1)(a) requires the operator of a vehicle involved in an accident resulting in injury to a person or damage to a vehicle to identify him or herself as the operator:

¶13 Applying these principles, we conclude the only reasonable meaning of Wis.

State v. Dawn R. Dartez, 2007 WI App 126, PFR filed 4/23
For Dartez: Bill Ginsberg

Issue/Holding: The definition of “highway” for purposes of the hit-and-run statute, § 346.67(1), is found in § 340.01(22), ¶ n. 3.

State v. Dawn R. Dartez, 2007 WI App 126, PFR filed 4/23
For Dartez: Bill Ginsberg

Issue: Whether hit-and-run liability attaches to an accident occurring on private property.

Holding:

¶13      In this case, as already noted, we are concerned with the meaning of “accident” in Wis. Stat. § 346.67(1) in conjunction with the requirement of “upon the highway” in Wis. Stat.

State v. Darren A. Kliss, 2007 WI App 13
For Kliss: Michael C. Witt

Issue/Holding:

¶7        … Because the implied consent law makes no provision for the right to counsel, an officer is correct to record a refusal if the arrestee insists on speaking to an attorney before answering.…¶8        … County of Ozaukee v. Quelle, 198 Wis. 2d 269, 276, 542 N.W.2d 196 (Ct.

State v. Darren A. Kliss, 2007 WI App 13
For Kliss: Michael C. Witt

Issue/Holding: Administering Miranda rights prior to the “Informing the Accused” caution applicable to OWI does not invalidate the latter (at least where the motorist is concurrently under arrest for a separate crime):

¶14      There is no dispute that Thomas read Kliss the Miranda warning prior to reading the Informing the Accused.

State v. Jonathan J. Hubbard, 2007 WI App 240, (AG’s) PFR filed 11/20/07
For Hubbard: Steven Zaleski

Issue/Holding: The construction of “materially impaired” by State v. Waalen, 130 Wis. 2d 18, 27, 386 N.W.2d 47 (1986), clarifies the meaning of that OWI element:

¶9    In Waalen, … (t)he court stated that material impairment “exists when a person is incapable of driving safely,

State v. Henry E. Routon, 2007 WI App 178, PFR filed 7/23/07
For Routon: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶18   Wisconsin Stat. § 939.31 sets forth the elements of the crime of conspiracy applicable under Wis. Stat. § 961.41(1x).[8] Section 939.31 provides:

…. whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may,