On Point blog, page 63 of 87
Theft by Fraud, § 943.20(1)(d) – Element of Misrepresentation – Satisfied by Failure to Discharge Duty to Disclose
State v. Dale C. Ploeckelman, 2007 WI App 31
For Ploeckelman: Rand Krueger
Issue/Holding:
¶18 A representation can be acts or conduct. See Stecher v. State, 168 Wis. 183, 186, 169 N.W. 287 (1918). In Kaloti Enters., Inc. v. Kellogg Sales Co., 2005 WI 111, 283 Wis. 2d 555, 699 N.W.2d 205, our supreme court laid out the circumstances where a failure to disclose can constitute a representation.
Prostitution, § 944.30(1) – Sufficiency of Evidence – On Charge of Soliciting Intercourse: Offer to Watch Subject Masturbate
State v. David Richard Turnpaugh, 2007 WI App 222
For Turnpaugh: David P. Geraghty, Michael Sosnay
Issue: Given that, as charged, the offense required soliciting “sexual intercourse” (which in turn is defined as “vulvar penetration”), whether the statement “that he was looking for sex and he wanted me to masturbate and that he wanted to watch” is sufficient to support conviction.
Holding:
¶7 Although Turnpaugh said he was “looking for sex,” he limited the scope of that phrase by describing >what he was willing to pay for—watching Ferguson masturbate.
Bail-Jumping, § 946.49(1)(a) – Reversal of Conviction on Which Offense Premised
State v. David Richard Turnpaugh, 2007 WI App 222
For Turnpaugh: David P. Geraghty, Michael Sosnay
Issue/Holding: Reversal of the conviction for the crime on which the bail-jumping “was premised” also requires reversal of the bail-jumping conviction, ¶8.
This isn’t to say that bail-jumping requires >conviction on the underlying offense, see, e.g., State v. Kelley L. Hauk, 2002 WI App 226,
§ 948.02(2) – Elements, in Relation to Defense of Rape By the Child
State v. Monika S. Lackershire, 2007 WI 74, reversing 2005 WI App 265
For Lackershire: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶29 Lackershire’s second argument centers on the somewhat unique posture of this case. A violation of Wis. Stat. § 948.02(2) is generally viewed as a strict liability offense. Unlike other sexual assault offenses, where consent of the victim may be a central issue,
§ 948.025(3) – Prohibition on Multiple-Offenses in Same Proceeding – Remedy
State v. Jeffrey L. Torkelson, 2007 WI App 272, PFR filed 11/30/07
For Torkelson: Timothy A. Provis
Issue/Holding: The remedy for violation of the § 948.025(3) prohibition on charging multiple offenses in the same proceeding is limited to dismissal of the charges (not new trial):
¶26 … Wisconsin Stat. § 948.025(3) simply prohibits the State from charging certain enumerated offenses in the same action as a violation of § 948.025.
Distribution of Harmful Material to Children, § 948.11(2)(am) – Internet Chat Room Communication is “Verbal” Communication, within Statute
State v. Shawn B. Ebersold, 2007 WI App 232
For Ebersold: Lester A. Pines
Issue: Whether message sent via Internet chat room supports prosecution for § 948.11(2)(am), verbally communicating harmful material to child.
Holding:
¶9 In this case, the parties dispute whether Wis. Stat. § 948.11(2)(am) prohibits communication of a harmful description or narrative account to a child via an Internet chat message.
§ 948.31, Interference with Child Custody – Sufficiency of Evidence – Presence of Parent
State v. Isaiah Bowden, 2007 WI App 234
For Bowden: Jason R. Farris
Issue/Holding: Conviction for interference with custody, § 948.31(2), doesn’t require that the child be within the parent’s immediate presence or control:
¶18 The State posits that the withholding method of interference focuses on permission, not being in the parent’s presence. We agree. The withholding method addresses a situation where the person who takes the child has some initial permission to do so.
Conspiracy to Manufacture Controlled Substance — § 961.41(1x), Elements — Generally
State v. Henry E. Routon, 2007 WI App 178, PFR filed
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,
Conspiracy to Manufacture Controlled Substance — Undercover Agent as Party to Agreement, Generally
State v. Henry E. Routon, 2007 WI App 178, PFR filed
For Routon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶19 The crime that is the subject of the conspiracy need not be committed in order for a violation of Wis. Stat. § 939.31 to occur; rather, the focus is on the intent of the individual defendant. State v. Sample,
Conspiracy to Manufacture Controlled Substance — Sufficiency of Evidence – Knowledge of Intended Use – Agreement
State v. Henry E. Routon, 2007 WI App 178, PFR filed
For Routon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: Evidence of conspiracy to manufacture controlled substance is sufficient, notwithstanding that the psilocybe spores that defendant sold were themselves legal, given “abundant evidence from which it is reasonable to infer that Routon marketed the psilocybe spores to persons who wanted to use them for the illegal purpose of growing mushrooms and that this was the predominant part of the business,” ¶30.