On Point blog, page 64 of 87
Keeping Drug Vehicle, § 961.42(1) – Element of “Keeping” – More than Mere Transport Required
State v. Wayne Charles Slagle, 2007 WI App 117
For Slagle: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding:
¶7 The interpretation of the statutory term “keeping” as “warehousing or storage for ultimate manufacture or delivery” comes from State v. Brooks, 124 Wis. 2d 349, 354-55, 369 N.W.2d 183 (Ct. App. 1985). Neither party challenges this interpretation of the statute. [5] Furthermore, Slagle does not dispute that the evidence shows the cocaine in his truck was “for ultimate manufacture or delivery.” The only dispute here is whether the trial evidence shows the cocaine was being “warehoused” or “stored” in Slagle’s truck.
Securities Fraud, § 551.41(2) – Promissory Note
State v. Kevin F. McGuire, 2007 WI App 139, PFR filed 6/4/07
For McGuire: Timothy A. Provis
Issue: Whether a promissory note is a “security” within the meaning of § 551.02(13(a).
Holding: The 4-factor test of In Reves v. Ernst & Young, 494 U.S. 56, 66-67 (1990) applies: “1) the motivations of a reasonable seller and buyer; (2) the note’s ‘plan of distribution’;
§ 125.075(1), Procuring Alcohol for Minor Resulting in Death – Element of Scienter
State v. Ronald L. Wille, 2007 WI App 27, PFR filed 2/28/07
For Wille: Jerome A. Maeder, Benjamin Welch
Issue: Whether the scienter element of § 125.075(1) requires proof that the defendant know that a particular individual is under the legal drinking age.
Holding:
¶11 Wille makes much of the fact that Wis. Stat. § 125.075(1) refers several times to the victim in the singular: “to a person under 18 years of age”;
§ 125.075(1), Procuring Alcohol for Minor Resulting in Death – Sufficiency of Evidence
State v. Ronald L. Wille, 2007 WI App 27, PFR filed 2/28/07
For Wille: Jerome A. Maeder, Benjamin Welch
Issue: Whether the evidence was sufficient under § 125.075(1) to show that the defendant had the underage victim had consumed alcohol provided by the defendant at a party for which the defendant supplied beer and sold red cups for the purpose of obtaining the beer (the victim became intoxicated and later died in a traffic accident after leaving the party).
§ 125.075(1), Procuring Alcohol for Minor Resulting in Death – Elements – State Need not Prove Victim’s Level of Intoxication
State v. Ronald L. Wille, 2007 WI App 27, PFR filed 2/28/07
For Wille: Jerome A. Maeder, Benjamin Welch
Issue/Holding:
¶31 … The State was under no obligation to establish the level of alcohol in Meshak’s blood at the time of the accident, or even to prove that he was intoxicated to the degree required for a conviction under Wis. Stat. § 346.63 (“Operating under influence of intoxicant or other drug”).
§ 125.075(1), Procuring Alcohol for Minor Resulting in Death – Jury Instructions: Causation
State v. Ronald L. Wille, 2007 WI App 27, PFR filed 2/28/07
For Wille: Jerome A. Maeder, Benjamin Welch
Issue/Holding:
¶24 Wille claims the trial court erred in instructing jurors that, to find Wille guilty of the charged crime, Meshak’s consumption of alcohol provided by Wille was required to be “a” substantial factor in causing Meshak’s death, instead of “the” substantial factor, as Wille requested.
Double Jeopardy – Multiplicity: Repeated Sexual Assault, § 948.025(1) – Different Counties
State v. Thomas A. Nommensen, 2007 WI App 224
For Nommensen: Anthony L. O’Malley
Issue/Holding: Although charges of repeated sexual assault, § 948.025(1) were the same in law, they were different in fact because they :
¶8 Charged offenses are not multiplicitous if the facts are either separate in time or of a significantly different nature. Id. at 749. “The appropriate question is whether these acts allegedly committed … are so significantly different in fact that they may properly be denominated separate crimes although each would furnish a factual underpinning or a substitute legal element for the violation of the same statute.” Id.
Exposing Minors to Harmful Materials, § 948.11(2) — Sufficiency of Evidence — Failure to Expose Those Alleged Materials to Jury
State v. Tyrone Booker, 2006 WI 79, reversing 2005 WI App 182
For Booker: Jeffrey W. Jensen
Issue: Whether conviction under § 948.11, exposing child to harmful materials, can be sustained where the jury heard the children’s and a detective’s descriptions of the videotape but did not themselves view it.
Holding:
¶25 When we view the evidence in this case most favorably to the State,
§ 941.23, CCW – As-Applied Constitutionality, in Light of Wis. Const. Art. I, § 25 – Tavern Owner, Gun in Car Console
State v. Scott K. Fisher, 2006 WI 44, on certification
For Fisher: Paul B. Millis
Issue: Whether the right to bear arms provision of Wis. Const. Art. I, § 25 countenances prosecution for carrying a concealed weapon in a car’s console by a tavern owner who asserted its necessity for security purposes in that he routinely transported large amounts of cash.
Holding:
¶5 … (W)e conclude that § 941.23 is constitutional as applied to Fisher because his interest in exercising his right to keep and bear arms for purposes of security by carrying a concealed weapon in his vehicle does not substantially outweigh the state’s interest in enforcing § 941.23.…
¶18 … Defendants have the burden of proof.
Hit-and-Run, § 346.67(1) – Element of “Accident”: May Encompass Intentional Conduct
State v. Stephen D. Harmon, 2006 WI App 214, PFR filed 10/26/06
For Harmon: Timothy A. Provis
Issue/Holding:
¶14 The “two clear purposes” of Wisconsin’s hit-and-run statute are:
(1) to ensure that injured persons may have medical or other attention with the least possible delay; and (2) to require the disclosure of information so that responsibility for the accident may be placed.