On Point blog, page 68 of 87
Representations Depicting Nudity, § 942.09 – Sufficiency of Evidence
State v. Mark E. Nelson, 2006 WI App 124, PFR filed 6/22/06
For Nelson: Robert R. Henak; Amelia L. Bizzaro
Issue/Holding: The evidence was sufficient to sustain conviction under § 942.09 for videotaping into a bathroom notwithstanding that the window was open, under the following circumstances:
¶53 Applying this standard, we conclude the evidence was sufficient for the jury to find Nelson guilty of violating Wis.
Guilty Pleas – Factual Basis – Particular Instances: Obstructing (“Lawful Authority” of Police Officer)
State v. Anna Annina, 2006 WI App 202
For Annina: Robert R. Henak
Issue/Holding: Although police entry into the defendant’s house was pursuant to a search warrant later declared to be invalid, the defendant’s acts in response to that entry amounted to disorderly conduct which did allow for an arrest under lawful police authority; defendant could therefore be convicted for resisting a lawful arrest for disorderly conduct,
Guilty Pleas – Factual Basis – Particular Examples: Reckless Endangering — Competing Inferences
State v. Wayne A. Sutton, 2006 WI App 118, PFR filed 6/18/06
For Sutton: William E. Schmaal, SPD, Madison Appellate
Issue: Whether the guilty plea to first-degree reckless endangering, amended from battery, was supported by a factual basis.
Holding:
¶21 At the plea hearing, the State presented the basis for the amended charge of first-degree reckless endangerment, relying in part on statements Sutton made to a West Bend police officer.
Guilty Pleas – Factual Basis – Particular Instances: Causing Child Prostitution
State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro
Issue/Holding: Allegations in the complaint of repeated “dope dating” (giving a minor cocaine on multiple occasions in exchange for sex) established a factual basis for guilty plea to causing the child to practice prostitution within the meaning of § 948.08, ¶¶25-35.
Guilty Pleas – Factual Basis – Particular Instances: Kidnapping
State v. Reinier A. Ravesteijn, 2006 WI App 250
For Ravesteijn: Rudolph L. Oldeschulte
Issue/Holding: Kidnapping is mitigated from a Class B to Class C felony if the victim is released without permanent physical injury prior to the first witness’s testimony, ¶17. When accepting a guilty plea to Class B kidnapping the court must ascertain a factual basis for excluding the Class C offense, at least where there is some evidence in the record to support it,
Guilty Pleas – Factual Basis — Particular Instances: Sexual Assault (Intercourse/Cunnilingus)
State v. Steven A. Harvey, 2006 WI App 26
For Harvey: Christopher William Rose
Issue/Holding: Rejecting the JI Committee definition of “cunnilingus,” the court “ conclude(s) that the statutory scheme of the sexual assault law does not require proof of ‘stimulation of the clitoris or vulva,’” ¶¶11-21.
¶21 The complaint and the undisputed evidence presented at the preliminary hearing demonstrated that Harvey performed an act of nonconsensual cunnilingus by placing his mouth on the victim’s genital area.
Unfair Prejudice, § 904.03 – Misconduct Evidence, Marijuana Use — § 940.10(1), Homicide by Negligent Operation of Vehicle
State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate
Issue/Holding1: Evidence of the driver’s marijuana use just before the accident resulting in the charged homicide by negligent use of vehicle was relevant and admissible:
¶48 Although the toxicology expert could not tie the level of THC detected in Schutte’s blood to a specific level of impairment,
Double Jeopardy – Multiplicity – Particular Crimes – Reckless Injury – Same Victim, Multiple Blows
State v. Rachel W. Kelty, 2006 WI 101, reversing unpublished decision
For Kelty: Michael J. Fairchild
Issue/Holding: The defendant’s striking the victim “twice with two separate objects, each time committing herself to strike the baby, each blow separate, distinct, not identical in fact,” supports two separate charges of first-degree reckless injury, § 940.23(1)(a), ¶¶49-50.
OWI — Enhancement – Collateral Attack, Prior Refusal
State v. Keith S. Krause, 2006 WI App 43
For Krause: Roger G. Merry
Issue/Holding: Because collateral attack on a prior conviction used as a sentencing enhancer is limited to denial of counsel, and because the right to counsel does not attach to a civil proceeding, a refusal revocation is not subject to collateral attack on its use as an OWI enhancer:
¶12 In an enhanced-penalty situation,
Common Law defenses – Collateral Attack on Element of Custody Order, § 948.31, as Procured by Fraud
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether a § 948.31 defendant is entitled to raise a common-law privilege defense against the element of “legal custody” by collaterally attacking the court’s custody order as having been procured by fraud.
Holding:
¶56 There are good reasons not to recognize a common law affirmative defense of fraud to interference with child custody.¶57 One species of affirmative defense——exemplified by self-defense and the now-abrogated privilege to resist unlawful arrest——that courts recognize arises where a person is faced with the difficult decision whether to commit a crime or suffer an injury not otherwise susceptible to effective redress.