On Point: 9. Crimes

State v. Alan J. Ernst, 2005 WI 107, on certification
For Ernst: Jeffrey W. Jensen

Issue1: Whether violation of the standards mandated by State v. Klessig, 211 Wis. 2d 194 ¶24, 564 N.W.2d 716 (1997) for valid waiver of counsel supports a collateral attack on a prior conviction.
Holding1:

¶25      … For there to be a valid collateral attack,

State v. Brandon J. Matke, 2005 WI App 4, PFR filed 1/6/05
For Matke: James B. Connell

Issue: Whether the number of prior OWI convictions used for penalty enhancement, § 346.65(2), is determined as of date offense is committed or date of sentencing for offense.
Holding:

¶5. How and when to count prior OMVWI convictions for purposes of penalty enhancement under Wis.

State v. Richard B. Wilkens, 2005 WI App 36
For Wilkens: Waring R. Fincke

Issue/Holding:

¶14. In Wisconsin, the general standard for admissibility is very low. Generally, evidence need only be relevant to be admissible. See Wis. Stat. § 904.02; State v. Eugenio, 219 Wis. 2d 391, 411, 579 N.W.2d 642 (1998) (“All relevant evidence is admissible unless otherwise provided by law.”).

State v. Patrick J. Fahey, 2005 WI App 171

Issue: Whether requested alternative testing at agency expense is deemed a “request” within § 343.305(5)(a) where made after driver was released from custody, left police department, and then returned about 15 minutes later, ¶7.

Holding:

¶14      … The State, in keeping with the circuit court’s decision, argues that it is unreasonable to think that the legislature meant to hold open the time period for a request beyond when a suspect is released from custody.

State v. Brandon J. Matke, 2005 WI App 4, PFR filed 1/6/05
For Matke: James B. Connell

Issue/Holding:

¶16. Matke also contends that the trial court’s interpretation of Wis. Stat. § 346.65(2), which is now ours as well, violates due process because it permits the court to sentence him for a sixth OMVWI without requiring the State to convince a jury beyond a reasonable doubt that he had five prior OMVWI convictions.

State v. Neil P. Jackson, 2005 WI App 104
For Jackson: Timothy A. Provis

Issue/Holding:

¶7 Jackson alleges that the jury instruction on conspiracy violated his right to due process because, he contends, “conspiracy to attempt” is a nonexistent crime. Jackson relies on United States v. Meacham, 626 F.2d 503 (5th Cir. 1980), and People v. Iniguez,

State v. Peter A. Fonte, 2005 WI 77, reversing unpublished decision
For Fonte: Martha A. Askins, SPD, Madison Appellate

Issue/Holding: § 940.09 is constitutional, as against a challenge that it relieves the State of proving a causal connection between intoxication and death; reasoning in, and result of, State v. Caibaiosai, 122 Wis. 2d 587, 363 N.W.2d 574 (1985) reaffirmed, ¶38.

State v. Peter A. Fonte, 2005 WI 77, reversing unpublished decision
For Fonte: Martha A. Askins, SPD, Madison Appellate

Issue/Holding: Fonte’s emotionally charged statement to a police officer at the scene that he “thought the boat was out of gear,” corroborated by a companion’s “grudging admission that he had agreed that Fonte was operating the boat” is sufficient to satisfy the § 940.09 element of “operating,” ¶21.

State v. Mahlik D. Ellington, 2005 WI App 243
For Ellington: Andrea Taylor Cornwall

Issue/Holding: The following instruction is sufficient: “Great bodily harm means serious bodily injury.  You, the jury, are to alone to determine whether the bodily injury in your judgment is serious.” (La Barge v. State, 74 Wis. 2d 327, 333, 246 N.W.2d 794, 797 (1976) and Cheatham v. State,

State v. Michael A. DeLain, 2005 WI 52, affirming, as modified, 2004 WI App 79
For DeLain: Robert R. Henak

Issue/Holding:

¶9        To obtain a conviction for a violation of Wis. Stat. § 940.22(2), the State must prove three elements beyond a reasonable doubt:  (1) that the defendant was or held himself or herself out to be a therapist; (2) that the defendant had intentional sexual contact with a patient or client;