On Point: 9. Crimes

State v. Peter A. Fonte, 2005 WI 77, reversing unpublished decision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State v. Peter A. Fonte, 2005 WI 77, reversing unpublished decision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;

State v. Brent R. Reed, 2005 WI 53, affirming as modified 2004 WI App 98, and overruling State v. Joseph M. Espinoza, 2002 WI App 51
For Reed: David H. Weber

Issue/Holding:

¶21    … Wisconsin JI——Criminal 1766A (2003) accurately sets forth the elements of obstructing an officer based on giving false information to police as follows:

1. 

Ralph Ovadal v. City of Madison, 416 F.3d 351 (7th Cir 2005)

Issue/Holding: Use of disorderly conduct to Overdal’s peaceful protest (displaying large signs on Beltline pedestrian overpass) was not unconstitutionally vague as applied to him; however, remand required to determine whether the ban was content neutral and narrowly tailored.

State v. Kimberly B., 2005 WI App 115
For Kimberly B.: Anthony G. Milisauskas

Issue/Holding: “¶22      … The crime of physical abuse of a child, as applied to the matter at hand, requires proof beyond a reasonable doubt of the following three elements: (1) Kimberly caused bodily harm to Jasmine, (2) Kimberly intentionally caused such harm, and (3) Jasmine had not attained the age of eighteen years at the time of the alleged offense. 

State v. Marketta A. Hughes, 2005 WI App 155, PFR filed
For Hughes: John T. Wasielewski

Issue/Holding:

¶16      We conclude that the plain language of the statute makes clear that a seventeen-year-old employed by a parent to care for the parent’s child can be a person responsible for the welfare of the child. The record reflects that Marketta freely chose to assume responsibility for the welfare of Bryan at her mother’s request.

State v. Thomas Scott Bailey Smith, Sr., 2005 WI 104, reversing 2004 WI App 116
For Smith: Patrick M. Donnelly, SPD, Madison Appellate

Issue/Holding1:

¶15      Here, too, we examine the statute providing for the crime, Wis. Stat. § 948.22(2), to determine the elements of the crime of failure to pay child support, and we focus on the conduct that is prohibited therein.

State v. Thomas Scott Bailey Smith, Sr., 2005 WI 104, reversing 2004 WI App 116
For Smith: Patrick M. Donnelly, SPD, Madison Appellate

Issue/Holding: Smith’s unsuccessful prior challenge to the court support order bars him, under principles of claim preclusion, from challenging the validity of the order in the present non-support prosecution, ¶¶21-23.

The court invokes this principle as justification for rejection of Smith’s requested jury instruction on whether the issuing court exercised “competent jurisdiction.” Given the court’s holding that this matter is not an element,