On Point blog, page 70 of 87
Possession with Intent to Deliver — Sufficiency of Evidence, Proof of Intent
State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey
Issue/Holding:
¶45 We further reject Stank’s argument that insufficient evidence existed to support the “intent to deliver” element of count two. According to Peasley v. State, 83 Wis. 2d 224, 229, 231-32, 265 N.W.2d 506 (1978), the finder of fact may consider many factors indicative of intent to deliver,
Possession with Intent to Deliver, §§ 961.41(1m), 961.01(6) – Sufficiency Of Evidence of Intent to Deliver
State v. Rickey Eugene Pinkard, 2005 WI App 226
For Pinkard: John J. Grau
Issue/Holding: Someone holding drugs for another person and planning to return the drugs to that person intends to deliver within the meaning of § 961.41(1m). State v. Smith, 189 Wis. 2d 496, 525 N.W.2d 264 (1995) (conspiracy to deliver not supported where only evidence is that seller intended to sell small amount for buyer’s personal use) distinguished,
Compulsory School Attendance, § 118.15(5)(b)2
State v. Gwendolyn McGee, 2005 WI App 97
For McGee: Amelia L. Bizarro
Issue/Holding: The disobedient-child defense to a compulsory-attendance charge is an affirmative defense issue to be presented to the fact-finder at trial for resolution (as opposed to disposition by pretrial motion).
Controlled Substance – Sufficiency of Evidence, Proof of Substance — Presumptive and Confirmatory Testing
State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey
Issue/Holding: Proof of the controlled substance is sufficient where a “presumptive” test is followed by a “confirmatory” one (State v. Dye, 215 Wis. 2d 281, 572 N.W.2d 524 (Ct. App. 1997), followed), with the PDR being used to establish the presumption:
¶42 Here,
§ 940.22(2), Sexual Exploitation by Therapist – Clergy as “Therapist,” Jury Instructions
State v. William E. Draughon III, 2005 WI App 162, (AG’s) PFR filed
For Draughton: Stephen L. Miller
Issue/Holding: Draughon, a pastor, was concededly a “clergy” member within § 940.22(2); however, the instructions relieved the State of its burden of proof on the element of whether he performed “therapy” in this capacity, in that they told the jury that a member of the clergy is a “therapist,” without specifically requiring that Draughon in fact performed therapy:
¶13 Jury instructions that have the effect of relieving the State of its burden of proving beyond a reasonable doubt every element of the offense charged are unconstitutional under the Fifth and Sixth Amendments.
OWI, § 346.63(1)(am) – Elements, Proof of “Impairment” Not Necessary
State v. Joseph L. Smet, 2005 WI App 263
For Smet: Christopher A. Mutschler
Issue/Holding: Proof of “impairment” is not a necessary element of § 346.63, ¶¶12-16.
Section 346.63(1)(am) (driving under influence of detectable amount of THC, regardless of impairment) is constitutional as against police power, due process, and equal protection attack, ¶¶6.
Defenses – § 948.03(2)(b) (2001-02), Harm to Child – Defense of Parental Privilege, § 939.45(5)
State v. Kimberly B., 2005 WI App 115
For Kimberly B.: Anthony G. Milisauskas
Issue/Holding:
¶30 While Wis. Stat. § 939.45(5) recognizes the right of a parent to inflict corporal punishment to correct or discipline a child, that right of parental discipline has its limits. Kimberly seems to suggest that the statute prohibits only force that is “intended to cause great bodily harm or death” or that “create[s] an unreasonable risk of great bodily harm or death.” However,
§ 940.225(2)(a), Second-Degree Sexual Assault – Sufficiency of Evidence – Timing of Force Element
State v. Obea S. Hayes, 2004 WI 80, affirming 2003 WI App 99, 264 Wis. 2d 377, 663 N.W.2d 351
For Hayes: Philip J. Brehm:
Issue/Holding:
¶64. We agree with the court of appeals that M.M.’s testimony did not follow a chronological order. A reasonable factfinder could, however, draw the inference that the defendant verbally threatened to have retaliatory sex with M.M.
Bail Jumping, § 946.49(1)(b) – Generally
State v. Daniel Wyatt Henning, 2004 WI 89
For Henning: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding:
¶39. In Wisconsin, bail jumping and the crime underlying a bail jumping charge are distinct and separate offenses for purposes of the Double Jeopardy Clause. State ex rel. Jacobus v. State, 208 Wis. 2d 39, 53, 559 N.W.2d 900 (1997) (citing State v.
Sexual Assault, § 948.02(2) — Defense of Deceitfully Misleading Defendant as to Minor’s Age
State v. Todd M. Jadowski, 2004 WI 68, on certification
For Jadowski: Richard Hahn
Issue: Whether a minor sexual assault complainant’s intentional misrepresentation of his or her age supports an affirmative defense to § 948.02(2) sexual assault.
Holding:
¶19. The defendant acknowledges that Wis. Stat. §§ 948.02(2), 939.23, and 939.43(2) prohibit an actor from raising mistake about the age of the minor as a defense to the charge of sexual assault.