On Point blog, page 71 of 87
§ 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.
OWI – Evidence – Intoximeter EC/IR – Approval of Instrument by DOT
State v. Larry N. Winsand, 2004 WI App 86, PFR filed 4/12/04
For Winsand: Ralph A. Kalal
Issue: Whether results of an Intoximeter EC/IR breath test was inadmissible because approval of this testing instrument by the chief of the DOT chemical test section involved standards that should have been but were not promulgated as administrative rules under ch. 227.
Holding:
¶7.
OWI — Implied Consent, Driver’s Request for Additional Test, §§ 343.305(4) and (5)
State v. James A. Schmidt, 2004 WI App 235
For Schmidt: Daniel S. Diehn
Issue: Whether § 343.305(5)(a) requires that the driver request an additional test after the police have administered the primary test and, if not, whether Schmidt’s pre-blood draw request for a breathalyzer was properly rejected.
Holding:
¶11. Although Wis. Stat. § 343.305(4) and (5) use the term “alternative test,”
OWI — Second or Subsequent Offense, Prior Conviction – Foreign Case Resulting in “Court Supervision”
State v. Arthur C. List, 2004 WI App 230, PFR filed 12/22/04
For List: Joseph L. Polito
Issue: Whether an Illinois OWI charge resulting in court supervision is a “conviction” within the meaning of § 343.307(1)(d).
Holding:
¶5. List contends that under Wis. Stat. § 343.307(1)(d) only OWI offenses that result in formal conviction as defined by the laws of a foreign state count for the purpose of charging a Wisconsin OWI suspect.
OWI – Preliminary Breath Test, § 343.303 – Refusal, Support for Reasonable Suspicion for Blood Draw
State v. Christopher M. Repenshek, 2004 WI App 229, PFR filed 12/17/04
For Repenshek: Stephen E. Mays
Issue/Holding: Refusal to submit to a PBT may support a conclusion of reasonable suspicion for a blood draw:
¶25. Key to understanding our analysis is understanding that Wis. Stat. § 343.303 does not contain a general prohibition on police requesting a PBT. Rather, the statute only imposes a limitation on the use of a PBT result in a particular situation,