On Point blog, page 75 of 87
§ 948.02(2), 2nd-Degree Sexual Assault (by Contact) — Elements – “Intentional” (Vs. “Knowing”) Contact
State v. John A. Jipson, 2003 WI App 222
For Jipson: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: The specifically prohibited “purpose” of sexual contact (i.e., sexual degradation, humiliation, arousal, or gratification) is not listed in § 948.02(2), but is nonetheless defined in § 948.01(5) as an element. ¶9 and id., n. 4, following State v. Bollig, 2000 WI 6, ¶50, 232 Wis.
Due Process – Scienter, § 948.12
State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03
For Schaefer: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶32. Schaefer claims that by allowing conviction for possession of child pornography when a defendant “reasonably should know” that the child depicted is under eighteen years of age, Wis. Stat. § 948.12 omits a scienter requirement for the offense. He contends that in expressing the intent element regarding the minority of the depicted child in the pornographic materials as “knows or reasonably should know,”
§ 948.02(2), Attempted Sexual Assault (Intercourse); § 948.07 (Attempted) Enticement – Initiated Over Internet – First Amendment
State v. James F. Brienzo, 2003 WI App 203, PFR filed 10/10/03
For Brienzo: Jerome F. Buting
Issue/Holding: Prosecution for attempted sexual assault of a child initiated over the Internet isn’t barred by the first amendment. ¶¶23-24, applying State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287 (permitting prosecution for enticement). Same re: attempted enticement, ¶2:
We conclude that pursuant to State v.
Multiplicity: § 948.12, Child Pornography – Photographs Stored on Disk
State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03
For Schaefer: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: Individual pornographic photos, all found on the same storage disk, support individual charges, it being “reasonable to assume that the existence of multiple files on the Zip disk demonstrates that Schaefer made a new decision to download a particular image file.9 Therefore, each image file ‘represent[s] a new volitional departure,’ and the charges against Schaefer are different in fact.” ¶50.
Non-Support, § 948.22 – Statute of Limitations — Support Arrearages, § 893.40 – Accrual upon Entry of Support Judgment
State v. Walter Junior Benjamin, 2003 WI 50, affirming 2002 WI App 89
For Hamilton: Robert A. Ramsdell
Issue/Holding:
¶3. Walter’s case raises questions about the application of statutes of limitations to child support collection actions. The issue presented is whether the State, as an assignee of Walter’s deceased former wife, filed a timely action to collect child support arrearages in 2000.
First Amendment – Overbreadth – Travel Restrictions – “Banishment” from Victim’s County
Predick v. O’Connor, 2003 WI App 46
Issue/Holding: Banishment from victims’ county, under harassment injunction, § 813.125, upheld:
¶18 Thus, banishment is not a per se constitutional violation. As the previous discussion demonstrates, there is no exact formula for determining whether a geographic restriction is narrowly tailored. Each case must be analyzed on its own facts, circumstances and total atmosphere to determine whether the geographic restriction is narrowly drawn.
§ 904.01, Relevance – Racketeering — Losses Incurred by Defrauded Investors
State v. Bernell Ross, 2003 WI App 27, PFR filed 2/21/03
For Ross: Andrew Mishlove
Issue/Holding: Evidence of investor losses is relevant to a charge of racketeering, § 946.83. ¶37.
Guilty Pleas – Required Knowledge — Elements — 2nd-Degree Sexual Assault (by Contact), § 948.02(2) — “Knowing Contact” Insufficient
State v. John A. Jipson, 2003 WI App 222
For Jipson: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: On a charge of 2nd-degree sexual assault, § 948.02(2), the guilty plea court must ascertain the defendant’s knowledge of the element of intent, namely that the defendant had sexual contact for the purpose of sexual degradation, humiliation, arousal, or gratification. It is insufficient to advise the defendant merely that “knowing contact” was necessary,
Defense of Self – Carrying Concealed Weapon
State v. Tony Nollie, 2002 WI 4, on certification
For Nollie: Erich Straub
Issue: Whether defendant was entitled to assert the privilege of self-defense to the charge of carrying concealed weapon.
Holding:
¶24. To argue self-defense, Nollie’s offer of proof must indicate that he had an actual and reasonable belief of actual or imminent unlawful interference. In this case, there was no actual or imminent unlawful interference to speak of.
§ 941.23, Carrying Concealed Weapon — Constitutionality
State v. Adam S. Gonzales, 2002 WI 59, on certification
For Gonzales: Suzanne L. Hagopian, SPD, Madison Appellate
Issue: Whether the crime of carrying a concealed weapon, § 941.23, is constitutional in light of Article I, Section 25 of the Wisconsin Constitution, which creates a right to keep and bear arms.
Holding: Because the crime was committed before the effective date of Article I, Section 25 (November 30,