On Point: 9. Crimes

State v. Taras O. Haliw, 2021AP1095, District 4, 1/13/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Haliw argues his license shouldn’t be revoked for refusing a chemical test for alcohol because the police didn’t have probable cause to arrest him for OWI, see § 343.305(9)(a)5.a. The court of appeals rejects his argument.

State v. Carl Lee McAdory, 2021 WI App 89; case activity (including briefs)

McAdory was charged with driving with a detectable amount of restricted controlled substances—cocaine and THC—and driving under the influence of those substances. At trial, the state convinced the trial judge to modify the standard jury instruction for the latter charge, Wis. J.I.—Criminal 2664, by deleting the statement that not every person who has consumed controlled substances is “under the influence.” This modification, coupled with the prosecutor’s closing argument that it had proven its case by proving McAdory had a detectable amount of the substances, effectively relieved the state of its burden to prove that McAdory was “under the influence.”

State v. Dallas R. Christel, 2020AP1127-1128-Cr, 12/8/21, District 2 (not recommended for publication); case activity (including briefs)

Christel argued that §940.235, which criminalizes strangulation and suffocation, (1) violates substantive due process on its face and as applied to him, (2) is overbroad, and (3) is void for vagueness. He also argued for a new-factor-based sentence modification on his bail-jumping convictions. The court of appeals torpedoed every claim.

State v. Nakyta V.T. Chentis, 2022 WI App 4; case activity (including briefs)

To convict someone of possession of a controlled substance, the State must prove both that he was in possession of the substance and that he knew or believed he was in possession of it. State v. Christel, 61 Wis. 2d 143, 159, 211 N.W.2d 801 (1973). See also Wis JI-Criminal 6000. In a published opinion, the court of appeals holds Chentis knew he possessed a trace amount of heroin–undetectable until the State Crime Lab applied a special chemical to paraphernalia–based on fresh track marks on his arm.

State v. Thomas Louis Giegler, 2021AP952-CR, 11/2/21, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)

Unbelievable. A jury convicted Geigler of knowing violation of a TRO. The court of appeals now reverses the conviction because the State’s evidence was insufficient to prove guilt beyond a reasonable doubt. It remands the case with instructions for the circuit court to enter a judgment of acquittal on that charge.

Town of Brookfield v. Martin M. Gonzalez, 2021AP218, District 2, 10/27/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Gonzalez posted some photos on Instagram as a “story,” a series of shorter, more casual, less permanent images or posts than standard posts on a user’s Instagram feed (so we’re told). The first photo showed a ticket to an upcoming movie at a Brookfield cinema. The second showed loose bullets and a hand holding a loaded magazine. The third showed the inside of a darkened movie theater. (¶3). This “story” led to Gonzalez being convicted for violating the municipality’s disorderly conduct ordinance, a conviction the court of appeals now vacates.

State v. Edward R. Gasse, 2021AP484, 9/29/2021, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Gasse arrived at the police station shortly after midnight; officers had observed him about 80 minutes prior at his residence and believed him to be drunk. He initially said he’d driven there but later changed his story; video surveillance revealed that he had, in fact, driven. After some limited field sobriety testing, the officer at the station arrested him and he refused to consent to chemical testing. He appeals the circuit court’s determination that there was probable cause for the arrest and thus that the refusal citation was lawful.

State v. Kody R. Kohn, 2020AP2147-CR, District 2, 9/22/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Kohn argues the circuit court erred in: 1) denying his motion to suppress evidence obtained from the blood drawn from him after his arrest; 2) excluding exhibits he wanted to use to cross examine the state’s blood analyst; and 3) rejecting his motion to dismiss a bail jumping charge. The court of appeals affirms all the circuit court’s decisions.

State v. Donald P. Coughlin, 2019AP1876-CR, petition for review of an unpublished court of appeals decision granted 9/14/21; case activity (including briefs)

Issues presented (from State’s petition for review)

1. How does a court consider the theory of guilt in an evidence sufficiency claim when an inconsistency exists between a jury instruction and verdict?

2. Must a court accept a jury’s resolution of any vagueness in testimony as jury credibility and weight determinations and must a court then adopt the reasonable inferences that a jury may have drawn from the evidence?

3. Has Coughlin, as the defendant challenging the sufficiency of the evidence, met his heavy burden to overcome the great deference this Court gives to the jury and its verdict to satisfy that the evidence, viewed most favorably to the State and the convictions, was insufficient to sustain the 15 guilty verdicts relating to his sexual assaults of John Doe 2 and John Doe 3?

State v. Derek V. Schroth, 2021AP733, District 2, 8/25/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Schroth challenges the probable cause to arrest him for OWI and the finding that he refused a blood draw. There were ample facts for probable cause. (¶¶3-8, 13-15). And though the arresting officer couldn’t recall whether Schroth said “no” or “something else” when asked to submit to a blood draw,