On Point: 9. Crimes

State v. Scott William Forrett, 19AP1850, 2022 WI 37, 6/3/2022, affirming a published court of appeals decision; case activity (including briefs)

In 1996, the state revoked Scott Forrett’s driver’s license under Wis. Stat. § 303.305(10) because he refused a blood test for alcohol. Under the state’s statutory scheme of progressive punishment for OWIs, that revocation counts the same as a prior conviction for drunk driving would. The state supreme court now holds this statutory scheme unconstitutional, saying it imposes increased criminal penalties on those who assert their Fourth Amendment right to refuse a warrantless blood draw. This means that Forrett’s conviction in the case before the court–for an OWI from 2017–is a sixth, not a seventh, offense.

State v. Donald P. Coughlin, 2019AP1876-CR, 2022 WI 43, reversing an unpublished court of appeals opinion; case activity (including briefs)

How should an appellate court measure the sufficiency of the evidence to support a jury verdict where the instructions and the special verdict define the crime differently? In a 5-1 opinion, the majority held, based on the facts of this particular case, that the jury instructions should control. It then considered whether the evidence of child sexual assault was sufficient even though the State failed to prove that the charged conduct occurred during the charged time periods. The majority drew inferences in favor of the verdict and answered “yes.” Justice Dallett dissented on both points. Justice Karofsky did not participate.

Daniel Doubek v. Joshua Kaul, 2022 WI 31, 5/20/22, on certification from the court of appeals; case activity (including briefs)

A person convicted of a “misdemeanor crime of domestic violence” as defined under federal law, 18 U.S.C. § 921(a)(33)(A), is barred from possessing a gun under federal law and, therefore, from getting a license to carry a concealed weapon in Wisconsin, § 175.60(3)(b). A unanimous supreme court holds that a violation of § 947.01(1) is not a misdemeanor crime of domestic violence.

State v. Dominic A. Caldiero, 2021AP1163-CR, District 4, 4/28/22 (one-judge decision; ineligible for publication); case activity (including briefs)

When he drove in 2019, Caldiero was still “subject to” a 2015 court order under § 343.301 (2013-14) restricting his operating privilege to cars with an ignition interlock device (IID) because the time period on that restriction does not begin to run till DOT issues him a driver’s license, and that hadn’t happened as of the date he was driving.

State v. Antonio Darnell Mays, 2022 WI App 24; case activity (including briefs)

Mays was accused of forcing his way into an apartment with and firing a gun at at least one of its occupants. One occupant fired back; in the end, two people were dead. The state initially charged Mays with, among other things, a reckless homicide for each of the deaths. But when, at trial, the evidence suggested that one of the decedents had been shot not by Mays, but by the occupant returning fire at Mays, the state moved to amend the information as to that death to charge felony murder instead. Mays opposed the amendment, and ultimately the state instead convinced the court to instruct the jury on felony murder as a lesser-included offense of reckless homicide. The jury convicted Mays of this lesser-included (and other counts).

Forest County v. Brian M. Steinert, 2020AP1465, District 3, 1/19/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Steinert challenged his refusal citation on the ground the police didn’t have probable cause to arrest him, see § 343.305(9)(a)5.a. The court of appeals rejects his challenge.

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.