On Point: 9. Crimes

State v. Douglas D., 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725, reversing unpublished court of appeals decision
For Douglas D.: Eileen A. Hirsch, SPD, Madison Appellate

Issue: Whether purely written speech may be punished as disorderly conduct, § 947.01, even where no disturbance results.

Holding: The disorderly conduct statute, applied to speech alone, is neither overbroad nor “underbroad” (i.e., discriminating on the basis of content),

State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams

Issue: Whether charges of completed and attempted sexual assault of the same victim were multiplicitous.

Holding:

¶34. The nature of the two acts was different because the attempted sexual assault was foiled by the victim’s resistance. There was some time separation between the two acts, sufficient for a question and answer.

State v. Timothy P. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359
For Koenck: Lew Wasserman

Issue: “(W)hether in a prosecution under § 948.07 the charges must be dismissed because the State cannot prove that the victim had not attained the age of eighteen [because the ‘victim’ is fictitious].” ¶7.

Holding:

¶28 Within the contemplation of WIS. STAT. § 948.07,

State v. James W. Whistleman, 2001 WI App 189
For Whistleman: Michael J. Devanie

Issue: Whether storage of images on a computer disk satisfies the “pictorial reproduction” element of § 948.12.

Holding:

¶7 … The computer disks taken from Whistleman’s residence produce visual images on the computer screen when a person inserts the disks into a computer and clicks on a file. We conclude the disks thus come within the ordinary meaning of “pictorial reproduction.”…

¶9.

State v. Stanley A. Samuel, 2001 WI App 25, 240 Wis. 2d 756, reversed, other grounds, 2002 WI 34
For Samuel: Robert R. Henak

Issue: Whether the evidence was sufficient to sustain conviction for interference with child custody, § 948.31(2) and abduction, § 948.30(1)(a).

Holding:

¶38      We adopt the State’s construction.  So long as the defendant has had a hand in physically removing the child from the parents’ possession,

State v. Davon R. Malcom, 2001 WI App 291, PFR filed 11/27/01
For Malcom: John D. Lubarsky, SPD, Madison Appellate

Issue: Whether the trial court properly amended the information, after close of evidence, to add a charge of keeping a place “which is resorted to by persons using controlled substances” to the charge of using the same place to manufacture, keep or deliver controlled substances (both charges being alternatives under § 961.41(2).

State v. Earl Steele III, 2001 WI App 34, 241 Wis. 2d 269, 625 N.W.2d 595
For Steele: Timothy J. Gaskell

Issue: Whether felon in possession of firearm may be the underlying felony to burglary (entry with intent to commit felony), § 943.10(1)(a), when the defendant-felon was already in possession of the firearm before entry.

Holding: “(A) person commits a burglary when he or she unlawfully enters the premises with the intent to commit a felony while on the premises,

State v. William Koller, 2001 WI App 253, PFR filed
For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate

Issue: Whether distinct types of sexual assault (mouth-vagina and penis-vagina) necessarily support distinct counts.

Holding:

¶59     There is another reason Koller’s second multiplicity challenge fails.  This second claim is directed primarily at the relationship between Count 4 (mouth-to-vagina contact), on the one hand, and Counts 3 and 5 (penis-to-vagina intercourse),

State v. Colleen E. Hansen, 2001 WI 53, 243 Wis. 2d 328, 626 N.W.2d 195, on certification
For Hansen: Pamela Pepper

Issue: “¶8 … ‘Does Wis. Stat. § 961.45 bar prosecution for the state crime of possession of cocaine with intent to deliver, where a defendant previously has been convicted, based on the same conduct, for the federal crime of conspiracy to possess cocaine with intent to distribute? Stated differently,

State v. Melvin L. Moffett and Jerrell I. Denson, 2000 WI 130, 239 Wis. 2d 629, 619 N.W.2d 918, affirming State v. Moffett/Denson, 2000 WI App 67, 233 Wis. 2d 628, 608 N.W.2d 733
For Moffett: Patrick J. Stangl; for Denson: Joseph L. Sommers

Issue:

¶2 The parties present the following question to this court: May the State charge the defendants with two crimes,