On Point: 9. Crimes

St. Croix County v. Kelly M. Lagerstrom, 2019AP928, District 3, 8/10/21 (one-judge decision; ineligible for publication); case activity (including briefs)

As in State v. Giese, 2014 WI App 92, 356 Wis. 2d 796, 854 N.W.2d 687, retrograde extrapolation testimony from a toxicologist was admissible as evidence of Lagerstrom’s possible blood alcohol content around the time the state alleged he drove his car into a ditch.

State v. Aaron Matthew Oleston, 2020AP952-CR, District 4, 7/15/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Olseston was charged with five counts of disorderly conduct for “hurling profanities and personal insults” (¶14) at Janesville police officers as they came and left the police station, as well as filming some of the encounters. Three of the five counts can’t be prosecuted because Oleston’s conduct was protected by the First Amendment; the other two can be, because they went beyond protected speech.

State v. Charles L. Neevel, 2021AP36, 7/1/21, District 4 (one-judge decision ineligible for publication) case activity (including briefs)

Neevel was arrested on suspicion of drunk driving. The officer read him the implied consent “informing the accused” form, and Neevel agreed to a blood draw. He moved to suppress, lost, and pleaded no contest to OWI. On appeal, he renews the argument he made in trial court: that the officer should instead have ordered a less intrusive test, such as a breath test. (The officer did, in reading the form, tell Neevel he could have an alternative in addition to the blood draw; Neevel’s contention is that he should have been offered a different test instead of the blood draw.)

State v. Mitchell L. Christen, 2019AP1767-CR,  affirming an unpublished court of appeals decision; 5/4/21, case activity (including briefs)

Christen was armed while drunk in his apartment when he threatened to shoot his roommates.  A jury found that he violated §941.20(1)(b), which makes it a crime to operate or go armed with a firearm while intoxicated. Christen challenged the constitutionality of §941.20(1)(b) as applied to him because it burdened his 2nd Amendment right to armed self-defense under District of Columbia v. Heller, 554 U.S. 570 (2008). In a 5-1-1 opinion, SCOW rejects this challenge. Hagedorn concurs. R.G. Bradley dissents arguing in part that the prevalence of guns and copious alcohol consumption in the colonies show that the Framers guaranteed Americans the right to be armed while drunk.

City of Cedarburg v. Katherine D. Young, 2020AP1848, District 2, 3/17/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Young was prosecuted for an OWI 1st offense that did not arise out of a traffic stop or involve police collecting blood or breath samples or even testifying at trial. Can that be done? Sure, it can. And the evidence that was presented at trial was sufficient to convict her, too.

State v. Donald P. Coughlin, 2019AP1876-CR, District 4, 3/4/21 (not recommended for publication), state’s petition for review granted 9/14/21; case activity (including briefs)

In 2010 Coughlin was charged with over 20 counts of having sexual contact with three different children during various periods between 1989 and 1994. The court of appeals holds the evidence was insufficient to convict him of the counts involving  two of the children.

State v. Samuel Martin Polhamus, 2019AP2339-CR, 1/28/21, District 4 (1-judge opinion, ineligible for publication); case activity

The State charged Polhamus with bail-jumping and disorderly conduct. A jury acquitted on the first charge and convicted on the second. Polhamus appealed pro se and, according to the court of appeals, appeared to argue that the State’s evidence of his alleged disorderly conduct both inside and outside of a bar was insufficient.

State v. Leevan Roundtree, 2012 WI 1, 1/7/21, affirming a per curiam court of appeals opinion, 2018AP594-CR; case activity (including briefs)

In 2003, Roundtree was convicted of multiple felony counts of failure to pay child support. Twelve years later, police executed a search warrant at his home and found a firearm and ammunition under his mattress. He pled guilty to one count of felon in possession. On appeal, he argued that §941.29(2)(2013-2014), which barred him from possessing a firearm, is unconstitutional as applied to his case. The statute has no time limit and draws no distinction between serious or violent felonies versus less serious felonies like failure to pay child support. In a 5-2 decision SCOW upheld the statute.

State v. Savage, 2020 WI 93, 12/23/20, reversing a court of appeals opinion; case activity (including briefs).

Savage, who was homeless, claimed he received ineffective assistance of counsel when his lawyer failed to advise him that he had a defense under State v. Dinkins, 2012 WI 24, 339 Wis. 2d 78, 810 N.W.2d 787 before he pled guilty to violating the sex offender registry rule that he provide his address to the DOC. According to Savage and the court of appeals, Dinkins held that a homeless person is exempt from sex offender registration requirements.  In a unanimous opinion, SCOW reverses, holds that Dinkins did not establish that broad exemption, and thus counsel did not perform deficiently.

Washington County v. James Michael Conigliaro, 2020AP888, District 2, 12/9/20 (1-judge opinion, ineligible for publication); case activity (including briefs)

Conigliaro appealed an order finding that he refused to submit to an evidentiary chemical test. He argued that the arresting officer, Joseph Lagash, led him to believe that he had the right to consult with an attorney before deciding whether to submit to the test and/or that Lagash failed to dispel his belief that he had the right to counsel. The court of appeals rejects both arguments.