On Point blog, page 3 of 4
Court of appeals lowers evidentiary threshold for proving “mental deficiency” under Sec. 940.225(2)(c)
State v. Bernard Ikechukwel Onyeukwu, 2014AP518-CR, 2/26/15, District 4 (not recommended for publication); click here for briefs.
The State charged the defendant with 10 counts of sexual assault, 5 of which required proof that the victim suffered from a mental deficiency and that the defendant knew it. The jury acquitted on 6 counts. Just 2 of the convictions required proof of mental deficiency. They spawned interesting grounds for appeal, but this decision just wasn’t up to the task.
State v. Brian S. Kempainen, 2013AP1531-CR; State v. Joel Hurley, 2013AP558-CR; petitions for review granted 9/18/14
On review of a published court of appeals decision in Kempainen (case activity) and a per curiam decision in Hurley (case activity)
Issues (adapted from the State’s PFR in Hurley):
Did the amended complaint charging repeated sexual assault of a child, which alleged that Hurley assaulted his stepdaughter at least 26 times over a five or six-year charging period, satisfy Hurley’s due process right to prepare a defense?
Did the circuit court properly exercise its discretion in admitting “other acts” evidence that Hurley repeatedly assaulted his sister when she was 10 and he was 14 in view of the greater latitude shown “other crimes” evidence in child sexual assault cases?
Did the circuit court err in ordering a new trial due to the prosecutor’s unobjected-to remark in closing argument about Hurley’s failure in his trial testimony to make a strong denial of his sister’s allegations?
State’s complaint need not precisely allege date of child sexual assault offenses
State v. Brian Kempainen, 2014 WI App 53, petition for review granted 9/18/14, affirmed, 2015 WI 32; case activity
In this case, the circuit court dismissed 2 counts of sexual assault of a child against Kempainen because the charges failed to provide sufficient notice of when the assaults occurred thus violating due process. The court of appeals, clarifying the test in State v. R.A.R. and State v. Fawcett, reversed and held that the date of the crimes need not be precisely alleged.
Defendant’s rights to free speech and religious freedom were not violated by prosecution for conspiracy to commit child abuse based on his preaching the use of the rod for child discipline
State v. Philip B. Caminiti, 2013AP730-CR, District 4, 3/20/14; court of appeals decision (not recommended for publication); case activity
The prosecution of Caminiti for conspiracy to commit child abuse, §§ 939.31 and 948.03(2)(b), based on his instructions to his congregants to use a rod to discipline their children did not violate his First Amendment rights to advocacy or freedom of religion.
Outrageous Governmental Conduct
State v. William Thomas Hudson, III, 2010AP1598-CR, District 4, 9/13/12
court of appeals decision (not recommended for publication); case activity
¶9 “The concept of outrageous governmental conduct originates from the Due Process Clause of the Fifth Amendment.” [State v. Givens, 217 Wis. 2d 180, 188, 580 N.W.2d 340 (Ct. App. 1998).] Outrageous governmental conduct may arise where the government’s conduct is so enmeshed in the criminal activity that prosecution of the defendant would be repugnant to the American criminal justice system.
Constitutional Defenses – Due Process and Strict Liability: Fraud-Induced Mistake-of-Age Defense to Sexual Assault of Minor
State v. Todd M. Jadowski, 2004 WI 68, on certification
For Jadowski: Richard Hahn
Issue: Whether due process supports an affirmative defense to sexual assault of a minor, § 948.02(2), based on the minor’s intentional misrepresentation of his or her age.
Holding:
¶36. Upon reading Wis. Stat. § 948.02(2), we conclude that the statute is clear and precise. The prohibited conduct is engaging in sexual intercourse with a child under the age of 16 years.
Constitutional Defenses – Bear Arms – Fundamental Right, Under Wis. Const. Art. I, § 25 – Necessary Showing
State v. Munir A. Hamdan, 2003 WI 113, on bypass
For Hamdan: Chris J. Trebatoski
Issue/Holding:
¶86. In the meantime, we must give effect to the constitutional right embodied in Article I, Section 25.39 A defendant who challenges on constitutional grounds a prosecution for carrying a concealed weapon will be required to secure affirmative answers to the following legal questions before he or she is entitled to raise a constitutional defense.
Constitutional Defenses – Ex Post Facto – Change in Statute of Limitations
State v. Jeffrey B. Haines, 2003 WI 39, 2002 WI App 139
For Haines: Mark A. Huesmann, Sonja Davig Huesmann
Issue/Holding: An extension of the limitation period for prosecuting a crime, before the prior limitation period has expired, doesn’t violate the ex post facto clause of the Wisconsin Constitution.
¶15. In sum, the court of appeals succinctly and correctly reasoned that:
[T]he 1994 amendment to Wis.
Constitutional Defenses – Notice of Charge – Vague Charging Period
State v. James D. Miller, 2002 WI App 197, PFR filed 8/2/02
For Miller: Matthew H. Huppertz, Craig Kuhary, Daniel P. Fay
Issue/Holding: The charging period of March 1, 1989, to March 31, 1993, was not too expansive to provide opportunity to prepare a defense, largely because of the victim’s youthfulness and vulnerable relationship (patient-therapist) to defendant, ¶31; and because the alleged offenses occurred during therapy sessions,
Due Process – Right to Present Defense — Rape-Shield Bar
State Charles A. Dunlap, 2002 WI 19, reversing, 2000 WI App 251, 239 Wis. 2d 423, 620 N.W.2d 398
For Dunlap: Jack E. Schairer, SPD, Madison Appellate
Issue: “(W)hether a defendant who is charged with sexual assault should be allowed to present evidence of sexual behavior exhibited by the child complainant prior to the alleged assault, even though the evidence would normally be barred by the rape shield law,