On Point blog, page 1 of 2

Court of appeals affirms circuit court’s fabrication of “oh shit” moment in speeding case

State v. Chris K. Feller, 2019AP318, 11/27/19, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

This appeal poses an interesting question of law: whether the justification defense available in certain civil forfeiture actions applies where a driver exceeds the speed limit in order to get away from another driver who is dangerously tailgating him on the freeway.  See State v. Brown, 107 Wis. 2d 44, 318 N.W.2d 370. The court of appeals contorts the undisputed facts in order to duck the issue.

Read full article >

COA finds sufficient evidence for all elements of resisting an officer

State v. Scott H. Wenger, 2017AP2305, 6/14/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Wenger got arrested for disorderly conduct and resisting at Art in the Park in Stevens point. The circuit court dismissed the DC but found him guilty, after a bench trial, of resisting. He claims insufficient evidence as to all three elements of resisting an officer:

Read full article >

Rule prohibiting collateral attacks on prior judicial orders applies to administrative orders

State v. Vernon D. Hershberger, 2014 WI App 86; case activity

As a general rule, a person may not collaterally attack a prior judicial order or judgment in a proceeding brought to enforce that order or judgment, e.g., State v. Campbell, 2006 WI 99, ¶¶51-55, 294 Wis. 2d 100, 718 N.W.2d 649. The court of appeals holds this rule also applies to proceedings brought to enforce an administrative order.

Read full article >

Traffic forfeiture — speeding — defense of “necessity”

State v. Tammy S. Camden, 2012AP1451, District 4, 5/23/13; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court concluded a driver’s speeding was legally justified after accepting her testimony that she exceeded the speed limit in order to get away from a vehicle following in close proximity and copying her every move. The court of appeals reverses, concluding the defense of legal justification or “necessity”

Read full article >

Reasonable Suspicion; Instructions – Party to a Crime – Evidentiary Support; Ineffective Assistance of Counsel

State v. Jermaine Kennard Young, 2010AP2959-CR, District 1, 3/6/12

court of appeals decision (not recommended for publication); for Young: Robert N. Meyeroff; case activity

Reasonable suspicion existed to justify investigative stop of Young, based on a tip from confidential informant that someone matching Young’s description would be at a specified time and place to sell drugs.

¶13      When determining the reliability of a CI’s tip,

Read full article >

Ineffective Assistance Claim – Necessity of Motion; Entrapment – Child Sex Crime with Computer

State v. Tushar S. Achha, 2009AP1977-CR, District 2, 1/26/11

court of appeals decision (3-judge, not for publication); pro se; case activity; State Resp.

Ineffective Assistance Claim – Necessity of Motion

Failure to preserve a challenge to trial counsel’s performance via postconviction motion waives the issue on appeal, ¶19.

Entrapment – Child Sex Crime with Computer

Challenge to sufficiency of evidence to negate entrapment defense rejected,

Read full article >

Common Law Defenses – Collateral Attack on Order as Element of Pending Offense, Generally

State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding:

¶42      Where a valid order or judgment is a necessary condition for one of the elements of a crime, a collateral attack upon the order or judgment can negate an element of the crime if the order or judgment is void. See State v.

Read full article >

Common Law Defenses – Laches Bar

State ex rel Marvin Coleman v. McCaughtry, 2006 WI 49, reversing and remandingsummary order of court of appeals
For Coleman: Brian Kinstler

Issue/Holding:

¶28      PrihodaSawyerLohr and Schafer all employ a three-element test where the first element is unreasonable delay in bringing the claim and the other two elements apply to the party asserting laches: lack of knowledge (that the claim would be brought) and effect (prejudice).

Read full article >

Common Law Defenses – Collateral Attack on Custody Order, § 948.31

State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding: To attack a custody order as void, in defense against interference with child custody, § 948.31, “the family court would have had to lack subject matter jurisdiction or personal jurisdiction, or Campbell would have had to receive inadequate notice of the divorce proceedings,” ¶46.

Campbell argued that the custody order was procured by fraud,

Read full article >

Common Law defenses – Collateral Attack on Element of Custody Order, § 948.31, as Procured by Fraud

State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether a § 948.31 defendant is entitled to raise a common-law privilege defense against the element of “legal custody” by collaterally attacking the court’s custody order as having been procured by fraud.

Holding:

¶56      There are good reasons not to recognize a common law affirmative defense of fraud to interference with child custody.¶57      One species of affirmative defense——exemplified by self-defense and the now-abrogated privilege to resist unlawful arrest——that courts recognize arises where a person is faced with the difficult decision whether to commit a crime or suffer an injury not otherwise susceptible to effective redress.  

Read full article >