On Point: 3. Particular crimes

State v. Kelly James Kloss, 2019 WI App 13, petition and cross petition for review granted, 6/11/19, petitions dismissed as improvidently granted, 3/6/20; case activity (including briefs)

Bad news first: Addressing an issue of first impression, the court of appeals held that Wisconsin now recognizes the crime of solicitation of 1st degree reckless injury. Good news: Solicitation of 1st degree recklessly endangering safety is a lesser included offense of solicitation of 1st degree reckless injury, which means that convicting a defendant of both violates multiplicity principles and Double Jeopardy. Defense wins!

State v. Heather L. Steinhardt, 2017 WI 62, 6/21/17, affirming a per curiam court of appeals opinion; case activity (including briefs)

Steinhardt led her 12 year old daughter to her bedroom so that her husband (the child’s step father) could have sex with her. In fact, Steinhardt sat on the bed while the assault occurred. The majority holds that leading the daughter to the assault and sitting on the bed during the assault are 2 different acts supporting 3 different crimes and punishments. Justice Abrahamson (joined by A.W. Bradley) calls Steinhardt’s crimes “revolting and detestable” but insists the “constitutional guarantees against double jeopardy protect us all, even Heather Steinhardt.” Dissent ¶47.

State v. Sambath Pal, 2017 WI 44, 4/28/17, affirming a court of appeals summary disposition, 2015AP1782-CR; case activity (including briefs)

Driver crashes into group of motorcyclists, kills one, mortally injures a second, flees the scene, and eventually pleads guilty to 2 counts of hit and run resulting in death contrary to §346.67(1). He’s sentenced to 2 consecutive terms of 10 years IC and 10 years ES. Questions Presented: Did driver commit 1 offense or 2? And is his sentence unduly harsh?

Review of a court of appeals summary disposition; case activity (including briefs); petition for review

Issues (composed by On Point)

(1)  Could the defendant be convicted of two counts of hit and run with death resulting for a single act of leaving the scene of an accident that caused two deaths?

(2) Is the defendant’s sentence unduly harsh?

Review of an unpublished per curiam court of appeals decision; case activity (including briefs); petition for review

Issues (composed by On Point)

(1)  Was Steinhardt’s right to be free from double jeopardy violated when she was convicted of both party to the crime of First Degree Child Sexual Assault in violation of § 948.02(1)(e) and Failure to Protect a Child from Sexual Assault in violation of § 948.02(3)?

(2)  Did Steinhardt forfeit her right to raise the double jeopardy issue by pleading no contest to the charges?

(3)  Did Steinhardt’s postconviction motion, which alleged trial counsel was ineffective for failing to advise her about the double jeopardy issue, sufficiently allege that she was prejudiced by trial counsel’s failure?

State v. Jama I. Jama, 2014AP2432-CR, District 4, 2/25/16 (not recommended for publication); case activity (including briefs)

Jama was convicted of both second degree sexual assault of a person too intoxicated to give consent, § 940.225(2)(cm), and third degree sexual assault (sexual intercourse or contact without consent), § 940.225(3), for the same act. The court of appeals rejects Jama’s claim that he can’t be convicted of both counts.

Demetrius M. Boyd v. Gary A. Boughton, 7th Circuit Court of Appeals No. 14-2809, 8/14/15

Boyd challenged his convictions in state court for both bail jumping and the substantive offense on which the bail jumping charges were premised, arguing that convictions for both crimes violate the Double Jeopardy Clause. That challenge having failed, he sought federal habeas relief. The Seventh Circuit holds that, in the absence of clearly established federal law holding that the substantive offense is a lesser-included offense of the bail jumping and that Boyd could not therefore be convicted of both offenses, the state courts reasonably concluded that Boyd’s convictions for both offenses doesn’t violate double jeopardy.

State v. Brian S. Kempainen, 2015 WI 32, 3/19/15, affirming a published court of appeals decision; opinion by Justice Gableman; case activity (including briefs)

The supreme court unanimously holds that when determining whether the accusations in a criminal complaint are specific enough to give a defendant fair notice of the charges and an opportunity to defend against them, a court must consider the totality of the circumstances, and not just the specific set or subset of factors listed in State v. Fawcett, 145 Wis. 2d 244, 426 N.W.2d 91 (Ct. App. 1981).

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 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.