On Point blog, page 3 of 7
State v. Heather L. Steinhardt, 2015AP993-CR, petition for review granted 10/11/2016
Review of an unpublished per curiam court of appeals decision; case activity (including briefs); petition for review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?
Dismissal of felon-in-possession charge doesn’t bar new charge under different provision of § 941.29
State v. Joshua Java Berry, 2016 WI App 40; case activity (including briefs)
Berry was found guilty at a bench trial of being a felon in possession of a firearm under § 941.29(2)(a) (2013-14). Before sentencing, Berry’s lawyer figured out that Berry’s prior conviction was for a misdemeanor, not a felony. The court vacated the felon-in-possession conviction and dismissed the charge with prejudice, and the state immediately recharged him under § 941.29(2)(b) (2013-14) because Berry had a prior delinquency adjudication. (¶¶2-6). Recharging him doesn’t violate the prohibition against double jeopardy.
Multiple counts for single sexual assault were neither “inconsistent” nor multiplicitous
State v. Jama I. Jama, 2014AP2432-CR, District 4, 2/25/16 (not recommended for publication); case activity (including briefs)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.
No safe harbors for “mandatory reporter” of child abuse
State v. Trista J. Ziehr, 2015AP994-CR, 1/13/16, District 2 (one-judge opinion, ineligible for publication); case activity, including briefs
There isn’t much case law on Wisconsin’s “mandatory reporter” requirement, and this opinion makes no attempt to fill the gaps. Ziehr ran a daycare center and thus had a mandatory duty to report child abuse to the proper authorities whenever she had reasonable cause to suspect that such abuse had occurred. Wis. Stat. §48.981(2) & (6). A jury convicted her of failing to report abuse by her son. On appeal she argued primarily that: (1) the trial court erroneously instructed the jury; (2) the State’s complaint was duplicitous, and (3) the trial court erroneously admitted “other acts” evidence. She lost on all issues.
Convictions for both bail jumping and an offense underlying the bail jumping don’t violate Double Jeopardy Clause
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.
SCOW: Totality of circumstances determines whether complaint is sufficient to provide defendant adequate notice of accusation
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).
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.
Aggregating 289 thefts as 1 continuous offense then dividing by 8 = no multiplicity violation
State v. Tina M. Jacobsen, 2014 WI App 13; case activity
Jacobsen was charged with 8 offenses for stealing $500,000 from her employer, and she was convicted on 3 counts. The charges were based on 289 individual thefts occurring over 3 years. On appeal she claimed her trial lawyer was ineffective for failing advise her that, and for failing to seek dismissal because, the charges were duplicitous or multiplicitous.
Conspiracy — sufficiency of evidence; propriety of response to jury question; multiplicitousness of conspiracy and solicitation charges. Sentencing — erroneous exercise of discretion in imposing fine
State v. Ronnie L. Thums, 2012AP929-CR, District 4, 7/25/13; court of appeals decision (not recommended for publication); case activity
Sufficiency of evidence of conspiracy
Thums was charged with offering money to Trepanier, a fellow prison inmate, to kill Thums’s ex-wife and others associated with her. (¶2). In response to Trepanier’s questions about how he’d be paid, Thums told Trepanier to burglarize his ex-wife’s mother’s home and then drew a map depicting the location of that home and his ex-wife’s home.