On Point blog, page 1 of 16
COA: Defendant not entitled to jury instruction on necessity at OWI trial because turning on vehicle was not only means to prevent harm from exposure to cold.
City of Kenosha v. Jackson Rathod, 2024AP2307, 10/28/26, District II (not eligible for publication); case activity
The COA affirmed the defendant’s conviction for operating a motor vehicle while intoxicated. It held that the defendant was not entitled to have the jury instructed on necessity because he had an alternative means of staying warm after drinking alcohol at a winter house party, other than returning to his car to turn on the heat.
Defense Win: COA clarifies defense of others doctrine and holds erroneous instructions merit new trial
State v. Tommy Jay Cross, 2023AP2013-CR, 11/4/25, District III (recommended for publication); case activity
In an opinion that might remind some readers of their first year of law school, COA outlines the basic principles of Wisconsin’s self-defense doctrine and holds that the jury was given inaccurate instructions on the subject as it pertains to defense of others.
In fact-intensive TPR appeal, COA rejects numerous creative legal arguments and affirms
State of Wisconsin v. D.R.-R.D.J. 2024AP2406, 10/8/25, District II (ineligible for publication); case activity
In an imposingly lengthy opinion involving an interesting choice of counsel claim (among many others), COA rejects arguments that “Diane” was denied her rights to counsel of choice and to the effective assistance of counsel and affirms.
Seventh Circuit rejects habeas appeal focusing on “search for the truth” jury instruction
Michael Williams v. Michael Meisner, No. 23-3268, 6/16/25
In a case that likely signals the end of a long legal battle over a Wisconsin jury instruction telling jurors to “search for the truth,” the Seventh Circuit holds that the petitioner is not entitled to habeas relief.
State adequately proved that bar parking lot was a “premises held out to the public for use of their motor vehicles”
State v. David A. Schultz, 2022AP1622, 2/13/24, District III (not recommended for publication); case activity
Schultz’s technical challenge to this OWI conviction fails, as COA finds sufficient evidence that the bar parking lot in which Schultz operated his motor vehicle was covered by the OWI statute.
COA rejects multiple challenges to first-offense OWI and refusal convictions and affirms
City of Whitewater v. Douglas E. Kosch, 2022AP800, District II, 9/13/23, 1-judge decision ineligible for publication; case activity (including briefs)
Although Kosch throws the kitchen sink at his OWI and refusal convictions, COA methodically works through his myriad challenges on a path toward affirmance.
SCOW reverses grant of new trial by deferring to circuit court’s exercise of discretion when denying motion for mistrial
State v. Eric J. Debrow, 2023 WI 54, 6/23/23, reversing an unpublished court of appeals decision; case activity (including briefs)
In yet another reversal of a defense win, SCOW defers to the circuit court’s decision denying a motion for mistrial but slightly muddies the waters as to the proper legal analysis when assessing mistrial claims on appeal.
SCOW to address mistrials and curative instructions
State v. Eric J. Debrow, 2021AP1732-CR, petition for review of an unpublished COA opinion granted 12/15/22, reversed, 2023 WI 54; case activity (including PFR, Response, and COA briefs)
Issue presented (from the State’s petition):
Did the court of appeals apply the proper legal standard to its review of the circuit court’s decision to deny Debrow’s motion for a mistrial when it considered the adequacy of the curative instruction given by the circuit court and, if not, did the circuit court properly exercise its discretion in denying the motion for a mistrial?
COA rejects challenges to jury instructions: one good route to conviction is enough
State v. Dreama F. Harvey, 2022 WI App 60; case activity (including briefs)
A jury convicted Harvey of reckless homicide by the delivery of heroin. On appeal, she notes that the jury instructions would have permitted conviction on the theory that she either aided and abetted another supplier or was part of the chain of distribution–that is, that she supplied the person who actually sold the heroin to the decedent. But there was no evidence she’d done any of those things: if she’d committed the crime, all the evidence showed that it was by selling the heroin directly to the buyer, who ingested it and died. The verdict forms were general: the jury was asked only to determine guilt or innocence, not whether Harvey was the principal, an aider, or a higher-up in the chain. So, Harvey says, we can’t know whether the jury convicted her based on one of the other two theories for which there was no evidence, and her conviction must be reversed.
Exclusion of evidence didn’t violate defendant’s right to present defense; instruction on self defense adequately instructed the jury
State v. Sergio Moises Ochoa, 2022 WI App 35; case activity (including briefs)
Ochoa, charged with two counts of first degree intentional homicide, claimed self defense. The court of appeals rejects his claims that the circuit court violated his right to present his defense by excluding certain evidence he wanted to present. The court also rejects his claim that the circuit court erred by refusing to modify the pattern jury instruction applicable to his case.