On Point: F. Instructions

State v. Aaron Deal, 2010AP1804-CR, District 1, 9/20/11 

court of appeals decision (not recommended for publication); for Deal: James A. Rebholz; case activity

Counsel’s refusal to argue to the jury that it should return a guilty verdict on felony murder, submitted as a lesser offense option of first-degree intentional homicide, wasn’t deficient in light of the defendant’s insistence on an all-or-nothing strategy.

¶8        At the Machner hearing,

State v. Carl Mills, 2010AP1746-CR, District 1, 9/7/11

court of appeals decision (not recommended for publication); for Mills: Randall E. Paulson, SPD, Milwaukee Appellate; case activity

Trail counsel was not ineffective for failing to object to jury instructions and verdict forms with respect to unanimity on multiple counts of sexual assault of a single victim, even though the verdict forms did not specify the types of sexual intercourse involved; 

State v. Courtney C. Beamon, 2011 WI App 131 (recommended for publication); for Beamon: Donna L. Hintze, SPD, Madison Appellate; case activity; petition for review granted, 4/25/12

Fleeing, § 346.04(3) – Elements 

¶4        ….  In State v. Sterzinger, 2002 WI App 171, ¶9, 256 Wis. 2d 925, 649 N.W.2d 677, this court separated the language of § 346.04(3) into segments:  (1) No operator of a vehicle,

State v. Joseph Gayden, 2010AP2360-CR,District 1, 8/30/11

court of appeals decision (not recommended for publication); for Gayden: Matthew S. Pinix; case activity

The difference between Wis JI-Criminal 800 and 805 is that the latter limits the defendant’s intentional use of force intended or likely to cause death or great bodily harm to reasonable belief that the force is necessary to prevent imminent death or great bodily harm.

County of Ozaukee v. David W. Berend, 2011AP291, District 2, 8/24/11

court of appeals decision (1-judge, not for publication); for Berend: Walter Arthur Piel, Jr.; case activity

Breathalyzer test results are admissible (and presumptively accurate) in OWI and PAC proceedings if “the sample was taken within 3 hours after the event to be proved,” § 885.235(1g). Berend’s test was administered at 11:07, and he said he’d stopped drinking at 8:00.

State v. Paschall Lee Sanders, 2011 WI App 125 (recommended for publication); for Sanders: Ellen Henak, SPD, Milwaukee Appellate; case activity

The definitions of “mental disorder” in since-amended pattern instruction Wis JI—Criminal 2502 (2009), though concededly contradictory, didn’t prevent from being tried the issue of whether Sanders qualified for commitment as a sexually violent person:

¶14      As we have seen, two sentences in what the circuit court told the jury are contradictory:

(1)   “Mental disorder means a condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence and causes serious difficulty in controlling behavior.”  (Emphasis added.)

(2)   “Not all persons with a mental disorder are predisposed to commit sexually violent offenses or have serious difficulty in controlling behavior.”

As noted earlier,

State v. Esteban M. Gonzalez, 2011 WI 63, reversing, 2010 WI App 104; for Gonzalez: Frank J. Schiro, Kristin Anne Hodorowski; case activity

Gonzalez has shown a reasonable likelihood that the jury instructions relived the State of its burden to prove the element that he knowingly exhibited harmful material to a child.

The facts are essentially undisputed: Gonzalez watched pornography while care-taking his 3-year-old daughter,

State v. Roshawn Smith, 2010AP1192-CR, District 3, 5/26/11, aff’d and rev’d, 2012 WI 91

court of appeals decision (not recommended for publication), aff’d in part, rev’d in part, 2012 WI 91; for Smith: William E. Schmaal, SPD, Madison Appellate; case activity

Evidence held sufficient to support guilty verdict, § 961.41(1m)(h)5., ptac: after agreeing to accept packages (which turned out to contained marijuana),

State v. Jenny L. Nowak, 2010AP1499-CR, District 3, 5/17/11

court of appeals decision (1-judge, not for publication); for Nowak: Keith F. Ellison; case activity

Warrantless entry into Nowak’s garage was justified under hot pursuit doctrine, given “probable cause to believe Nowak committed a jailable offense—specifically, resisting by failure to stop,” § 346.17(2t) (punishable by 9 months imprisonment), ¶15. (Citing, State v. Richter,

State v. Donovan M. Burris, 2011 WI 32, reversing unpublished decision; for Burris: Byron C. Lichstein; case activity

Utter Disregard for Life – After-the-Fact Conduct

¶7   We conclude that, in an utter disregard analysis, a defendant’s conduct is not, as a matter of law, assigned more or less weight whether the conduct occurred before, during, or after the crime.  We hold that,