On Point blog, page 5 of 8
First Amendment – Child Enticement Initiated Over Internet
State v. Brian D. Robins, 2002 WI 65, on bypass
For Robins: Craig W. Albee
Issue: Whether prosecution for child enticement initiated over the Internet violates the first amendment.
Holding: The first amendment doesn’t extend to speech that is incidental to or part of the criminal course of conduct.
¶43. The child enticement statute regulates conduct, not speech. The statute protects against the social evil and grave threat presented by those who lure or attempt to lure children into secluded places,
§ 939.32, Attempt – In General
State v. Brian D. Robins, 2002 WI 65, on bypass
For Robins: Craig W. Albee
Issue/Holding:
¶37. The crime of attempt is complete when the intent to commit the underlying crime is coupled with sufficient acts to demonstrate the improbability of free will desistance; the actual intervention of an extraneous factor is not a “third element” of the crime of attempt, although it is often part of the proof.
Attempted Child Enticement, §§ 939.32, 948.07(1) — Internet Sting Operation
State v. Brian D. Robins, 2002 WI 65, on bypass
For Robins: Craig W. Albee
Issue: Whether attempted child enticement is a prosecutable offense, where the “child victim” was in fact a government agent posing as a child as part of a government sting operation.
Holding: That the “victim” was fictitious is the extraneous factor intervening to make the crime attempted rather than completed enticement.
§ 940.05(2), Intentional Homicide — Imperfect Self-Defense
State v. Debra Ann Head, 2002 WI 99, reversing 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9
For Head: John D. Hyland, Marcus J. Berghan
Issue/Holding:
¶103. Based on the plain language of Wis. Stat. § 940.05(2), supported by the legislative history and articulated public policy behind the statute, we conclude that when imperfect self-defense is placed in issue by the trial evidence,
§ 947.01, Disorderly Conduct — Private Mailings
State v. Glenn F. Schwebke, 2002 WI 55, affirming 2001 WI App 99, 242 Wis. 2d 585, 627 N.W.2d 213
For Schwebke: Keith A. Findley, UW Law School
Issue: Whether private, anonymous mailings to several individuals may support prosecution for disorderly conduct.
Holding:
¶26… (T)he plain language of the statute does not specifically require a ‘public’ disturbance. Instead,
§ 948.11(2) — Exposing Minors to Harmful Materials — Constitutionality
State v. John T. Trochinski, 2002 WI 56, affirming unpublished decision
For Trochinski: James L. Fullin, SPD, Madison Appellate
Issue: Whether § 948.11(2) is unconstitutional because it doesn’t require proof of knowledge of the age of the person to whom harmful materials are displayed (minority being the sole differentiating factor between noncriminal/protected and criminal conduct.
Holding:
¶39. We conclude that the constitutionality of Wis.
Double Jeopardy – Multiplicity: Child Pornography – Possession of Materials Stored on Disks
State v. James E. Multaler, 2002 WI 35, affirming 2001 WI App 14, 246 Wis. 2d 752, 632 N.W.2d 89
For Multaler: Jeffrey W. Jensen
Issue/Holding:
¶58. Applying these standards, we agree with the court of appeals that the 28 counts to which Multaler pled were not identical in fact. Although some of the downloaded image files contained multiple images,
Consent — Acquiescence — Entry to Residence
State v. John Tomlinson, Jr., 2002 WI 91, affirming 2002 WI App 212, 247 Wis. 2d 682, 635 N.W.2d 201
For Tomlinson: John J. Gray
Issue: Whether the actions of the defendant’s minor daughter, in opening the door to the police and then walking back into the house when they asked for permission to enter, amounted consent for the police to enter.
Consent — Authority — Minor Child — Entry of Residence
State v. John Tomlinson, Jr., 2002 WI 91, affirming 2002 WI App 212, 247 Wis. 2d 682, 635 N.W.2d 201
For Tomlinson: John J. Gray
Issue: Whether the police had consent from a minor to enter the defendant’s home in order to arrest him.
Holding: Warrantless entry of a home to effectuate an arrest requires probable cause and exigent circumstances or consent.
Arrest — Search Incident to Arrest — Warrantless Blood Test — Person Offers to Take Breath Test
State v. Jay D. Krajewski, 2002 WI 97, affirming unpublished decision of court of appeals
For Krawjewski: Christopher A. Mutschler
Issue/Holding:
¶3. … (A) warrantless nonconsensual blood draw from a person arrested on probable cause for a drunk driving offense is constitutional based on the exigent circumstances exception to the warrant requirement of the Fourth Amendment, even if the person offers to submit to a chemical test other than the blood test chosen by law enforcement,