On Point

State v. Albert J. Chagnon, 2015 WI App 66; case activity (including briefs)

Under § 948.14, no registered sex offender may intentionally “capture a representation” of a minor without consent of the minor’s parent or guardian. The phrase “captures a representation” is defined in § 942.09(1)(a) to mean “takes a photograph, makes a motion picture, videotape, or other visual representation, or records or stores in any medium data that represents a visual image.” The court of appeals concludes the phrase “captures a representation” cannot reasonably be construed to apply to Chagnon’s act of cutting pictures of minors from magazines and newspapers, pasting them into a notebook, and adorning the pictures with graphic sexual comments.

Dane County DHS v. D.M., 2014AP2291, District 4, 7/30/15 (one-judge decision; ineligible for publication); case activity

Trial counsel wasn’t ineffective for arguing § 48.415(6) is unconstitutional as applied to D.M., as she fails to demonstrate that the County made it impossible for her to satisfy the conditions for return of her child, D.L.

Oneida County v. Randall J. Busarow, 2014AP2766, District 3, 7/28/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Though there wasn’t direct evidence of exactly when Busarow drove and whether he was intoxicated at that time, the state need not prove the elements of an offense only by direct evidence; reasonable inferences from the evidence may suffice. Bautista v. State, 53 Wis. 2d 218, 223, 191 N.W.2d 725 (1971). The evidence in this case supported the reasonable inferences that Busarow was intoxicated when he drove and that he drove within three hours of the blood test.

State v. Tammy R. Fullmer, 2015AP640-CR, District 4, 7/30/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Trial counsel was deficient for failing to effectively impeach the officer’s testimony that Fullmer failed to stop in front of a stop line because the intersection in question didn’t have a stop line; however, there were multiple other observations the officer made that justified the traffic stop even in the absence of the stop line violation (e.g., extremely slow driving, driving down the middle of a two lane road, weaving in her lane), so Fullmer wasn’t prejudiced. (¶¶4-7, 11, 14).

State v. Steven Ray Gaddis, 2015AP130-CR, District 1, 7/28/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Even the sentencing judge admitted his sentencing explanation “could have been more extensive” (¶10). But, hey, it was good enough for government work.

State v. Ali H., 2015AP41, District 1, 7/28/15 (one-judge decision; ineligible for publication); case activity

Though the juvenile court judge “was perhaps imprecise with its language,” the court of appeals concludes the judge did not erroneously apply adult sentencing considerations of punishment and deterrence when it decided to order Ali placed at Lincoln Hills.

State v. David D. Hartl, Jr., 2014AP2921-CR, District 3, 7/28/15 (one-judge decision; ineligible for publication); case activity (including respondent’s brief)

In this OWI case, trial counsel moved to exclude reference to the 911 call about a possible drunk driver, which is what led to police to look for Hartl’s car and ultimately stop him. The state stipulated to excluding this evidence. But on cross-examination of the officer, trial counsel asked questions that led to the officer referring to the call. (¶¶4-5). Hartl argues his lawyer was ineffective for doing this. (¶¶12-14). While it would be “difficult to conclude” trial counsel wasn’t deficient (¶16), it is easy to conclude there was no prejudice.

Derrick P. v. Anita P., 2014AP2570 & 2014AP2571, District 4, 7/23/15 (one-judge decision; ineligible for publication); case activity

Anita P. raised equal protection and due process challenges to § 48.415(4)(a) for the first time on appeal, and the court of appeals finds it’s not in the interest of justice to decide the challenges. We describe the issues in more detail below, since practitioners handling TPR cases arising out of placement denials in family court may want to consider raising them (in the trial court first, of course).

Dear readers: On Point will be in “maintenance mode” for the new few weeks so that we can do some updating and redesigning. We’ll let you know when it is back up. Don’t worry. You won’t miss anything. Posts on cases issued during the hiatus will be waiting for you when On Point returns.  See […]

Richard Brown, one of the original judges elected to the Wisconsin Court of Appeals in 1978, retires this week. Thirty-seven years of judging translates into some pretty impressive statistics. According to a Westlaw Reference Attorney, Judge Brown appears in their database as the member of a panel on 6,511 opinions (and that doesn’t count one-judge opinions). The court of appeals’ database (which only goes back to 1992) shows him associated with a staggering 9,393 written decisions. And staff attorney tallies show that he authored 965 three-judge opinions and 617 one-judge opinions since 1982. No one has dared to count the number of appellate briefs he has read. Because he is the longest-serving judge on the court of appeals (and started at age 32), it seems doubtful that colleagues will break his records any time soon.