On Point

State v. Timothy D. Moseley, 2011AP892-CR, District 1, 5/1/12 

court of appeals decision (not recommended for publication); for Moseley: Michael J. Steinle; case activity

Moseley’s contention, that he qualified his written consent to search with an oral limitation, was rejected by the trial court as a matter of credibility; that finding of fact is now affirmed:

¶18      The trial court is in the best position to judge the credibility of witnesses.  

State v. Thaying Lor, 2011AP2019-CR, District 1, 5/1/12

court of appeals decision (not recommended for publication); for Lor: Benjamin F. Gallagher; case activity

Effective Assistance of Counsel 

Counsel did not provide ineffective representation in the following respects:

• Failure to timely file motion seeking admission of complainant’s prior untruthful allegation of sexual assault. However, Lor did not provide, including in his postconviction motion,

State v. Allen K. Umentum, 2011AP2622-CR. District 3, 5/1/12

court of appeals decision (1-judge, not for publication); for Umentum: Roberta A. Heckes; case activity

Under a local, Brown County “standing order,” all in-custody defendants appearing at jury trial were required, without particularized demonstration of need, to wear a non-visible stun belt. The courthouse had no screening checkpoints, and any defendant was entitled to relief from the order “for good cause shown.”

Trempealeau County v. Charles O., 2011AP2794, District 3, 5/1/12

court of appeals decision (1-judge, not for publication); for Charles O.: William E. Schmaal, SPD, Madison Appellate; case activity

The court rejects Charles O.’s argument that the evidence fell short of the “fifth-standard” showing of dangerousness, § 51.20(1)(a)2.e., State v. Dennis H., 2002 WI 104, ¶14, 255 Wis. 2d 359, 647 N.W.2d 851:

¶11      When reviewing the sufficiency of the evidence,

State v. Elizabeth M., 2012AP454, District 1, 5/1/12

court of appeals decision (1-judge, not for publication); for Elizabeth M.: Jeffrey W. Jensen; case activity

The court rejects Elizabeth M.’s argument that the trial court erroneously exercised discretion in favor of terminating of parental rights:

¶30      Basically, Elizabeth M. argues for a second chance.  She testified that she now wants to raise John G., even though she:  (1) is still on probation;

court of appeals certification, review granted, 6/13/12; for Leilani Neumann: Byron C. Lichstein; case activity; for Dale Neumann: Stephen L. Miller; case activity

Reckless Homicide and “Faith Healing” as Substitute for Medical Treatment

Convicted of reckless homicide, § 940.06(1), in the death of their daughter for failing to obtain medical treatment, the Neumanns raise various issues relating to interplay with the right to rely on prayer as treatment,

Question Presented (from cert petition): 

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation. The question presented is whether Padilla applies to persons whose convictions became final before its announcement.

State v. Jonathan Phillips, 2010AP1490, District 4, 4/26/12

court of appeals decision (not recommended for publication); for Phillips: Steven D. Grunder, SPD, Madison Appellate; case activity; originally recommended for publication, changed per order 5/1/12

Although admittedly “inconsistent” in the way it defines “mental disorder,” when read “as a whole,” the pattern jury instruction for ch. 980 commitments (Wis JI—Criminal 2502) adequately conveys the required nexus between mental disorder and serious difficulty controlling behavior.

court of appeals decision; for Beamon: Donna L. Hintze, SPD, Madison Appellate; case activity; prior post

Elements, Fleeing, § 346.04(3) – Instructions – Sufficiency of Proof – Harmless Error 

Issues (from Beamon’s Petition for Review):

Is a jury instruction which describes the factual theory alleged to satisfy an element legally erroneous?

In a criminal case, are the instructions given the jury the law of the case against which the sufficiency of the evidence must be measured or,

court of appeals publication orders, 4/25/12

On Point posts from this list:

2012 WI App 42 La Crosse Tribune v. Circuit Court for La Crosse County

2012 WI App 46 State v. Lamont L. Travis

2012 WI App 47 State v. Matthew R. Steffes

2012 WI App 48 State v. Dennis R. Thiel

2012 WI App 49 Village of McFarland v.