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On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.
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Attempted Theft from Person, § 943.20(3)(e) – Sufficiency of Evidence
State v. Cleveland R. Tidwell, 2009 WI App 153, PFR filed 10/9/09 For Cleveland: Jeremy C. Perri, SPD, Milwaukee Appellate Issue/Holding: Evidence held sufficient to sustain conviction for attempted theft from person, where Tidwell demanded money from a restaurant clerk, hit his fist on cash register and fax machine next to cash register, and tried […]
Double Jeopardy – Multiplicity: Bail Jumping – Single Bond, Same Condition but Different Cases
State v. Dana Eaglefeathers, 2009 WI App 2, PFR filed 1/9/09 For Eaglefeathers: Patricia A. Fitzgerald Issue/Holding: Violation of the same condition in a single bond applicable to two different cases (failure to appear at both preliminary hearings scheduled for the same time and court) supports multiple bail jumping charges: ¶8 The parties do not dispute that […]
Obstructing, § 946.41 – “Incomplete” Instruction, “Lawful Authority” – Harmless Error
State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion For Ferguson: Jefren E. Olsen, SPD, Madison Appellate Issue/Holding: Where it was clear not only that Ferguson obstructed the police outsideher apartment but also that the jury so found, arguable omission of a “complete” instruction on whether the police acted with lawful authority in entering her apartment was […]
Obstructing, § 946.41 – “Lawful Authority” – Jury Instruction, Generally
State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion For Ferguson: Jefren E. Olsen, SPD, Madison Appellate Issue/Holding: ¶31 Because “lawful authority” is an element of obstruction under Wis. Stat. § 946.41(1), if the jury was not properly instructed on the meaning of “lawful authority,” given the facts presented to the jury, the circuit court erred.See Harvey, […]
Disorderly Conduct, § 947.01 – Conviction as “Crime of Domestic Violence” Disqualifying Gun Possession
Joseph E. Koll, Jr v. Dept of Justice, 2009 WI App 74, PFR filed 4/29/09 For Koll: Alexander L. Ullenberg Issue: Whether Koll’s conviction of so-called “non-domestic” disorderly conduct was for a misdemeanor crime of domestic violence as defined 18 U.S.C. §921(a)(33)(A), so as to preclude him from obtaining a handgun. Holding: The federal Gun Control Act bars […]
Sexual Assault of Child, § 948.02 – Unanimity – Separate Counts, Failure to Tie Particular Act to Particular Count
State v. Christopher F. Becker, 2009 WI App 59, PFR filed 5/8/09 For Becker: Jeremy C. Perri, SPD, Milwaukee Appellate Issue/Holding: Waived objection to jury instruction “which failed to tie a particular act of sexual contact to a particular count” on a 2-count information of sexual assault of a child, not prejudicial (State v. Marcum, 166 Wis. […]
Possession of Child Pornography, § 948.12(1m) – Sufficiency of Evidence – Full Nudity not Required
State v. James F. Lala, 2009 WI App 137, PFR filed 9/1/09 For Lala: Ellen Henak, SPD, Milwaukee Appellate Issue/Holding: ¶11 Sexually explicit conduct as defined in Wis. Stat. § 948.01(7)(e) includes actual or simulated “lewd exhibition of intimate parts.” The term “lewd,” however, is not statutorily defined, nor has a single definition been established […]
Community Caretaker – Test – Officer’s Subjective Intent
State v. Todd Lee Kramer, 2009 WI 14, affirming 2008 WI App 62 For Kramer: Stephen J. Eisenberg, Marsha M. Lysen Issue/Holding: ¶25 Kramer argues that the “totally divorced” language from Cady means that the officer must have ruled out any possibility of criminal activity before the community caretaker function is bona fide. The State, on the other hand, […]
Community Caretaker – Test – Generally
State v. Todd Lee Kramer, 2009 WI 14, affirming 2008 WI App 62 For Kramer: Stephen J. Eisenberg, Marsha M. Lysen Issue/Holding: The 3-factor test for determining validity of community caretaker intervention, as articulated by State v. Anderson, 142 Wis. 2d 162, 167, 417 N.W.2d 411 (Ct. App. 1987), and the lead opinion of State v. Kelsey C.R., 2001 WI […]
Community Caretaker – Investigation of Stopped Car Late at Night
State v. Lance F. Truax, 2009 WI App 60, PFR filed 5/4/09 For Truax: Kiley Zellner Issue/Holding: Largely on community caretaker rationale of State v. Todd Lee Kramer, 2009 WI 14, the court upholds seizure of car observed pulling over on the shoulder late at night. The cop didn’t suspect any traffic violation, but simply thought that a […]
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