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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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Escape, § 946.42 – “Actual Custody” – Effect of Stay of Probation Confinement Order
State v. Rick L. Edwards, 2003 WI App 221, PFR filed 10/24/03 For Edwards: Margaret A. Maroney, SPD, Madison Appellate Issue/Holding: A probationer whose order of jail confinement has been stayed during a period of hospitalization is not in custody for § 946.42 purposes and therefore may not be charged with escape for leaving the […]
Sexual Contact, § 948.02(2) — Definition of “Chest,” § 939.22(19) — Applicability to Male Victim
State v. Michael J. Forster, 2003 WI App 29, PFR filed 1/31/03 For Forster: Martha K. Askins, SPD, Madison Appellate Issue: Whether designation of “breast,” in § 939.22(19), applies to males as well females, so that touching of a male breast may constitute sexual assault. Holding: The statute plainly applies to the “intimate parts,” including “chest,” “of a […]
Sexual Assault, § 948.02(2) — Sufficiency of Evidence
State v. Michael J. Forster, 2003 WI App 29, PFR filed 1/31/03 For Forster: Martha K. Askins, SPD, Madison Appellate Issue/Holding: The male victim’s testimony that the defendant “rubbed his nipple in a circular motion, while kissing [his] neck, for approximately twenty-five minutes,” established that the defendant touched an intimate part (chest) with illicit intent. ¶¶19-20.
§ 948.025, Repeated Sexual Assault — Remedy for Violation of Multiple Charging Proscription
State v. John S. Cooper, 2003 WI App 227, PFR filed 11/14/03 For Cooper: John A. Birdsall Issue: Whether the trial court properly remedied violation of § 948.025(3) (impermissible to charge in same action both repeated-acts and individual acts of sexual assault involving same victim in same time period) by dismissing the repeated-acts charge instead […]
§ 948.02(2), 2nd-Degree Sexual Assault (by Contact) — Elements – “Intentional” (Vs. “Knowing”) Contact
State v. John A. Jipson, 2003 WI App 222 For Jipson: Martha K. Askins, SPD, Madison Appellate Issue/Holding: The specifically prohibited “purpose” of sexual contact (i.e., sexual degradation, humiliation, arousal, or gratification) is not listed in § 948.02(2), but is nonetheless defined in § 948.01(5) as an element. ¶9 and id., n. 4, following State […]
Due Process – Scienter, § 948.12
State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03 For Schaefer: Jefren E. Olsen, SPD, Madison Appellate Issue/Holding: ¶32. Schaefer claims that by allowing conviction for possession of child pornography when a defendant “reasonably should know” that the child depicted is under eighteen years of age, Wis. Stat. § 948.12 omits a scienter […]
§ 948.02(2), Attempted Sexual Assault (Intercourse); § 948.07 (Attempted) Enticement – Initiated Over Internet – First Amendment
State v. James F. Brienzo, 2003 WI App 203, PFR filed 10/10/03 For Brienzo: Jerome F. Buting Issue/Holding: Prosecution for attempted sexual assault of a child initiated over the Internet isn’t barred by the first amendment. ¶¶23-24, applying State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287 (permitting prosecution for enticement). Same […]
Multiplicity: § 948.12, Child Pornography – Photographs Stored on Disk
State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03 For Schaefer: Jefren E. Olsen, SPD, Madison Appellate Issue/Holding: Individual pornographic photos, all found on the same storage disk, support individual charges, it being “reasonable to assume that the existence of multiple files on the Zip disk demonstrates that Schaefer made a new decision to […]
Arrest — Probable Cause — Specific Examples: Homicide — Husband’s Involvement in Wife’s Disappearance
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03 For Kutz: T. Christopher Kelly Issue/Holding: The police had probable cause to arrest Kutz for involvement in his wife’s disappearance where: there was reason to believe that she had suffered serious harm given that she hadn’t returned to her mother’s house as expected, her family […]
Arrest — Probable Cause — OWI
State v. Cara A. Erickson, 2003 WI App 43 Issue/Holding: The following facts established probable cause to arrest, hence to take a warrantless blood draw, for OWI: ¶15. In this case, the officer knew the following information when he ordered the blood draw. At about 5:40 a.m. on August 27, 2000, less than two hours […]
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On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.