CRIMES AGAINST CHILDREN: ch. 948

Updated: 1/27/10


Sexual Assault -- 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 human being," and therefore applies to both genders. Moreover, in related statutes the legislature's specification of "female" breast in related statutes buttresses an intent that this statute applies to both genders. ¶¶15-17.
¶18. We are satisfied that the plain language of Wis. Stat. § 939.22(19) is meant to include a female and a male breast because each is "the breast ... of a human being" and thereby the touching of a boy's breast constitutes "sexual contact" within the meaning of Wis. Stat. § 948.02(2)
Sexual Assault of Child, § 948.02 – Not Unconstitutionally Overbroad re: “Proper Medical Purpose”
State v. Christopher J. Lesik, 2010 WI App 12, PFR filed 1/7
For Lesik: Anthony Cotton
Issue/Holding: Sexual assault (intercourse) of a child, § 948.02, isn’t unconstitutionally overbroad, against a theory that it criminalizes acts undertaken for “proper medical purpose.” Although the statute is silent with respect to medical conduct, potential overbreadth may be cured through judicial construction and the court therefore “conclude(s) here that ‘sexual intercourse’ as used in the sexual assault of a child statute does not include ‘bona fide medical, health care, and hygiene procedures,’” ¶13.
The court all but says that the issue is controlled by its prior decision under an identically worded statute in State v. Neumann, 179 Wis. 2d 687, 712 n. 14, 508 N.W.2d 54 (Ct. App. 1993), ¶13.
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. 2d 908, 480 N.W.2d 545 (Ct. App. 1992), distinguished):
¶22   … As noted earlier, the Marcum jury returned a combination of verdicts, two acquittals and one guilty, making it impossible to know if all twelve jurors agreed that Marcum committed the same act in the count where there was a guilty verdict. See id. at 920. …

¶23   Unlike the defendant in Marcum, Becker was not prejudiced by his counsel’s failure to make a timely objection to the jury instructions, and thus does not prevail on this claim. See id. at 924. Unlike the Marcum jury, the jury here did not return a combination of acquittal and guilty verdicts; rather, it convicted Becker on both counts in question, returning two verdicts of guilty. See id. at 920. This eliminates the risk that the jury was not unanimous and, thus, does not give rise to prejudice by offending the unanimous jury requirement. The unanimity of the jury is accurate even if the jurors, as a result of the trial court’s answer to their question, did not all agree on which act should be assigned to which count.

¶24   Moreover, the jury was explicitly told that “[e]ach Count charges a separate crime and you must consider each one separately.” We agree with the State that no reasonable juror could hear that instruction and conclude that he or she could predicate both guilty verdicts on the same act. Thus, when all the jurors agreed that Becker was guilty of both counts, they unanimously agreed beyond a reasonable doubt that he had committed both of the acts of sexual assault charged: the act of touching the victim’s vaginal area and the act of allowing or causing the victim to touch his penis. How each individual juror assigned the two acts between the two counts made no difference; for however each juror assigned them, each juror could not find Becker guilty of both counts without concluding beyond a reasonable doubt that Becker engaged in both acts charged.

One count involved touching the victim’s vagina, the other involved touching the defendant’s penis—the court stresses absence of “any suggestion that Becker touched the victim’s vaginal area two times,” ¶26, in other words, absence of any possibility the jury would have confused the necessary showing. (“Given the jury’s guilty verdicts on both counts, it is inconsequential as to which type of touching was tied to which count by the individual jurors because the jurors unanimously agreed that Becker was guilty beyond a reasonable doubt of both a sexual assault consisting of his touching the victim’s vaginal area and a sexual assault consisting of him allowing or causing the victim to touch his penis,” ¶27.)

The court does, though, recognize the potential for mischief and serves up some stern advice; cold comfort for Becker no doubt, but worth the next litigant’s close attention:

¶10   Before we proceed to our analysis, we make the following edifying clarifications. This entire issue could have been avoided if the State had not put it in play with its sloppy draftsmanship. In the complaint and information, the district attorney did not tie the specific act of Becker touching the victim’s vaginal area to a specific count; nor did he tie the specific act of Becker allowing or causing the victim to touch his penis to a separate, specific count. Where a defendant, such as Becker, is charged with multiple acts violating a criminal statute, the district attorney should tie a specific act to each count in the case. The complaint and/or information should then specify in each count the specific act to which it applies. This should also be done if there are multiple acts occurring at different times or on different days. If the district attorney fails to charge with particularity, defense counsel should bring a motion to make the complaint and/or information more definite and certain. Finally, the trial court is not a lemming and should not overlook sloppy charging by the State. Rather, regardless of the State’s lack of care, the trial court should take great care to not give generic, nonspecific instructions or verdict forms to the jury. Having conveyed, with particularity, how to avoid this problem in the future, we continue with our analysis.
§ 948.02(2) – Elements, in Relation to Defense of Rape By the Child
State v. Monika S. Lackershire, 2007 WI 74, reversing 2005 WI App 265
For Lackershire: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:

¶29      Lackershire's second argument centers on the somewhat unique posture of this case. A violation of Wis. Stat. § 948.02(2) is generally viewed as a strict liability offense. Unlike other sexual assault offenses, where consent of the victim may be a central issue, the consent of the child in a Wis. Stat. § 948.02(2) violation is not relevant. Yet, here, where we have an assertion that it was the defendant who did not consent to the intercourse, that it was she who was raped by the child, then the issue of her consent becomes paramount. If the defendant was raped, the act of having sexual intercourse with a child does not constitute a crime. Wis. Stat. § 948.01(6). …

¶44      We find support for this view in the court of appeals decision in State v. Olson, 2000 WI App 158, 238 Wis. 2d 74, 616 N.W.2d 144. In that case, the defendant, who was 18 years old, was charged with second-degree sexual assault of a child, but claimed that she had in fact been the victim of rape. The circuit court denied the defendant's request for a jury instruction that the state had to prove that the intercourse was the result of the defendant's intentional acts or upon her "affirmative instructions." The defendant was convicted of the charge. > Id., ¶1. The court of appeals reversed the judgment. Noting that there was evidence that the defendant had reported the incident as a sexual assault upon her, it determined that "the act or acts which bring about the sexual intercourse must be, . . . in the words of [Wis. Stat. § 948.01(6)], undertaken 'upon the defendant's instruction.'" Id., ¶13. It therefore determined that under those facts, the defendant was entitled to a jury instruction to that effect. Id.

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.
Sexual Assault -- Sufficiency of Evidence
State v. Gary R. Brunette, 220 Wis. 431, 583 N.W.2d 174 (Ct. App. 1998)
For Brunette: Kevin Schram
Issue/Holding: Seven-year old's testimony that she was touched on or near her "privates" and "potty place" sufficient to sustain conviction for first-degree sexual assault.
Repeated Sexual Assault, § 948.025(1) – Multiplicity: Different Counties
State v. Thomas A. Nommensen, 2007 WI App 224
For Nommensen: Anthony L. O’Malley
Issue/Holding: lthough charges of repeated sexual assault, § 948.025(1) were the same in law, they were different in fact because they :
¶8        Charged offenses are not multiplicitous if the facts are either separate in time or of a significantly different nature. Id. at 749. “The appropriate question is whether these acts allegedly committed … are so significantly different in fact that they may properly be denominated separate crimes although each would furnish a factual underpinning or a substitute legal element for the violation of the same statute.” Id. (citation omitted). Charges are not the same in fact if each requires proof of a fact that the other does not. Blockburger v. U.S., 284 U.S. 299, 304 (1932). Multiple offenses are significantly different in nature if each requires “a new volitional departure in the defendant’s course of conduct.” Anderson, 219 Wis. 2d at 750 (citation omitted).

¶9        Here, it is self-evident that the separate allegations against Nommensen in Washington county and Fond du Lac county are different in fact since the conduct occurred in different locations. From that, it is also self-evident that the conduct had to have occurred at different times. In short, Nommensen could not have been in two different locations at the same time. From that, it also follows that the conduct alleged against Nommensen in Fond du Lac county and the separate conduct alleged in this case each represent “a new volitional departure in [Nommensen’s] course of conduct.” >See id. So, despite the “overlap” period of April 1998, a future fact finder in this case could not convict Nommensen based on the conduct for which he was acquitted in the Fond du Lac county case.

The court also rejects challenges based on venue, ¶¶10-12, and claim/issue preclusion, ¶¶19-20, largely for the same reason: the offenses were not “identical in fact.”
§ 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 of the individual-act charges.
Holding:
¶15. We hold that a court may reverse a conviction on the repeated acts charge under Wis. Stat. § 948.025(1) when the proscription against multiple charges in § 948.025(3) is violated. This remedy is proper even where the repeated acts charge was filed prior to an action for specific acts of sexual assault under Wis. Stat. § 948.02(1). Prosecutors should engage in charging practices that avoid violations of § 948.025(3). When necessary, the trial court should address such violations at the time of consolidation rather than during or after trial. If a violation of § 948.025(3) does arise, the State should choose which charge or charges it will pursue.
(Cooper was originally charged in separate complaints with repeated-act (§ 948.025) and several individual acts (§ 948.02) of sexual assault involving the same child and all in the same time period. They were joined in one action on his motion. Section 948.025(3) bars both repeated- and individual-act charges in the same action, so the consolidation at Cooper’s instance had the effect of triggering this bar, which causes the court to invoke judicial estoppel:
¶14. The State originally brought the general charge in one action and later brought a separate action alleging the more specific charges. Cooper successfully moved to consolidate the separate actions into one. Cooper, by seeking the consolidation, contributed to what he now contends is error because of the statutory prohibition of a general charge under Wis. Stat. § 948.025(1) being joined with specific charges under Wis. Stat. § 948.02(1) in the same action. Because Cooper directly contributed to the error, he cannot benefit from the error. See State v. Gove, 148 Wis. 2d 936, 944, 437 N.W.2d 218 (1989). The doctrine of judicial estoppel prevents a defendant from benefitting (sic) from a manipulation of the judicial system and would present an alternative basis for affirming here. See Salveson v. Douglas County, 2001 WI 100, 37, 245 Wis. 2d 497, 630 N.W.2d 182 (a party cannot be allowed to play "fast and loose with the judicial system").
Estoppel seemingly limits the holding to instances where the defendant “directly contributed to the error.” Note, in this regard, the permissive phrasing – “a court may reverse” the repeated-acts charge; not, must reverse, or may reverse only the repeated-acts charge. And, as the holding explicitly says, when the error is caught in time, the prosecution chooses which of the charges survive(s). That said, estoppel may or may not be proper in this instance. The court of appeals’ recitation of the facts is skimpy, so it isn’t clear if any of the individually charged assaults were the same acts as those underlying the repeated-acts charge. If they were, then there would be an arguable double jeopardy problem stemming from separate convictions; in other words, in that instance the “error” would inhere to the charging decision not the consolidation, and estoppel therefore wouldn’t apply. Whether this is so is impossible to determine from the opinion. Nonetheless, to understand the basis for the court’s position, here’s its characterization of Cooper’s argument on appeal: “the State was ‘stuck with’ the charge of repeated acts under Wis. Stat. § 948.025(1) and that subsequent charges for specific acts of sexual assault were a ‘blatant violation of the clear statutory mandate’ of § 948.025(3).” ¶8.)
§ 948.025, Repeated Sexual Assault -- Constitutionality
State v. William G. Johnson, 2001 WI 52, 243 Wis. 2d 365, 627 N.W.2d 455, on certification
For Johnson: Martha K. Askins, SPD, Madison Appellate
Issue: Whether § 948.025 (repeated sexual assault of a child) is unconstitutional by not requiring unanimous agreement that each predicate act occurred.
Holding: Unanimity is required on the elements of an offense, but generally not the alternate modes of commission unless required by considerations of due process. ¶¶12-13. The predicate acts of assault under § 948.025 are not themselves elements; therefore, under the statute, unanimity is not required regarding these individual assaults. ¶¶15-16. And, because the predicate acts “all involve the sexual abuse of children, crimes of the same or similar nature and level of culpability[,]” due process doesn’t compel unanimity under “an inquiry into the fundamental fairness and rationality of the legislative choice.” ¶¶18-19.
Go To COA Brief
§ 948.02(2), Attempted Sexual Assault (Intercourse) – Crime Initiated Over Internet
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).
Sexual Assault, § 948.02(2) -- Defense of Deceitfully Misleading Defendant as to Minor’s Age
State v. Todd M. Jadowski, 2004 WI 68, on certification
For Jadowski: Richard Hahn
Issue: Whether a minor sexual assault complainant’s intentional misrepresentation of his or her age supports an affirmative defense to § 948.02(2) sexual assault.
Holding:
¶19. The defendant acknowledges that Wis. Stat. §§ 948.02(2), 939.23, and 939.43(2) prohibit an actor from raising mistake about the age of the minor as a defense to the charge of sexual assault.13 The defendant reasons that although these statutes prohibit the defense of mistake, they do not prohibit an actor from raising the affirmative defense of a victim's intentional misrepresentation about her age. The defendant distinguishes the defense of mistake from the defense of fraud. He asserts that he, as a victim of fraud, is not in the same position as an accused who is mistaken about the victim's age or who commits an honest error. The defendant urges that he was not mistaken about the victim's age; he was defrauded by the victim.

¶21. The crux of the defendant's position is that this court should engraft an affirmative defense of fraud onto Wis. Stat. § 948.02(2) even though the text of the statutes renders an actor mistaken as to a child's age liable for the crime.14 We are not persuaded that any reason exists for this court to perform such a task. We agree with the State that § 948.02(2) is a strict liability crime with regard to knowledge of the child's age.15 Numerous indicia point to the conclusion that no affirmative fraud defense is part of or should be read into § 948.02(2) and that the defendant's proposed affirmative defense is contrary to the policy adopted by the legislature.

¶31. Accordingly, we further conclude that the circuit court erred in ruling to admit the evidence the defendant proffered. If an accused's reasonable belief about the victim's age, based on the victim's intentional misrepresentation, is not a defense, then neither evidence regarding the defendant's belief about the victim's age nor evidence regarding the cause of or reasonableness of that belief is relevant.32 Therefore, evidence of the defendant's belief about the victim's age or the victim's intentional misrepresentation of her age is inadmissible in the guilt-determination phase of a criminal proceeding to support the defendant's asserted affirmative fraud defense to the crime.

Much of the court’s analysis seems informed by evident legislative intent “to protect children.… The statutes are designed to impose the risk of criminal penalty on the adult, when the adult engages in sexual behavior with a minor.” ¶24. The proposed defense could let too many offenders off the hook. ¶25. But compare this policy concern with the unfortunate Jadowski’s actual circumstance: he says he can show that “the victim was a chronic runaway; that the victim used what appeared to be a state-issued identification card showing her to be 19 years old; that the victim told the defendant and others that she was 19 years old; that the victim appeared to be 19 years old; and that the victim maintained in the defendant's presence that she was old enough to work as an exotic dancer.” ¶6. The “victim,” by the way, was but a few months away from the age of consent, closer in age to 16 than 15. Not that it matters, apparently, but you have to wonder which of the two was more gullible and in need of protection.
UPDATE: For foreign authority, taking a more flexible approach, see In re Jennings, Cal SCt No. S115009, 8/23/04 (despite fact that crime of providing minor with alcohol imposed strict liability, court would recognize affirmative defense of mistake of fact: that defendant honestly and reaosnably believed minor was an adult).
Sexual Assault, § 948.02 -- Multiplicity -- Distinct Intrusions 
State v. William Koller, 2001 WI App 253, PFR filed
For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate
Issue: Whether distinct types of sexual assault (mouth-vagina and penis-vagina) necessarily support distinct counts.
Holding: “¶59 … When a perpetrator moves from having mouth-to-vagina contact to having penis-to-vagina intercourse, he necessarily engages in a new volitional act warranting a separate charge, conviction, and punishment.” (State v. Hirsch, 140 Wis. 2d 468, 475, 410 N.W.2d 638 (Ct. App. 1987), distinguished. ¶60.)
Sexual Assault, § 948.02 -- Multiplicity -- Separate Charges, Attempted & Completed Sexual Assaults
State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams
Issue: Whether charges of completed and attempted sexual assault of the same victim were multiplicitous.
Holding: “¶34. The nature of the two acts was different because the attempted sexual assault was foiled by the victim's resistance. There was some time separation between the two acts, sufficient for a question and answer. Further, Meehan had an opportunity to reconsider his course of action because Nickolas told him 'no' after the first act. See State v. Carol M.D., 198 Wis. 2d 162, 170, 542 N.W.2d 476 (Ct. App. 1995) ('Offenses are separated in time if the defendant had time to reconsider his ... course of action between each offense.'). Accordingly, we conclude that the two acts were not identical in fact.”
§ 948.02, Sexual Assault -- Sufficiency of Evidence
State v. Paul K. Shanks, 2002 WI App 93, PFR filed 4/11/02
For Shanks: Steven A. Koch
Issue/Holding: Evidence held sufficient to support conviction for sexual assault of child, notwithstanding inconsistencies and equivocations in complainant's testimony (court stressing that certain pretrial statements she made did implicate defendant). ¶25. Court also finds evidence sufficient on element of intent: "Intent to become sexually aroused or gratified can be inferred when a man places his finger in the vagina of a two-year-old girl." ¶26.
§ 948.02, Child Abuse -- failing to protect child from sexual assault -- elements -- person responsible for child's welfare.
State v. Suzette M. Ward, 228 Wis.2d 301, 596 N.W.2d 887 (Ct. App. 1999).
For Ward: Patricia L. Arreazola.
Holding: The § 948.02(3) element, "person responsible for the welfare of a child," was properly defined in jury instructions as "person employed or used by one legally responsible for the child's welfare." Payment, that is, isn't required. Evidence of this element is therefore held sufficient, though the child care arrangement wasn't fiscal. Ward gave the parents a standing offer to drop their child off at her home for baby sitting, therefore "a jury could reasonably infer that there was an implied agreement between the parents and Ward that Ward would care for their children when they were at her home."
§ 948.02(2), Attempted Sexual Assault (Intercourse) – Crime Known to Law Despite Lack of “Formal” Intent Element
State v. James F. Brienzo, 2003 WI App 203, PFR filed 10/10/03
For Brienzo: Jerome F. Buting
Issue: Whether attempted sexual assault of a child (by intercourse), § 948.02(2), is a crime known to law, in that the offense lacks an intent element and any crime of intent, § 939.32, requires specific intent for the completed act.
Holding: Sexual contact explicitly requires “intentional touching,” and therefore supports a charge of attempted assault by contact, State v. Grimm, 2002 WI App 242, 258 Wis. 2d 166, 653 N.W.2d 284. But “sexual intercourse,” unlike “contact,” is not defined with “a formal element of intent,” § 948.01(6). And although attempt requires that the completed offense contain the element of intent, State v. Briggs, 218 Wis. 2d 61, 66, 579 N.W.2d 783 (Ct. App. 1998), that requirement is satisfied for attempted assault by intercourse because intercourse necessarily involves contact. ¶¶18-21.
(A knotty semantical problem, to be sure, but there’s more to it than the court suggests. It’s clear that you can’t be charged with attempt when the completed crime lacks the element of specific intent. And it’s equally clear that assault by intercourse does not require intent. Indeed, the court of appeals previously has gone so far as to say that the legislature “intentionally omitted any intent requirement” from the offense of assault by intercourse. State v. Neumann, 179 Wis.2d 687, 709, 508 N.W.2d 54 (Ct. App. 1993). But that was different: Neumann wanted to raise an intoxication defense, and the court was certain that the absence of an intent element was meant to prevent any worm-holes through which the likes of Neumann could slither to freedom: “the legislature most likely concluded that a defendant's intent should not be an element of the crime because to allow for a defendant to claim the defense of intoxication, and other defenses based upon lack of intent, would be contrary to the goals of enforcement and protection of bodily security.” 179 Wis.2d at 710. But this is a different day, and with Brienzo seeking refuge in strict liability the court deems the elemental structure a bit more permeable after all; now, absence of intent is not deemed a matter of considered legislative policy but, rather, a matter merely of form and not substance. This is not to gainsay the court’s logic: there is something to be said for the idea that you can’t have intercourse without intentional touching. But there is a history, too, one which the court’s logic simply ignores – assault by intercourse is distinct from contact: the latter, specific intent; the former, strict liability.)
§ 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 v. Bollig, 2000 WI 6, ¶50, 232 Wis. 2d 561, 605 N.W.2d 199, and State v. Nichelson, 220 Wis. 2d 214, 220, 225, 582 N.W.2d 460 (Ct. App. 1998). Thus, the state must prove more than that the defendant “knowingly” touched someone (or event that the touching was purposeful in a general sense), ¶13; instead, the state must prove that the touching was for the specifically prohibited purpose of sexual degradation, humiliation, arousal or gratification:
¶14. This is not a distinction without a difference. Wisconsin Stat. § 939.23(2) defines "know" as "requir[ing] only that the actor believes that the specified fact exists." Section 939.23(3) defines "intentionally" as
Mean[ing] that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result. In addition ... the actor must have knowledge of those facts which are necessary to make his or her conduct criminal and which are set forth after the word "intentionally."
Whether one believes something exists or will happen is a different level of criminal intent as compared to whether it is one's conscious objective, that is, one's purpose, to do something. As a result, "knowing" contact and "intentional" contact are two very different things….
(Note: 2nd-degree sexual assault also may be committed by intercourse; although that offense does not explicitly require proof of intent, the court of appeals has read intent into it, on the theory that intercourse is impossible without contact. State v. Brienzo, 2003 WI App 203, ¶¶18-21. Jipson was charged with contact, despite the fact that the allegation was intercourse, ¶15, but under Brienzo that shouldn’t make a difference as to the required proof of prohibited intent, nor does the court indeed suggest that the allegation of intercourse matters.)
§ 948.03(2)(b) (2001-02), Harm to Child – Elements, Proof
State v. Kimberly B., 2005 WI App 115
For Kimberly B.: Anthony G. Milisauskas
Issue/Holding: "¶22      … The crime of physical abuse of a child, as applied to the matter at hand, requires proof beyond a reasonable doubt of the following three elements: (1) Kimberly caused bodily harm to Jasmine, (2) Kimberly intentionally caused such harm, and (3) Jasmine had not attained the age of eighteen years at the time of the alleged offense.  See Wis JI—Criminal 2109. …"

[On this challenge to the first and second elements, the court concludes there was more than enough evidence that Kimberly intentionally caused Jasmine bodily harm, holding in the process that the harm need not be severe enough to result in medical treatment, ¶¶23-28.]

§ 948.03(2)(b) (2001-02), Harm to Child– Defense of Parental Privilege, § 939.45(5)
State v. Kimberly B., 2005 WI App 115
For Kimberly B.: Anthony G. Milisauskas
Issue/Holding:
¶30      While Wis. Stat. § 939.45(5) recognizes the right of a parent to inflict corporal punishment to correct or discipline a child, that right of parental discipline has its limits. Kimberly seems to suggest that the statute prohibits only force that is “intended to cause great bodily harm or death” or that “create[s] an unreasonable risk of great bodily harm or death.” However, we agree with the State that the plain language of § 939.45 requires that (1) the use of force must be reasonably necessary; (2) the amount and nature of the force used must be reasonable; and (3) the force used must not be known to cause, or create a substantial risk of, great bodily harm or death. If parental conduct fails to satisfy even one of these prongs, then the parent is not protected by the privilege. Thus, to overcome the privilege of parental discipline in Wisconsin , the State must prove beyond a reasonable doubt that only one of these three prongs is not present.

¶32      Reasonable force is that force which a reasonable person would believe is necessary.  Wis JI—Criminal 950. …

¶33      “The test of unreasonableness is met at the point at which a parent ceases to act in good faith and with parental affection and acts immoderately, cruelly, or mercilessly with a malicious desire to inflict pain, rather than make a genuine effort to correct the child by proper means.” State v. Thorpe, 429 A.2d 785, 788 (R.I. 1981). There is no inflexible rule that defines what, under all circumstances, is unreasonable or excessive corporal punishment. Id. Rather, the accepted degree of force must vary according to the age, sex, physical and mental condition and disposition of the child, the conduct of the child, the nature of the discipline, and all the surrounding circumstances. See Wis JI—Criminal 950.

¶37      Given the evidence before the jury concerning the aggressive nature of the physical punishment, the actual injuries sustained and Kimberly’s demeanor and prior knowledge, the jury could reasonably conclude that Kimberly was not making a genuine effort to discipline Jasmine by proper means ….

State v. Jeffrey L. Torkelson, 2007 WI App 272, PFR filed 11/30/07
For Torkelson: Timothy A. Provis
Issue/Holding: The remedy for violation of the § 948.025(3) prohibition on charging multiple offenses in the same proceeding is limited to dismissal of the charges (not new trial):
¶26   … Wisconsin Stat. § 948.025(3) simply prohibits the State from charging certain enumerated offenses in the same action as a violation of § 948.025. Nothing in the statute indicates the remedy for a violation is anything other than dismissal of the prohibited charges. [7] In addition, Torkelson does not refute the State’s argument that all of the evidence produced on the dismissed counts would have been admissible to prove the sexual assault count. Under these circumstances, Torkelson is not entitled to a new trial.
§ 948.03(3)(b), Physical Abuse of Child by Recklessly Causing Bodily Harm – Element of Recklessness
State v. Quentrell E. Williams, 2006 WI App 212
For Williams: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: Because “recklessly” causing harm to a child, § 948.03(b), is determined solely from an objective point of view, evidence related to whether the actor “subjectively thought his [disciplinary action] was reasonable parental discipline” is irrelevant, including evidence of how the actor was him or herself disciplined as a child, ¶¶26-32.
Different issue but similar analysis in the recently-published State v. Ray A. Hemphill, 2006 WI App 185, to the effect that because element of “recklessness” in § 948.03 doesn’t implicate criminal intent, defense of mistake not available, nor need defendant be subjectively aware of risks of conduct. Note, though, that “recklessly” has its own narrow definition under § 948.03(1), and that other crimes involving reckless conduct will contain a subjective component by dint of § 939.24(1)—a point made by Williams, ¶26.
§ 948.03(3), Physical Abuse of Child by Recklessly Causing Great Bodily Harm – Element of Recklessness
State v. Ray A. Hemphill, 2006 WI App 185, PFR filed 9/14/06
For Hemphill: Timothy A. Provis
Issue/Holding: Because physical abuse of a child by recklessly causing great bodily harm doesn’t require any criminal intent, the defendant is not entitled to a defense of “mistake,” § 939.24(2), ¶¶9-13.
§ 948.03(3), Physical Abuse of Child by Recklessly Causing Great Bodily Harm – Proof of Recklessness
State v. Ray A. Hemphill, 2006 WI App 185, PFR filed 9/14/06
For Hemphill: Timothy A. Provis
Issue/Holding:
¶15 Like the negligence charge brought against Lindvig, here no criminal intent needed to be proven to meet the elements of the charge brought against Hemphill; it is an objective test having no subjective state of mind element. Hemphill need not have intended to harm Terrence or have been aware of the risk his conduct posed to Terrence’s well-being in order to be found guilty. It was his conduct, not his intent, which brought the charge. The State’s proof—that Hemphill laid across the chest of an eight and one-half-year-old boy in a hot, unairconditioned room, for up to two hours—was conduct that created an unreasonable risk of harm to Terrence and demonstrated a conscious disregard for his safety, and was sufficient to satisfy all the elements of the crime. Hemphill’s apparent belief that Terrence was not medicated was not a defense to the charge. For the reasons stated, we affirm.
§ 948.05, Sexual exploitation of child - constitutionality.
State v. Joel R. Zarnke, 224 Wis.2d 116, 589 N.W.2d 370 (1999), reversing and remanding, 215 Wis.2d 71, 572 N.W.2d 491 (Ct. App. 1997)
For Zarnke: Michael R. Cohen, Wachowski, Johnson & Cohen
Issue/Holding:
¶ The issue before the court is whether Wis. Stat. § 948.05 prohibiting the sexual exploitation of a child violates the First and Fourteenth Amendments to the United States Constitution and Article I, § 3 of the Wisconsin Constitution for failing to require that the State prove that a distributor of sexually explicit materials had knowledge of the minority of the person(s) depicted in the materials. We hold that the statute does violate the federal and state constitutions as it applies to distributors of such materials, and decline to save the statute insofar as it applies to those accused of the proscribed activities of § 948.05(1)(c) which do not entail a personal meeting between the minor depicted and the accused.
The court distinguishes production from distribution of explicit materials involving children - the key is whether the prohibited conduct "entail(s) a personal interaction between the accused and the child-victim." Contrary to most challenges to constitutionality of a statute, in this instance the state has the burden of proving beyond reasonable doubt that the statute is constitutional, because first amendment rights are at issue. The statute is (as the AG concedes) unconstitutional, because it places on the defendant the burden of proving lack of knowledge, rather than on the state to prove knowledge. Pretermitting elemental proof of scienter surpasses constitutional limits on the legislature authority to define criminal conduct. The court stresses both the free-speech, first amendment aspect of the case on this point, and the idea that the statute is functionally if not nominally strict liability (given the virtual impossibility of a distributor from meeting his/her burden of proving lack of knowledge of age). In sum: "We hold that an essential element of the crime specified in Wis. Stat. § 948.05 must be an accused's knowledge of the minority of the child-victim, that the State must bear the burden of proving some level of scienter as to that essential element where an accused's conduct does not entail a personal meeting with the minor, and that as currently drafted, the legislature has not constitutionally allocated that necessary burden." Though the court on occasion has "saved" otherwise .unconstitutional statutes by imposing certain requirements it won't do so in this case, largely because it would have to rewrite the statute in a manner contrary to the legislature's express intent. ("severing the offending portions of the statute, and then reading into those same portions a burden that the legislature explicitly rejected, would be an act of legislation.") "With the removal of the offending language, § 948.05(1)(c) now reads: 'Produces or performs in any undeveloped film, photographic negative, photograph, motion picture, videotape, sound recording or other reproduction of a child engaging in sexually explicit conduct.' We explicitly reserve the question of whether this remaining portion of § 948.05(1)(c) is constitutional."
For authority to effect that distribution of child-sex material must be intentional, see People v. Tombs, MI SCt No. 125483, 6/1/0 ("The most applicable dictionary definition of 'distribute' implies putting items in the hands of others as a knowing and intentional act"; thus, mere possession of child pornography downloaded onto workplace computer insufficient to support conviction).
§ 948.07, Enticement -- Elements
State v. John S. Provo, 2004 WI App 97, PFR filed 5/7/04
For Provo: William H. Gergen
Issue/Holding: “¶1 … We hold that § 948.07 requires only that the defendant cause the child to go into any vehicle, building, room, or secluded place with the intent to engage in illicit conduct, but not that the child necessarily be first separated from ‘the public.’” That is, Provo is guilty even though he “caused the victim to go from an already private place (the home) to another private place (the bedroom).” The issue is controlled by State v. Gomez, 179 Wis. 2d 400, 507 N.W.2d 378 (Ct. App. 1993), and subsequent cases, namely State v. Church, 223 Wis. 2d 641, 589 N.W.2d 638 (Ct. App. 1998), State v. DeRango, 229 Wis. 2d 1, 599 N.W.2d 27 (Ct. App. 1999), and State v. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359 (Ct. App. 2001), don’t alter the result:
¶12 None of the cases impose a limitation on the place where the child was when the person caused him or her to go into a place out of the public view. Rather, in all three cases we merely recognized, as we did in Gomez, that the gravamen of the child enticement statute is to prevent children from being taken into places outside of the protection of the public where the commission of some illegal conduct might be facilitated. All four cases zeroed in on the fact that the place the child was taken existed outside the public view. No language says that the place from which the child was taken had to be a public place. Thus, Church, DeRango and Koenck are wholly consistent with our holding in Gomez.

¶13 The child enticement statute proscribes, without qualification, “caus[ing] … any child who has not attained the age of 18 years to go into any vehicle, building, room, or secluded place” with the intent to commit any of the enumerated acts. WIS. STAT. § 948.07. As Gomez rightly observes, there is simply no requirement that the defendant separate the child from the public. Further, we find no indication in the legislative history of the act that its purpose is to prevent predators from luring children from a public place. We, therefore, reject Provo’s invitation to read into the statute a requirement that the accused have caused the minor victim to go from a public place to a secluded place. Accordingly, we conclude that the lawyer’s failure to cross-examine the victim at the preliminary hearing and to otherwise pursue the issue did not constitute ineffective assistance of counsel.

§ 948.07, (Attempted) Enticement -- Initiated over Internet
State v. James F. Brienzo, 2003 WI App 203, PFR filed 10/10/03
For Brienzo: Jerome F. Buting
Issue: Whether the first amendment bars application of § 948.07 (attempted child enticement) to conduct initiated over the Internet without face-to-face contact.
Holding: ¶2:
We conclude that pursuant to State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287, a case decided after the circuit court issued the order, the application of the child enticement statute to Brienzo’s alleged attempt to entice a child over the Internet does not violate his First Amendment constitutional rights.
This involves a sting operation, in other words the putative "victim" was in fact an adult, government agent, so that the crime would have been impossible to complete. The court limits the holding to attempted, rather than completed, enticement. ¶13 ("we need not even address whether the holding in Robins embraces a charge of completed child enticement"). Hard to see, though, how you can have completed enticement without then also having face-to-face contact. And, as the 7th Circuit has explained in a very similar circumstance -- federal prosecution for attempting to entice a "minor" (in fact, a government agent) into pornographic activities -- "(b)ecause it was factually impossible for Johnson to complete the offense, he can only be subject to prosecution for an attempt to manufacture child pornography." U.S. v. Tery Johnson, 7th Cir. No. 03-2183, 7/19/04. Of course, to be guilty of attempt the defendant must actually believe that the individual is a minor. Id.

Use of government agents posing as "minors" in chat rooms is, it should be noted, an increasingly popular law enforcement device; thus, this basic fact pattern is likely to be recurrent. See, e.g., U.S. v. Hornaday, 11th Cir No. 03-13992, 12/13/04 (upholding federal conviction for knowing attempt to entice). Also see State v. Koenck, below.

§ 948.07, Enticement -- multiplicity.
State v. William J. Church, 223 Wis.2d 641, 589 N.W.2d 638 (Ct. App. 1998), petition for review dismissed as improvidently granted, State v. Church, 2000 WI 90.
For Church: James L. Fullin, SPD, Madison Appellate.
Holding: Church was convicted on multiple counts, including one for child enticement (intent to expose sex organ), § 948.07(3), and one for child enticement (intent to give controlled substance), § 948.07(6) arising out of the same incident. The issue, really, is whether under the enticement statute a single act potentially animated by different forms of intent, can support convictions for each intent. The COA says no, after expounding at length on Blockburger and canvassing (arguably in dicta) the statute's legislative history. Keep in mind that the statute punishes mens rea, not actus reus. As the court puts it, "we also conclude that multiple criminal punishments are appropriate for multiple acts, but not for multiple thoughts."
Go To Brief
§ 948.07, Enticement -- Elements -- Proof of Victim's Age
State v. Timothy P. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359
For Koenck: Lew Wasserman
Issue: "(W)hether in a prosecution under § 948.07 the charges must be dismissed because the State cannot prove that the victim had not attainied the age of eighteen [because the 'victim' is fictitious]." ¶7.
Holding:
¶28 Within the contemplation of WIS. STAT. § 948.07, an attempt is complete when the defendant, with intent to commit a crime, takes action in furtherance of such intent and the failure to accomplish the crime is due to a factor beyond his or her control or one unknown to him or her. Huebner v. State, 33 Wis. 2d 505, 520, 147 N.W.2d 646 (1967). We conclude that the fictitiousness of the girls constituted an extraneous factor beyond Koenck’s control that prevented him from successfully enticing a child for the express purpose of sexual intercourse or contact. Id. at 520-21. Koenck did everything necessary to insure the commission of the crime intended, and his conduct is not excused because of the fortuitous circumstance rendering it impossible to effectuate the intended result. State v. Damms, 9 Wis. 2d 183, 190-91, 100 N.W.2d 592 (1960).
The court rejects Koenck’s argument that attempt principles are inapplicable:
Reading §§ 948.07 and 939.32(1)(d) together, it is clear that the legislature, by enclosing the attempted and completed act in the same statute, did not intend to eliminate the crime of attempted child enticement, but determined that the attempted act of child enticement was as egregious as the completed act and thus each warranted the same penalty. Contrary to Koenck’s assertions, merging the completed and the attempted crime into one statute does not render the principles of attempt inapplicable. The reference in § 939.32(1)(d) to § 948.07 indicates that the principles of attempt apply to § 948.07 violations.
For discussion of Internet "sting" cases under federal enticement statutes, see U.S. v. Tykarsky, 3rd Cir No. 04-4092, 5/10/06 (upshot: no requirement that there be an actual, minor "victim"; lengthy discussion of "law of impossible attempts" and distinction between factual and legal impossibility).
§ 948.07, 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, away from the protection of the general public, for illicit sexual or other improper purposes. Derango, 2000 WI 89, ¶¶17-19. That an act of child enticement is initiated or carried out in part by means of language does not make the child enticement statute susceptible of First Amendment scrutiny.

¶44. Robins' internet conversations and e-mails with "Benjm13" do not by themselves constitute the crime of child enticement. Rather, Robins' internet conversation and e-mails are circumstantial evidence of his intent to entice a child, which, combined with his actions in furtherance of that intent, constitute probable cause for the crime of attempted child enticement. That some of the proof in this case consists of internet "speech" does not mean that this prosecution, or another like it, implicates First Amendment rights. Simply put, the First Amendment does not protect child enticements, whether initiated over the internet or otherwise.

Using Computer to Facilitate Child Sex-Crime, § 948.075(3) – Element of Act “Other Than … Computerized Communication”
State v. Eric T. Olson, 2008 WI App 171
For Olson: Byron C. Lichstein
Issue/Holding: The “act other than element” of § 948.075(3) isn’t satisfied by either transmission of live video of the shirtless defendant, or by his prior sexual encounters with others he met on-line:
¶11      Accordingly, we read the statute to require that, before the State may obtain a conviction under WIS. STAT. § 948.075, the defendant must have done an act to accomplish, execute, or carry out the defendant’s intent to have sexual contact with the individual with whom the defendant communicated. [6] More significant for purposes of this decision, the statute requires that the act be something other than “us[ing] a computerized communication system to communicate with the individual.” With this understanding of the statute in mind, we turn to address Olson’s conduct.

¶12      Olson argues that his use of the webcam to transmit live video of himself shirtless from the top of the chest up does not fit the “act” requirement because it was not an act other than “us[ing] a computerized communication system to communicate with” nora13queen. Wis. Stat. § 948.075(3). We agree.

¶16      We conclude that Olson’s use of his webcam to transmit video of himself was, under the circumstances of this case, nothing more than the use of his computer to communicate with nora13queen. Consequently, we disagree with the circuit court and the State that Olson engaged in the type of act required under Wis. Stat. § 948.075(3) by transmitting that video. At the same time, we stress here and below in this opinion that it may be possible to use a communication function of a computer to engage in an “act” within the meaning of the statute.

(State v. Dennis Charles Schulpius, 2006 WI App 263, distinguished, ¶¶22-23: Schulpius drove through a neighborhood looking for the supposed girl.)
¶24      Olson next argues that the circuit court erred when it concluded that his previous sexual encounters with other women he met chatting on-line satisfied the “act” requirement. The State does not defend the circuit court’s decision on this ground. Rather, the State notes the circuit court’s conclusion and says only that “it is unclear whether that evidence is sufficient to constitute an act to ‘effect’ [Olson’s] intent to have sex with ‘nora13queen.’” We agree with Olson that the circuit court’s conclusion on this topic is in error.

¶25      Olson’s admission of previous sexual encounters arising from internet chats might be relevant evidence. For example, it might, depending on other evidence, be used as admissible other acts evidence. But Olson’s admission does not involve an act to accomplish, execute, or carry out his intent in this case. Accordingly, those encounters could not constitute the required act with respect to nora13queen under Wis. Stat. § 948.075(3).

Because the given facts don’t establish a factual basis for the crime, Olson is entitled to withdraw his plea, ¶¶6, 26.
Using Computer to Facilitate Child Sex-Crime, § 948.075(3) – Elements
State v. Dennis Charles Schulpius, 2006 WI App 263
For Schulpius: Bridget Boyle
Issue/Holding:
¶10      … The subsection has two elements:  (1) the defendant must have done something that shows that he or she had, as phrased by § 948.075(1), the “intent to have sexual contact or sexual intercourse” with someone whom he or she believed, or had reason to believe, was younger than sixteen, and (2) that act must be something “other than use a computerized communication system to communicate with” that person. …
Using Computer to Facilitate Child Sex-Crime, § 948.075(3) – Sufficiency of Evidence – Proof of Act “Other Than … Computerized Communication”
State v. Dennis Charles Schulpius, 2006 WI App 263
For Schulpius: Bridget Boyle
Issue/Holding: Evidence, properly believed by the trier of fact, that Schulpius drove to the neighborhood of the presumed child with whom he was communicating by computer, for the specific purpose of meeting her, supported the elemental requirement of a non-computerized act under § 948.075(3). So, too, did evidence that he had purchased condoms “in case she wanted to have sex with him.” ¶13.
In a concluding fillip, the court says that this single-issue appeal “borders on the frivolous,” ¶13. That may well be so, but why on earth the, clutter already-groaning reporters with discussion of a borderline-frivolous issue? True, the computerized child-sex statute hasn’t previously been construed; but is its plain text really refined by affirming that purchase of condoms in hope of liaising with Lolita is a non-computerized act? Why doesn’t this case fall within § 809.23(1)(b)2 (no publication on issue of sufficiency of evidence “and the briefs show the evidence is sufficient”)? The publication rule either means something or it doesn’t; and if the court is going to continue to enforce the no-cite rule then it ought to at least trouble itself to publish only those cases that truly are precedential.
§ 948.07(6), Enticement -- Causing Child to Enter Room for Purpose of Giving Controlled Substance
State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro
Issue/Holding: Providing cocaine to a minor in exchange for sex supported plea-based conviction for enticement within § 948.07(6), ¶23.
§ 948.08, Causing Child to Practice Prostitution – Repeated Sex Acts in Exchange for Cocaine
State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro
Issue: Whether repeated “dope dating” (giving a minor cocaine on multiple occasions in exchange for sex) amounts to causing the child to practice prostitution within the meaning of § 948.08.
Holding1: “Practice” prostitution:
¶15      Payette is charged with violating Wis. Stat. § 948.08, [7] which provides that: “Whoever intentionally solicits or causes any child to practice prostitution or establishes any child in a place of prostitution is guilty of a Class BC felony.” [8] (Emphasis added.) This statute, except for the reference to a child, and the level of punishment, is identical in language to Wis. Stat. § 944.32. …

¶16      The term “prostitution” is defined in Wis. Stat. § 944.30(1) to include someone who intentionally “[h] as or offers to have or requests to have nonmarital sexual intercourse for anything of value.” (Emphasis added.) The complaint clearly establishes that RS had nonmarital sexual intercourse with Payette repeatedly in exchange for something of value, namely cocaine. Although there are no reported cases specifically construing Wis. Stat. § 948.08, such is not the case for application of its sister statute, Wis. Stat. § 944.32. In State v. Johnson, 108 Wis. 2d 703, 711-12, 324 N.W.2d 447 (Ct. App. 1982), we explained that under § 944.32, the meaning of causing a person “to ‘practice’ prostitution” is “‘to do or perform often, customarily, or habitually.’” (Citation omitted.) The habitual nature of Payette’s trading cocaine for sex with RS (over thirty times) satisfies the § 948.08 requisite that RS did “practice prostitution” with Payette.

Holding2: “Caused” prostitution:
¶17   As we discussed in , 170 Wis.  2d 676, 682-83, 489 N.W.2d 715 (Ct. App. 1992), a criminal result (death of a person) may occur because of more than one cause. …

¶18   Wisconsin JI—Criminal 901 explains: “‘Cause’ means that the defendant’s conduct was a substantial factor in producing” the consequence at issue. (Emphasis added.) The instruction continues to explain that “[t]here may be more than one cause” (of the consequence at issue) and that “[t]he act of one person alone might produce it, or the acts of two or more persons might jointly produce it.” Id.

¶21      Payette focuses on only whether the complaint alleges “solicitation,” although that is only one of the two alternative types of conduct prohibited by Wis. Stat. § 948.08. … Although § 948.08 is colloquially referred to as prohibiting “solicitation,” the statute also specifically, and alternatively, prohibits “causing” a child to practice prostitution. As we have seen, “cause” is “a substantial factor” which need not be the first cause, nor the sole cause, of a child practicing prostitution.

¶22      The complaint discloses a pattern in which Payette’s conduct is a substantial factor causing young girls (including RS) to repeatedly and habitually engage in nonmarital sexual acts with him in exchange for something of value, namely the cocaine which he provided. There is no dispute that each victim was under the age of eighteen at the time of the various offenses. On more than thirty occasions, Payette received sex with RS in exchange for cocaine pursuant to “an understanding” between them. Payette’s claim that the complaint does not allege that RS was not a prostitute before their encounter, and that the complaint does not allege that he initially proposed the “understanding” of trading sex for cocaine, is irrelevant to the permitted inference that Payette’s conduct was a substantial factor causing the prostitution so graphically described.

The court also holds, superfluously given its just-announced conclusion that the behavior alleged in the complaint satisfied the elements of the offense, that Payette has no factual-basis attack on his plea, ¶¶25-35. See, e.g., ¶ 27 (“As we have explained, the complaint establishes a factual basis for the pleas”). The court lays out the test for challenging a factual basis: the defendant must “show, by clear and convincing evidence, that there is no factual basis that the conduct admitted to actually falls within the charge,” ¶26; the “whole record,” including the sentencing and defense counsel’s statements, may be considered, ¶27.
§ 948.095, Sexual Assault by School Instructional Staff – Elements
State v. David R. Kaster, 2006 WI App 72, PFR filed 4/26/06; prior appeal: 2003 WI App 105
For Kaster: Robert R. Henak
Issue/Holding: Kaster’s prior appeal held that school staff need not be under contract for purposes of § 948.095; providing voluntary services at the time of the alleged assault suffices. This prior holding did not, the court now resolves, expand the scope of the statute so as to deprive Kaster of fair notice of the proscribed conduct:
¶7        Here, Kaster argues that our interpretation of Wis. Stat. § 948.095 in Kaster requires that a defendant must actually be providing services at the time of the alleged sexual contact to be covered by the statute, which he contends is an additional element that we added. Kaster bases his proposition on the following statement in our opinion: “Finally, we conclude that the evidence at trial was sufficient to allow the jury to conclude that Kaster was providing services to the school or school board when he committed the ... assault.” Id., ¶17. Therefore, Kaster asserts, he was “denied his right to present a defense on that element of the offense” because he “was not on notice of [our] interpretation of the statute at the time of the trial ….”

¶8        Because the statute put Kaster on notice that a conviction required that he be providing services at the time of the alleged sexual contact, we reject his argument. In Kaster, we addressed Kaster’s contention that the statute did not cover him because he was not school staff. The foregoing quote that Kaster highlights did not create an additional element but instead provided a description of Kaster’s relationship with the school for the purpose of analyzing whether Kaster was school staff. Id. Our goal was simply to further parse the definition of school staff and its application to Kaster. Thus, we reject Kaster’s argument that he was denied the right to present a defense and that we should exercise our discretionary reversal authority under Wis. Stat. § 752.35.

The court’s discussion is a bit opaque. Kaster, was a high school swim coach, but his contract was seasonal and the challenged assault occurred outside the swim season (though he was then working for the team as what he characterizes an “intermittent volunteer”). He thus argued in his prior appeal that he was not under contract with the school board at the time of the assault and that the statute did not cover someone such as him providing merely volunteered service. The court rejected that argument, holding that you don’t have to be “under contract” to be considered school staff for purposes of § 948.095. Kaster further argued the 1st time around that the evidence was insufficient, but the court said, in the remark quoted above in ¶7, that the jury had a basis to conclude that he had provided services to the school at the time of the assault. One little problem: the court didn’t explain then, and perpetuates that failure now, exactly what services an “intermittent volunteer” such as Kaster must provide. Nor was the jury given any guidance on that question. Kaster therefore argues that as a matter of due process the definition must be limited “to those volunteers actively providing services to a school at the time of the alleged assault,” else the statute would be too vague. The court seemingly, on this new round, rejects that argument, though other than the conclusory remark in ¶8 gives no analysis. Moreover, the PFR points out that “the jury instructions here did not require a finding that Kaster was providing services to the school at the time of the alleged assault,” which leads to a very serious defect, namely that a conviction can’t be affirmed on a theory never resolved by the fact-finder. Again, no discussion on this point by the court of appeals.
§ 948.095, Sexual Assault by School Staff – Definition of “School Staff”
State v. David R. Kaster, 2003 WI App 105, PFR filed 5/20/03
For Kaster: Steven L. Miller
Issue/Holding: An individual coaching a swimming team is “school staff” within the meaning of § 948.095, even if not under contract.
(The statute covers “any person who provides services to a school or a school board[.]” The court indicates that coverage “is broad,” sufficiently so “that volunteers are included within the statute’s definition of ‘school staff.’” ¶15. One of the charges against Kaster, it should be noted, occurred after his contract expired. ¶2.)
Distribution of Harmful Material to Children, § 948.11(2)(am) – Internet Chat Room Communication is “Verbal” Communication, within Statute
State v. Shawn B. Ebersold, 2007 WI App 232
For Ebersold: Lester A. Pines
Issue: Whether message sent via Internet chat room supports prosecution for § 948.11(2)(am), verbally communicating harmful material to child.
Holding:
¶9    In this case, the parties dispute whether Wis. Stat. § 948.11(2)(am) prohibits communication of a harmful description or narrative account to a child via an Internet chat message. Whether such a message is within the scope of conduct prohibited by the statute depends largely on the meaning of the word “verbally,” within the phrase “verbally communicates, by any means.” …

¶14   However, we conclude that the State’s interpretation is more reasonable than Ebersold’s because it is consistent with the context, history and purpose of the statute. … Thus, “verbally” is most reasonably read here as proscribing communication to children of harmful matter in words, whether oral or written, and to distinguish § 948.11(2)(am) from § 948.11(2)(a), which primarily proscribes visual representations.

¶17   The supreme court has declared that the purpose of Wis. Stat. § 948.11 is twofold: “(1) to protect minors from material harmful to them as a class and (2) to protect the rights of parents to supervise the development of their children.” State v. Thiel, 183 Wis.  2d 505, 524, 515 N.W.2d 847 (1994). A reading of § 948.11 that exempts from the ambit of the statute harmful descriptions or narratives that are communicated to a child in written form is inconsistent with these two goals. Ebersold provides no reason why the legislature would exempt written descriptions harmful to children from § 948.11, while making the communication of harmful oral descriptions a Class I felony, and we can conceive of none.

The court rejects a vagueness challenge that the statute fails to provide fair notice that written communications are within its ambit, ¶18: the meaning of “verbal” as associated with words and not merely oral is sufficiently established to “give persons of ordinary intelligence fair notice that it prohibits written communication.” The court, however, leaves open the question of whether the statute covers distribution of a “story on the Internet to a broad audience rather than to a specific person the defendant knew or reasonably should have known was a minor,” ¶18 n. 5.
Exposing Minors to Harmful Materials, § 948.11(2) -- Sufficiency of Evidence -- Failure to Expose Those Alleged Materials to Jury
State v. Tyrone Booker, 2006 WI 79, reversing 2005 WI App 182
For Booker: Jeffrey W. Jensen
Issue: Whether conviction under § 948.11, exposing child to harmful materials, can be sustained where the jury heard the children’s and a detective’s descriptions of the videotape but did not themselves view it.
Holding:
¶25      When we view the evidence in this case most favorably to the State, we conclude that a reasonable "trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt," based on the testimony presented. First, the jury could conclude that the video excerpts, as described, predominantly appeal to the prurient interests of children. "Prurient" is defined as "arousing inordinate or unusual sexual desire." Black's Law Dictionary 1263 (8th ed. 2004). The portions of the video that Booker showed to the girls were consistently described as scene upon scene of sexual acts, with all scenes ending with the male masturbating to the point of ejaculation on the female.

¶26      Second, the jury could conclude that the video is patently offensive to prevailing standards in the adult community with regard to what is suitable for children. Motion pictures that depict explicit sexual material harmful to minors may not be shown at outdoor theaters if the screen is visible from a public street, sidewalk, thoroughfare or other public place or from private property where it can be observed by minors. Wis. Stat. § 134.46(2). Videos with the type of content described by the witnesses are not available for rental to minor children in Wisconsin. Videos showing explicit sexual acts are commonly rated and restricted so that minor children will not be exposed to them.[8] A jury could make a reasonable determination based on the testimony presented at trial that the video Booker showed the girls is considered by Wisconsin adults as unsuitable for children.

¶27      Third, the jury could conclude that the video excerpts lacked serious literary, artistic, political, scientific or educational value for 12- to 14-year-olds because nothing was shown except episodes with men and women engaging in sexual acts. There was no evidence that the video had merit for children of these ages, for any reason. And, for the same reasons that the other parts of the "harmful material" element can be met by the evidence presented, a reasonable trier of fact could conclude from the testimony that the video was absolutely void of serious literary, artistic, political, scientific or educational value for children.

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 by cases interpreting similar child pornography laws. See State v. Petrone, 161 Wis. 2d 530, 561, 468 N.W.2d 676 (1991). …

¶12      … Lala admits that in each of the photos, the child is positioned so that her “crotch is visible,” but maintains that because the child appears to be wearing nylons or “nylon underwear,” as evidenced by a nylon seam, the intimate parts of the child are not unclothed and therefore the pictures are not lewd. Lala’s arguments are not persuasive.

¶13      When the Petrone court established guidelines for defining “lewd” or “sexually explicit,” it did not require that a child be “unclothed” in order for a picture to be lewd. Instead the supreme court stated that visible display of the child’s pubic area and posing the child as a sex object with an unnatural or unusual focus on the child’s genitalia should inform the common sense determination by the trier of fact regarding the pornographic nature of the image. See Petrone, 161 Wis. 2d at 561. It follows that where a child’s pubic area is visibly displayed, as is it is here, the lack of a full opaque covering is a proper consideration that should inform the common sense determination by the trier of fact.

¶17      In sum, despite the arguable presence of nylons which provided less than a full opaque covering and left the child’s intimate parts visibly displayed, the evidence was sufficient to support the trial court’s conclusion that the photographs depicted a child engaged in sexually explicit conduct. [7]

The court leaves open the issue of “whether the presence of a full opaque covering would be sufficient to avoid a violation of Wis. Stat. § 948.12(1m),” ¶17 n. 7.
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: Scienter sufficiently proved, given the following:
¶18       Lala did not testify at trial; therefore, the trial court’s determination that Lala knew the character and content of the photographs to be sexually explicit was based on the content of the e-mail report taken from his computer. The e-mail report contained several e-mails from Lala to various websites requesting photographs and videos of girls in a specified age range wearing nylons, and inquiries as to whether photographs could be taken of the child without underwear. [8] Lala requested that the child models pose like the girl in the seven photographs that were attached to the e-mails (four of which have been deemed sexually explicit by the trial court and this court). Lala stated in the e-mails that although he had not sent many photographs, he would like most of the photographs to be taken angling up the child’s skirt.
Possession of Child Pornography, § 948.12(1m) – Elements – Depiction of “Real” Children Necessary
State v. Jason K. Van Buren, 2008 WI App 26, PFR filed 1/23/08
For Van Buren: Waring R. Fincke
Issue/Holding: Possession of child pornography, § 948.12(1m), requires depiction of real, as opposed to “virtual,” children:
¶6        … Wisconsin Stat. § 948.12(1m) (2005-06) [1] criminalizes the knowing possession of any “photograph … of a child engaging in sexually explicit conduct.” To be convicted under this statute, a person (1) must know that he or she possesses the photograph, (2) must know the character and content of the sexually explicit conduct depicted, and (3) must know (or reasonably should know) “that the child engaged in sexually explicit conduct has not attained the age of 18 years.” Id.

¶7        Van Buren states that the “statutory framework says absolutely nothing about actual or real, as opposed to computer generated or virtual, children. It does not address whether the State has to prove beyond a reasonable doubt that the person depicted in the material really exists or is actually under the age of 18.” These contentions are off the mark. The issue in Free Speech Coalition arose because the statutes there explicitly purported to restrict images of “non-real” children, i.e., images that “appear[ ] to be” or are “described” as images of children. See Free Speech Coalition, 535 U.S. at 241-42. But the Wisconsin statute speaks only of a “child,” and there is nothing to suggest that the statutory term “child” includes a “non-real” child. The statutes contain thousands upon thousands of nouns, very few of which are preceded by the word “real”—because “real” is implied in the general understanding of most nouns.

¶8        Admittedly, the situation may be somewhat different when one is discussing depictions of things; for example, one might say that the film Jurassic Park “depicts dinosaurs,” even though no real dinosaurs were used in the making of the film. But Wis. Stat. § 948.12(1m)(c) specifies that to be convicted under the statute, the person possessing the pornography must know or have reason to know “that the child engaged in sexually explicit conduct has not attained the age of 18 years.” This element does not speak of depictions at all, but rather of a “child [who] has not attained the age of 18 years.” This confirms that the plain language of § 948.12(1m) forbids only depictions of real children engaged in sexually explicit activity. [2]

The court leaves open (fn. 2) the statute’s coverage of “‘morphing’; i.e., innocent pictures of real children altered so that the children appear to be engaged in sexual activity.”
Possession of Child Pornography, § 948.12(1m) – Sufficiency of Evidence – Element of “Real Children” Depicted – Expert Testimony Unnecessary
State v. Jason K. Van Buren, 2008 WI App 26, PFR filed 1/23/08
For Van Buren: Waring R. Fincke
Issue: Whether conviction of possession of child pornography requires proof, by evidence additional to the photos themselves, that real children are depicted.
Holding:
¶11      … According to Van Buren, something more than the photos themselves is now required to sustain a child pornography conviction. (Presumably he means that expert testimony or identification of the actual child involved is necessary.) Criminal defendants have repeatedly advanced this argument since the decision in Free Speech Coalition. …

¶12      We find the rationale of the Rodriguez-Pacheco majority far more convincing. We can explain our view on the issue no better than the First Circuit did:

In [ United States v. Nolan, 818 F.2d 1015 (1st Cir. 1987)], this circuit rejected a per se rule that the government must produce expert testimony in addition to the images themselves, in order to prove beyond a reasonable doubt that the images depicted are of real children.… The defendant in Nolan argued that “the prosecution failed to prove that the pictures were not composite representations or otherwise faked or doctored, or ... computer-generated” or even “fabricated using photographs of nude children taken from legitimate sources.” Nolan held that the mere possibility, unsupported by evidence, that the images could have been produced by use of technology and not using real children was not sufficient to reject a lower court’s ruling founded on reasonable inferences derived from experience and common sense.
Rodriguez-Pacheco, 475 F.3d at 439 (citations omitted).

¶14      In this case, the jury was handed pictures that look, for all the world, like photographs of children engaged in sexually explicit conduct. The jury by its verdict drew the inference that the pictures were photographs of children engaged in sexually explicit conduct. Though Van Buren urges that one could also infer that the images were computer-generated, the task of an appellate court is not to search for inferences inconsistent with guilt. It is to accept the inferences drawn by the trier of fact “within the bounds of reason.” The jury concluded that the images here are just what they appear to be, and by no stretch of the imagination could we call that conclusion “incredible as a matter of law.”

Possession of Child Pornography, § 948.12(1m) – Jury Instructions – Unanimity: Agreement as to Which Picture Was Shown and Was Harmful
State v. Jason K. Van Buren, 2008 WI App 26, PFR filed 1/23/08
For Van Buren: Waring R. Fincke
Issue/Holding: Counsel’s failure to request a specific unanimity instruction with respect to juror agreement on which of the identified pictures was both harmful and shown to the victim was not prejudicial:
¶22      We reject this claim because Van Buren has not demonstrated the prejudice necessary to show ineffective assistance of counsel. The cases cited by Van Buren state that a criminal defendant is entitled to a jury trial, see State v. Cleveland, 50 Wis. 2d 666, 670, 184 N.W.2d 899 (1971), and jury unanimity, see State v. Koput, 134 Wis. 2d 195, 203-04, 396 N.W.2d 773 (Ct. App. 1986), rev’d on other grounds, 142 Wis. 2d 370, 418 N.W.2d 804 (1988). They do not relieve a defendant claiming ineffective assistance of the burden to show that, because of counsel’s unprofessional errors, the verdict is unreliable. In this case, Van Buren must show that there was a “reasonable probability” that the lack of a specific unanimity instruction resulted in a non-unanimous jury verdict. See Strickland, 466 U.S. at 694.

¶23      He has not so shown. The victim identified the two pictures nearly simultaneously, and both are undisputedly photos of “naked kids.” There is simply no basis in the record to suggest that the jury might have believed the victim with respect to one of the images and not the other, or found one of the images harmful and the other not. Our confidence in the verdict, and its unanimity, is not at all undermined. See id.

§ 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
On-line Brief (COA): http://www.wisspd.org/html/appellate/briefbank/briefs/002545.pdf
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. Stat. § 948.11(2) is already a matter of settled law. In both Thiel and Kevin L.C., this court and the court of appeals, respectively, previously addressed the constitutionality of § 948.11(2), and we decline Trochinski's invitation to reverse those decisions based on recent cases, which are distinguishable on the basis of personal contact. The scope of § 948.11(2) is fundamentally different than the situations in Zarnke and Weidner, because under the statute there is a reasonable expectation of face- to-face contact.... We reiterate that the personal contact between the perpetrator and the child-victim is what allows the State to impose on the defendant the risk that the victim is a minor.
§ 948.11, Exposure to Harmful Materials via Internet -- Constitutionality
State v. Lane R. Weidner, 2000 WI 52, 235 Wis. 2d 306, 611 N.W.2d 684, on certification
For Weidner: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether § 948.11(2) is constitutional.
Holding: "Wis. Stat. § 948.11(2) is unconstitutional in the context of the internet and other situations that do not involve face-to-face contact. Because the statute does not require the State to prove a defendant's knowledge of the victim's age when disseminating materials deemed harmful to children, Wis. Stat. § 948.11(2) has an impermissible chilling effect on protected speech and is therefore constitutionally invalid." ¶43.
Analysis: Scienter plays an important role in First Amendment jurisprudence. This statute makes it illegal to transmit harmful material to a minor, thereby making the recipient's age the fault line for criminal liability. However, the statute doesn't require that the defendant have known the recipient's minority status, and therefore omits that form of scienter. ¶¶11-12. Instead, the statute creates an affirmative defense, whereby the defendant may prove that he or she reasonably believed the child was 18: this affirmative defense impermissibly shifts what should be the burden of proving the necessary scienter element. ¶1. The court can't save the statute by judicial construction, and urges the legislature to take swift remedial action, "so that the welfare of children and protected First Amendment expression may both be safeguarded and co-exist in harmony." ¶¶38-42. Keep in mind, though, that the invalidation of the statute is limited to "the context of the internet and other situations that do not involve face-to-face contact[.]" ¶38. Thus, the court takes pains to distinguish and "not disturb" a prior court of appeals decision upholding the statute's validity in the context of face-to-face exposure of harmful material. ¶37, citing, State v. Kevin L.C., 216 Wis. 2d 166, 576 N.W.2d 62 (Ct. App. 1997).
Go To SCt Brief
Go To COA Brief
§ 948.12(1m), Possession of Child Pornography – Sufficiency of Evidence, Element of “Possession”
State v. Jack P. Lindgren, 2004 WI App 159, PFR filed 8/20/04
For Lindgren: Stephen M. Compton
Issue: Whether the evidence was sufficient, on the element of possession, to sustain conviction for possessing child pornography, where the defense expert “testified that no evidence of any child pornography had been saved on Lindgren’s computer,” ¶23.
Holding:
¶25. Lindgren's challenge to the concept of possession in the context of computer material has been recently, though not widely, addressed. We take guidance from a federal case where facts and issues reasonably analogous to those here were considered. In United States v. Tucker, 305 F.3d 1193 (10th Cir. 2002), cert. denied, 537 U.S. 1223 (2003), Tucker argued that because the child pornography images were only temporarily displayed on his computer screen and he did not desire the images to be saved on his hard drive, he was not guilty of possession of the images. Id. at 1204. Tucker argued that a computer will automatically save thumbnail pictures to the temporary Internet cache file and that this involuntary process should not be held against the computer user. Id. at 1205.

¶26. The Tucker court was not persuaded, finding that Tucker had control over the files present in his Web browser cache file. …

¶27. We adopt the Tucker court's reasoning. Here, the State's experts testified that Lindgren had visited teen sex Web sites, that five images showed up twice on Lindgren's computer hard drive (once as a thumbnail and once as a larger image), that for images to be saved on Lindgren's hard drive he would have had to click on and enlarge the thumbnail images, and that the only way an image would have been stored on the hard drive was if the computer user tried to save or otherwise manipulate the image by clicking on it. Further, Petersen testified that one of the images was saved to "My Documents" in the "Jack Lindgren" folder, but the others were not because the new operating system overwrote the old one.2 Although Lindgren attempts to paint himself as the victim of computer viruses and unwanted "pop-up" ads, there is sufficient evidence in the record to demonstrate that he knowingly possessed the child pornography images on his computer because he repeatedly visited child pornography Web sites, clicked on thumbnail images to create larger pictures for viewing, accessed five images twice, and saved at least one image to his personal folder. We conclude that the trial court as finder of fact could, acting reasonably, have been convinced by the evidence that Lindgren possessed the child pornography. See Poellinger, 153 Wis. 2d at 504.

§ 948.12, Child Pornography -- Computer Disk Storage
State v. James W. Whistleman, 2001 WI App 189
For Whistleman: Michael J. Devanie
Issue: Whether storage of images on a computer disk satisfies the “pictorial reproduction” element of § 948.12.
Holding:
¶7 … The computer disks taken from Whistleman's residence produce visual images on the computer screen when a person inserts the disks into a computer and clicks on a file. We conclude the disks thus come within the ordinary meaning of "pictorial reproduction."

¶9. We also observe that two of the items preceding "or other pictorial reproduction"-"undeveloped film" and "photographic negatives"-are processed in particular ways to produce a "photograph," and thus are one way to produce a picture of a child, while "motion picture" and "videotape," each created through other and distinct processes, produce pictures of a child on a screen. The legislature's choice of the broad term "or other pictorial reproduction" following various specific items, which are created and processed in different ways in order to produce a picture of a child, indicates an intent to penalize items that are able to readily produce pictures of children engaging in sexually explicit conduct, whatever the particular process or technology. It is not reasonable to conclude that in choosing the broad term "or other pictorial representation," the legislature intended to exclude one particular, and increasingly common, means of storing and producing visual images.

§ 948.12, Child Pornography -- Multiplicity/Unit of Prosecution -- Photographs
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 download a particular image file.9 Therefore, each image file ‘represent[s] a new volitional departure,’ and the charges against Schaefer are different in fact.” ¶50. State v. Multaler, 2002 WI 35, 252 Wis. 2d 54, 643 N.W.2d 437, followed, with this caveat:
¶52. We are not persuaded by Schaefer's effort to distinguish Multaler. In Koller, we explained:
When a defendant complains prior to trial that criminal charges improperly split a single crime into multiple counts because the alleged factual basis does not show a "new volitional departure," the pertinent question is whether the State has alleged facts which, if proven, demonstrate a new volitional departure. However, just because the State has properly alleged facts for purposes of multiplicity analysis does not mean the State can prove the alleged facts. Thus, apart from whether there is a basis for a multiplicity challenge to pretrial allegations, events at trial, or otherwise may suggest that the State is unable to actually prove a new volitional departure supporting multiple charging.
Koller, 2001 WI App [253] at ¶34. We take this opportunity to further clarify the appropriate question when a multiplicity challenge is directed at charging. Restating and modifying the first sentence from ¶34 in Koller: When a defendant complains prior to trial that criminal charges improperly split a single crime into multiple counts because the alleged factual basis does not show a "new volitional departure," the pertinent question is whether the facts alleged by the State, and reasonable inferences from those facts, demonstrate a new volitional departure.

¶53. Schaefer's argument is better suited to a multiplicity objection made during or at the end of trial. Had we a full evidentiary record to review, it is possible that the State's allegations may not withstand a multiplicity challenge. For example, evidence that images were copied wholesale from another disk or computer could convince the trial court that the charges were not different in fact and therefore only one count should be considered by the jury. But here we have only the charging document and the evidence from the pretrial hearing. Under these circumstances, we determine that Multaler is dispositive. Thus, the fact that there were over thirty-nine separate image files "supports a conclusion that [Schaefer] made a new decision to obtain each one." Multaler, 2002 WI 35 at ¶58. Here a reasonable inference from the alleged fact that each photograph was contained in a separate computer file is that Schaefer downloaded each file separately and made a separate volitional decision to retain each file.

Nor does the rule of lenity apply as to the permissible unit of prosecution; rather, there is a presumption that the legislature intended cumulative punishment, Multaler controlling this point. ¶¶54-55. Again, a potentially important reservation, ¶56 n. 11:
For example, if the accused downloads several images at once, that are contained in a single computer file, is that still on par with a traditional photo album or is that more like a magazine, which is generally not divided into separate counts for each picture? See City of Madison v. Nickel, 66 Wis. 2d 71, 83-84, 223 N.W.2d 865 (1974) (single sale of four obscene magazines charged as four obscenity offenses under city ordinance precluding sale of obscene material). Under Wis. Stat. § 948.12, the use of the term "motion picture" indicates legislative intent that possession of one movie is a single offense, although a reel of film could contain thousands of individual images. Similarly, the statute refers to a videotape in the singular form. But what if several movies are copied onto one DVD or videotape? It does not appear that State v. Multaler, 2002 WI 35, 252 Wis. 2d 54, 643 N.W.2d 437, provides a ready answer to such situations
§ 948.12, Child Pornography -- Multiplicity/Unit of Prosecution
State v. James E. Multaler, 2002 WI 35, affirming, 2001 WI App 149
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, there were more than 28 separate image files. In a statement given after his arrest, Multaler admitted that he 'began downloading . . . in the winter of 1998,' thus suggesting that he obtained the image files over a period of time. Even had he downloaded all the image files in a very short period of time, the fact that there were more than 28 separate files supports a conclusion that he made a new decision to obtain each one. Every time he downloaded a new file, he recommitted himself to additional criminal conduct. Each decision to download more child pornography represented a new volitional departure.
¶59. Having determined that the charges are different in fact, we turn to examine the legislature's intent regarding the allowable unit of prosecution. Where charges are different in fact, we presume that the legislature intended multiple punishments. Anderson, 219 Wis. 2d at 751. This presumption is rebutted only by a clear indication of legislative intent to the contrary. Id. We use four factors to determine legislative intent in a multiplicity analysis: (1) statutory language; (2) legislative history and context; (3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishments for the conduct. Id.
.... ¶64. Nothing in the plain language of Wis. Stat. § 948.12 supports Multaler's position that the legislature intended that a computer disk, rather than an image, is the intended unit of prosecution. Rather, the plain language of the statute provides that a possessor of 'any photograph . . . or other pictorial reproduction' has violated the statute. Section 948.12 (emphasis added). The singular formulation of these items covered under the statute modified by the term 'any' is evidence that the legislature intended prosecution for each photograph or pictorial reproduction. In short, the plain language of the statute leads us to the conclusion that for purposes of the second part of the multiplicity analysis each image Multaler possessed could be prosecuted separately.
Unit-of-prosecution result appears to turn on particular wording of statute, which prohibits "pictorial representation"; criminal penalty for "possession of a computer or other visual medium that contains a pornographic image" could lead to different result: State v. Muhlenbruch, Iowa SCT No. 06/05-2028, 2/23/07.
§ 948.12, Possession of Child Pornography -- Scienter Requirement
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 requirement for the offense. He contends that in expressing the intent element regarding the minority of the depicted child in the pornographic materials as "knows or reasonably should know," the legislature created a statute that allows conviction for mere negligence. In Schaefer's view, "reasonably should know" invokes the objective "reasonable man" standard applied in civil tort actions, the result being that Wis. Stat. § 948.12 creates criminal liability for those individuals who lacked actual knowledge but, through ignorance, mistake or accident, failed to exercise reasonable care and possessed pornographic material depicting children. However, we conclude that the statute is not constitutionally deficient with regard to scienter.
The legislative fix, stemming from the overturn of the prior § 948.12 in State v. Joel R. Zarnke, 224 Wis.2d 116, 589 N.W.2d 370 (1999), is ratified. An objective form of scienter – reasonably should know – satisfies a constitutionally minimal scienter requirement:
¶41. Delineating the precise level of scienter in a criminal statute is a policy decision reserved for the legislature. We conclude that, in a criminal statute for possession of child pornography, "reasonably should know" is less than actual knowledge but still requires more than the standard used in civil negligence actions. "Criminal negligence" after all, is defined as "something less than wilful and wanton conduct which, by the law of this state, is the virtual equivalent of intentional wrong." State ex rel. Zent v. Yanny, 244 Wis. 342, 347, 12 N.W.2d 45 (1943).6 The State must show that the defendant had an awareness of certain facts and information that would have caused a reasonable person to conclude that the persons depicted in the materials were minors. The burden is not on the defendant to show that he attempted to ascertain the age of the photographed individuals. Considered in that light, Wis. Stat. § 948.12 is not constitutionally infirm because, as amended, it requires the "some level of scienter" that was lacking in the version of the statute examined in Zarnke.
§ 948.21(1), Neglect, Causing Death – Element of “Person Responsible for Child’s Welfare,” § 948.01(3)
State v. Marketta A. Hughes, 2005 WI App 155, PFR filed
For Hughes: John T. Wasielewski
Issue/Holding:
¶16      We conclude that the plain language of the statute makes clear that a seventeen-year-old employed by a parent to care for the parent’s child can be a person responsible for the welfare of the child. The record reflects that Marketta freely chose to assume responsibility for the welfare of Bryan at her mother’s request. Thus, Marketta became a voluntary caretaker of Bryan and, as such, she was a person responsible for his welfare.
The “person responsible” element is defined by § 948.01(3), ¶12; the only definitional alternative that supports Hughes’ guilt is the last one: “a person employed by one legally responsible for the child’s welfare to exercise temporary control or care for the child.” Hughes wasn’t “employed” in the ordinary sense of the word – she was asked to watch the child by her mother, who was herself doing a favor for an acquaintance (some favor; but that’s a different story). However, the supreme court previously gave a broad construction to the term, in State v. Sostre, 198 Wis. 2d 409, 542 N.W.2d 774 (1996) (live-in boyfriend serving as voluntary caretaker for child satisfies definition; court apparently holding that financial arrangement not necessary to be “employed” under this definition). Nor does it matter that Hughes was 17 years old, given the legislative history, ¶15 (1987 statutory revision removed 18-year-old threshold).
§ 948.21(1), Child Neglect -- Sufficiency of Evidence
State v. Teresa L. Bellows, 218 Wis. 2d 614, 582 N.W.2d 53 (Ct. App. 1998)
For Bellows: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
...The State was required to prove that: (1) Bellows was responsible for the welfare of her three children; (2) she intentionally contributed to their neglect; and (3) the children were under the age of eighteen. See Wis J I-Criminal 2150. Only the second element was contested and now forms the basis for Bellows' contention that there was insufficient evidence to support her conviction. Bellows argues that there was no evidence presented that the children lacked care, food, clothing or medical or dental care. She states that "[t]he conditions in [her] home did not seriously endanger her children" and maintains that "no reasonable jury could have concluded that she was seriously endangering her children."

...

... It is apparent from the testimony of the State's witnesses that the lack of care provided for the numerous animals and birds in the house resulted in unsanitary conditions. The odor of urine was overpowering; urine soaked the mattresses and piles of feces were evident throughout the house. It was not unreasonable for a jury to conclude that living conditions such as these could cause the children to become neglected. We cannot say that "[no] possibility exists that the jury could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt." See Alles, 106 Wis.2d at 377, 316 N.W.2d at 382. Therefore, we may not overturn the verdict.

Crimes: § 948.22(2) (2001-02), Non-Support – Elements – “Court of Competent Jurisdiction”
State v. Thomas Scott Bailey Smith, Sr., 2005 WI 104, reversing 2004 WI App 116
For Smith: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding1:
¶15      Here, too, we examine the statute providing for the crime, Wis. Stat. § 948.22(2), to determine the elements of the crime of failure to pay child support, and we focus on the conduct that is prohibited therein. Section 948.22(2) in pertinent part provides, "Any person who intentionally fails for 120 or more consecutive days to provide spousal, grandchild or child support which the person knows or reasonably should know the person is legally obligated to provide is guilty . . . ." On the face of § 948.22(2), the elements of this crime are:  (1) an intentional failure to provide child support; (2) that continued for 120 or more consecutive days; and (3) actual or constructive knowledge of the legal obligation to provide support. The Jury Instructions Committee has come to the same conclusion, proposing these same three elements in Wisconsin Jury Instructions——Criminal 2152. [7]
[7]  …. We have recognized that the work of the Wisconsin Criminal Jury Instructions Committee, while not precedential, may be persuasive. State v. Olson, 175 Wis.  2d 628, 642 n.10, 498 N.W.2d 661 (1993).
Issue/Holding2: Although “child support” is defined by § 948.22(1)(a) as an amount ordered “by a court of competent jurisdiction,” that “phrase is not an element of the crime of failure to pay child support under § 948.22(2),” and therefore its existence need not be submitted in the jury instructions, ¶16.
It’s possible to agree with the result (whether a court of competent jurisdiction issued an order is not for the jury to decide) and yet find the court’s reasoning less than satisfying. Clearly, one of the elements of non-support is knowledge of the legal obligation to provide support. How can a support obligation not be an element? In theory, you could be misinformed as to your obligation – you would then know that you were obliged to pay some amount, but that knowledge would be incorrect: is the court seriously saying that you could still be guilty, given that an order by a “competent” court isn’t an element? That can’t be right, and the court can’t be saying as much.

Something’s fundamentally missing from the court’s analysis; to see what it is, you have to start at the beginning, which is precisely where the court goes astray. The court begins its analysis with § 939.12 (“A crime is conduct….”), as previously applied by State v. McAllister, 107 Wis. 2d 532, 535, 319 N.W.2d 865 (1982) (prior OWI conviction is penalty enhancer, not element) and draws this conclusion:

… whether a court of competent jurisdiction issued the child support order [] focuses on the characteristics of a court. By contrast, elements of a crime generally are focused on a defendant's conduct. See McAllister, 107 Wis. 2d at 535, 538. … All of the acts described in subsection (2) focus on the conduct of the defendant, while the phrase relied on by Smith focuses on the characteristics of a court. This leads us to conclude that the phrase is not an element of the crime of failure to pay child support under § 948.22(2).
But this analysis simply can’t be correct. A particular mental state isn’t “conduct,” yet is of course commonly an element; indeed, scienter is an element of this very offense. Status offenses include elements that aren’t “conduct” (such as “felon” in possession of a firearm). For that matter, the harm suffered by a victim can’t fairly be termed “conduct” – it is, rather, the consequence of conduct. No need to elaborate further; it’s perfectly clear that simply labeling the issue non-conduct isn’t decisive as to whether or not it’s an element. And it’s equally clear why § 939.12 doesn’t advance the analytical ball: of course, crime is conduct-based – that’s simply another way of stating the obvious, that we don’t countenance thought crimes, and in that sense the definition is virtually tautological. The court’s approach, then, is much too concrete, and distinctly unhelpful.

This doesn’t mean the court’s conclusion was necessarily incorrect. We should first pause to recognize that we’re in the midst of a sentencing revolution that affects the discernment of “elements” of any given crime – the Apprendi-Booker-Blakely line of cases – but pause further to acknowledge that this case doesn’t quite implicate those principles. (No claim can be made that proof of “court of competent jurisdiction” was needed to impose punishment beyond a statutory maximum penalty.) However, the ferment from those cases helps leaven the analysis in this one: as one especially astute commentator has recently noted, “the fact-law distinction” which allocates roles respectively to the jury and the judiciary under the Seventh Amendment in civil cases might have application to Sixth Amendment jurisprudence. (Paul F. Kirgis, “The Right to a Jury Decision on Sentencing Facts after Booker: What the Seventh Amendment can Teach the Sixth.”) Kirgis’ analysis is worth reading, if you’ve got the time, but his basic point is that the fault line between fact and law isn’t always easy to discern, but is informed by a pragmatic, somewhat intuitive understanding of which body “is best suited to decide a particular issue. … (W)hen judges use the terms ‘fact’ and ‘law,’ they are using those terms conventionally to describe a normative conclusion that a particular matter should be decided by a judge (law) or should be decided by a jury (fact).” That gets to the nub of the present problem, doesn’t it? Deciding whether a court exercised “competent jurisdiction” is so legally technical, that it only makes sense to have it determined by judge rather than jury. In other words, the law-fact, and not the conduct-characteristics, distinction ought to be decisive. For a case illustrating this principle, see State v. Leist, 141 Wis.2d 34, 37-38, 414 N.W.2d 45, 46-47 (Ct. App. 1987) (trial court empowered to define an element; "It is not within the province of the trial court, however, to determine as a matter of law that certain facts before the jury fit within the given definition. In that situation, the trial court is applying the facts to the law ..."). In any event, this is a complex area that will bedevil the courts so long as they embrace the sort of ad hoc approach undertaken in Smith. See, e.g., U.S. v. Smith-Baltiher, 9th Cir No. 03-50375, 9/9/05, for the idea that, because alienage is element of offense of illegal entry, the defendant" is entitled to have the jury determine that question at trial," citing, not suprisingly, Apprendi; the court, incidentally, rejected an argument that this shouldn't be a jury question because citizenship is a status decided exclusively by the AG. And compare State v. Miller, 156 Wn.2d 23; 123 P.3d 827 (2005) (validity of DV no-contact order not element of offense of violating the order, but instead "is a question of law appropriately within the province of the trial court to decide as part of the court's gate-keeping function"; court's analysis seems driven by fact-law distinction noted above); People v. McGee, Cal SCt No. S123474, 5/22/06 (court rather than jury determines whether record of earlier proceeding establishes defendant's conviction of qualifying sentencing enhancer: "Such a function is a task for which a judge is particularly well suited and is quite different from the type of factual inquiry —assessing the credibility of witnesses or the probative value of demonstrative evidence — ordinarily entrusted to a jury").

("The distinguishing characteristics among questions of law, questions of fact, and mixed questions of law and fact are uniquely examined by the authors of a monograph developed for the Federal Judicial Center entitled The Analysis and Decision of Summary Judgment Motions," as quoted at length in State v. Kendall, WV SCt No. 32689, 11/29/06, fn. 2.)

This approach doesn’t necessarily make court-of-competent-jurisdiction an element. If it were an element, then the holding of United States v. Gaudin, 515 U.S. 506 (1995) (at least arguably doing away with the fact-law distinction so far as elements are concerned, and absolutely requiring submission of all elements to the jury) could well dictate relief, as the court of appeals held. Indeed, one might surmise that the court’s slapdash approach was informed by concern that treating the matter as anything remotely like an element would trigger Gaudin. But the court could have used the fact-law distinction, nonetheless, as an aid of statutory construction: it would be unreasonable to assume that the legislature intended to delegate such an obviously legal matter to the jury. As noted above, you can’t really read out of the statute an elemental requirement of proof of a court order, but whether the order was issued by a “competent” court is a definitional problem, one of law determined by the judge.

Interestingly, the court goes on to suggest that however defined, “court of competent jurisdiction … is a question of law, to be determined by a court,” ¶20, although any dispute of historical fact as to the issuing court’s jurisdiction would be for the jury to resolve, id. and fn. 10. The court, that is, ultimately adopts a fact-law-distinction analysis, without quite saying so explicitly.

Variation on this overall theme: Medley v. Runnels, 9th Cir No. 05-55295, 11/1/07. Medley's offense involved discharge of a firearm; he used a flare gun; the trial court's instruction the jury that a flare gun is a firearm unconstitutionally took from the jury determination of that element, entitling him to habeas relief. The habeas court rejected the state's argument that "fiream" is a "legal term of art" and that the instruction merely provided a legal interpretation of the term (sound familiar?). The holding, however, is actually limited: the state could have defined firearm to include flare gun, in which case the instruction would have been proper; but it didn't, and defining it thusly after the fact would be an unconstitutional expansion of the crime.

One final observation, utterly tangential. Suppose an element was omitted from the jury instructions. Current caselaw says that the omission is subject to harmless analysis, Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827 (1999), but there’s reason to revisit that conclusion in light of Blakely, et al. Freeze v. State, Ind. App. No. 20A03-0412-CR-562, 5/18/05:

We believe the validity of Neder might be short-lived, in light of the seismic shift in the Supreme Court’s Sixth Amendment jurisprudence since 1999. Specifically, Justice Scalia wrote a vigorous dissent in Neder, joined in part by Justice Stevens and fully by Justices Ginsburg and Souter – in other words, four of the five members of the Blakely majority. Justice Thomas, the fifth Blakely justice, was in the Neder majority. After Neder, and beginning at least with Apprendi, he has repudiated a narrow interpretation of the Sixth Amendment jury trial right and has joined Justice Scalia’s broad view of it.
Crimes: § 948.22(2) (2001-02), Non-Support – “Court of Competent Jurisdiction” – Claim Preclusion
State v. Thomas Scott Bailey Smith, Sr., 2005 WI 104, reversing 2004 WI App 116
For Smith: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding: Smith’s unsuccessful prior challenge to the court support order bars him, under principles of claim preclusion, from challenging the validity of the order in the present non-support prosecution, ¶¶21-23.
The court invokes this principle as justification for rejection of Smith’s requested jury instruction on whether the issuing court exercised “competent jurisdiction.” Given the court’s holding that this matter is not an element, and is not to be submitted to the jury, this discussion appears to be dicta. However, to the extent that “court of competent jurisdiction” must indeed be resolved, though by the judge and not the jury, then the discussion becomes meaningful. The lesson is probably that it may not pay to directly challenge the order – the court “agree(s) that an order entered without jurisdiction is void and may be challenged at any time,” ¶22 – because if you do and are unsuccessful then you’re bound by that result.
§ 948.22(2), Nonsupport -- "involuntary" payment via intercepts of tax refunds.
State v. David J. Lenz, 230 Wis.2d 529, 602 N.W.2d 173 (Ct. App. 1999).
For Lenz: Steven D. Phillips, SPD, Madison Appellate.
Issue: Whether intercepts of tax refunds can be considered payments toward support obligations.
Holding: The nonsupport statute doesn't require that payments be made "voluntarily," and tax refund intercepts therefore count.
Analysis: "The intercepts are payments from Lenz's assets. Although he did not directly make them, we agree that payments made by intercept should be deemed support payments by the parent. The refunds were intercepted during and applied to specific 120-day periods in 1994, 1995 and 1996. It is sufficient that sums were paid to meet Lenz's support obligation. The charges, to the extent they include within the 120-day period charged, a month during which intercepts were received and applied, should be dismissed."
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§ 948.22, Nonsupport -- Modification of Support Payments – Factors: Incarceration
State v. Terry L. Dumler, 2003 WI 62, affirming summary order
For Dumler: Todd G. Smith
Issue/Holding:
¶ 1.… The central issue before this court is whether the circuit court erroneously exercised its discretion in refusing to reduce Dumler's child support payments in light of Dumler's incarceration and resulting change in income. Although we find it appropriate for a court to consider incarceration when reviewing a request for modification, we find that the fact of incarceration by itself neither mandates nor prevents modification. Incarceration is one factor that should be considered, but the determination should be made on a case-by-case basis, looking at the totality of the relevant circumstances. We conclude that under the circumstances presented in this case, the circuit court properly exercised its discretion under Wis. Stat. § 767.32 (1999-2000) in finding that the facts in this case did not constitute a substantial change in circumstances sufficient to warrant modification.
(Dumler is a roofer. His support order is $543 per month. His prison wages are $45 per month, after deductions for court fines. He’s serving a three year sentence, and absent support reduction he’ll have a support arrearage of $25,000 when released. What factors convinced the court to keep Dumler in an arrearage slough so deep he’ll never get out? Well, the court pays lip service to certain irrefutable platitudes: a support obligor shouldn’t have incarceration rewarded with reduced obligation, ¶30; parents are duty-bound to support their children, ¶31; public policy stresses the importance of child support, ¶32. All true enough, but equally applicable to all cases. Indeed, these considerations lead to nothing more than another incontestable conclusion drawn by the court: incarceration doesn’t automatically support reduction in support. ¶34. (“Incontestable,” because Dumler doesn’t seem to argue otherwise, nor does the dissent, ¶50.) Turning to the specific facts, the court acknowledges that $25,000 – the arrearage upon release – “is a great deal of money,” but not so much so that payment over time would be unreasonable. ¶36. Dumler’s incarceration won’t “prohibit his reentry into the workforce.” ¶44. Moreover, at the time of his request for support modification, Dumler had little more than one year to serve, leading the court to suggest “that a longer period of incarceration may well tip the balance in favor of modification and make the refusal to modify payments an erroneous exercise of discretion on the part of the circuit court.” ¶46 and id., n. 12. These are all pretty tepid reasons for upholding the refusal to reduce support – which isn’t to say that the court plainly means to rubber-stamp refusals to modify; to the contrary, that the court’s affirmance is so labored suggests an outer boundary and not a laissez passer to uncharted territory.)
§ 948.22, Nonsupport -- inability to pay.
State v. Christopher M. Clutter, 230 Wis.2d 472, 602 N.W.2d 324 (Ct. App. 1999).
For Clutter: Martha K. Askins, SPD, Madison Appellate.
Issue: Whether the nonsupport defense of inability to pay is viable by showing "lack of financial resources alone."
Holding: "(L)ack of financial resources alone is insufficient to demonstrate inability to pay."
Analysis: Inability to pay is a defense to nonsupport. Clutter, on postconviction motion, showed "that he was living in poverty. ... However, the affirmative defense of inability to pay requires more." Apparently, the defendant must show no "earning capacity," for medical or other reasons. "If a defendant has the capacity to become gainfully employed and realize earnings it is no valid defense to felony nonsupport."
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§ 948.22(2), Nonsupport -- statute of limitations, unit of prosecution.
State v. David J. Lenz, 230 Wis.2d 529, 602 N.W.2d 173 (Ct. App. 1999).
For Lenz: Steven D. Phillips, SPD, Madison Appellate.
Issue: Whether a charge of § 948.22(2) nonsupport based on arrearages accrued more than six years prior to the charge is barred by the statute of limitations.
Holding: The crime of nonsupport is complete after each 120-day period of intentional failure to pay, including arrearages as well as current obligations, and continues until he or she no longer intentionally fails to pay.
Go To Brief
§ 948.22(2), Nonsupport --statute of limitations, unit of prosecution.
State v. Ronald L. Monarch, 230 Wis.2d 542, 602 N.W.2d 179 (Ct. App. 1999).
For Monarch: Craig S. Lambert.
Issue: Whether a charge of § 948.22(2) nonsupport based on arrearages accrued more than six years prior to the charge is barred by the statute of limitations.
Holding:: The crime of nonsupport is complete after each 120-day period of intentional failure to pay, including arrearages as well as current obligations, regardless of whether or not the child has attained the age of majority; and continues until he or she no longer intentionally fails to pay.
Analysis: This is an interlocutory appeal, challenging 15 counts of nonsupport, § 948.22(2), based on failure to pay arrearages accruing 2/20/93-10/31/98. Monarch argues that the charges are barred by the 6-year statute of limitations, § 939.74(1), theorizing that nonsupport can only be based on failure to pay a current obligation; and that nonsupport isn't applicable to arrearages accruing after the child reaches the age of majority. The court of appeals disagrees. Nonsupport allows one count for each 120-day period that a person fails to pay, State v. Grayson, 172 Wis. 2d 156, 158, 493 N.W.2d (1992), and if so charged the statute of limitations begins running from the end of each 120-day period. Arrearages aren't distinguished from current obligations.. As to Monarch's contention that this would effectively abolish any statute of limitations for the crime, the court has this to say: "The six-year limitation runs from when the crime is complete or, alternatively, from the end of each 120-day period chargeable as a separate offense. The State may not charge a person with nonsupport for those 120-day periods that are more than six years old. The running of the statute on that period does not, however, discharge a person of potential criminal liability for the sum not paid during that period because that sum may be included in a later arrearage order." (In other words, arrearages are like a renewable resource for the prosecution, recycled like paper for future re-use; so as a practical matter there is no statute of limitations.)
Non-Support, § 948.22 – Statute of Limitations -- Support Arrearages, § 893.40 – Accrual upon Entry of Support Judgment
State v. Walter Junior Benjamin, 2003 WI 50, affirming 2002 WI App 89
For Hamilton: Robert A. Ramsdell
Issue/Holding:
¶3. Walter's case raises questions about the application of statutes of limitations to child support collection actions. The issue presented is whether the State, as an assignee of Walter's deceased former wife, filed a timely action to collect child support arrearages in 2000. … Thus, the specific questions of law are: (1) Does Wis. Stat. § 893.40 (2001-2002) apply to independent actions to collect child support not paid after July 1, 1980, and (2) if § 893.40 applies, when does the 20-year limitations period in the statute begin to run?

¶4. We hold that Wis. Stat. § 893.40, which became effective on July 1, 1980, governs the time within which a party may bring an independent action to collect child support arrearages that accumulated after the statute's effective date. In addition, we conclude that, under the statute, an action brought to enforce a child support judgment must be commenced within 20 years of the date when the judgment is entered. The period of limitation begins to run upon entry of judgment, irrespective of whether any payment under that judgment has been missed.

¶5. The last judgment ordering Walter to pay child support was entered on November 9, 1977. Consequently, the State had until November 9, 1997, to commence an action against Walter to collect arrears that accrued after July 1, 1980. Because the State's action to collect arrearages was not initiated until May 2000, it must be deemed untimely and barred under Wis. Stat. § 893.40.

§ 948.31, Interference with Child Custody - Sufficiency of Evidence – Presence of Parent
State v. Isaiah Bowden, 2007 WI App 234
For Bowden: Jason R. Farris
Issue/Holding: Conviction for interference with custody, § 948.31(2), doesn’t require that the child be within the parent’s immediate presence or control:
¶18   The State posits that the withholding method of interference focuses on permission, not being in the parent’s presence. We agree. The withholding method addresses a situation where the person who takes the child has some initial permission to do so. The other two methods speak to situations where the parent has given no permission to the person who “causes a child to leave” or “takes a child away.” See Wis. Stat. § 948.31(2). Bowden’s argument that “causes … to leave” means from the parent’s actual presence suggests that parental custody ends when the child is out of the parent’s presence. Without commenting on the merit of that position, to adopt it would require that we add words to the statute that are not there. We decline to do so. See Samuel, 240 Wis. 2d 756, ¶35.

¶19   Reviewing the evidence in the light most favorable to the verdict, we conclude that Bowden caused the boys to leave their mother within the meaning of the statute. Bowden approached the boys, drew them into conversation by means aimed at disarming children and, despite being told they had to go home, insisted they deviate from their route and follow him. The boys complied out of fear, a fear that was evident to the four occupants of the house. The brothers reiterated their mother’s rule about being home on time and that they would be grounded. Bowden overrode their resistance and persuaded them to act counter to their mother’s directives and authority. It is undisputed that their mother neither gave the boys permission to deviate from this directive nor Bowden permission to cause the boys to deviate from it. Regardless of whether Bowden’s conduct was sweetened with sports talk and basketballs, it amounts to mental manipulation of a child by doing things to persuade the child to leave the parent. See Samuel, 240 Wis.  2d 756, ¶37.

§ 948.31, Interference with Child Custody: Elements, Generally
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding:
¶37      For Campbell to be convicted of interfering with custody of Cody, the State had to prove five elements: (1) Cody was younger than 18 years; (2) Denise had legal custody of Cody under a court order in an action for divorce; (3) Campbell took Cody from Denise and withheld him from Denise without her consent for more than 12 hours past the time allowed by the custody order; (4) Campbell took Cody away from Denise intentionally; and (5) Campbell knew that Denise had legal custody of Cody under a court order and knew that Denise had not consented to him withholding Cody. See Wis JI——Criminal 2166.  Campbell asserts Denise never had legal custody of Cody, which implicates the second and fifth elements.
§ 948.31, Interference with Child Custody: Elements, "Legal Custody" – Collateral Attack on Custody Order
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding: To attack a custody order as void, in defense against interference with child custody, § 948.31, “the family court would have had to lack subject matter jurisdiction or personal jurisdiction, or Campbell would have had to receive inadequate notice of the divorce proceedings,” ¶46.
Campbell argued that the custody order was procured by fraud, because the mother (who was then married to Campbell) obtained an order of adoption from a Missouri court but withholding her status at the time as a Wisconsin resident. Ultimately though, the parents were divorced in Wisconsin, where a family court entered the custody order Campbell was accused of interfering with. Because the parents were residents of Wisconsin when the divorce commenced, the family court had subject matter jurisdiction; nor is there any dispute that the family court had personal jurisdiction over Campbell, ¶48.
¶49      Even if the family court commissioner erred in granting custody and primary placement to Denise, Campbell had to abide by the terms of the custody order until he succeeded in reversing it through the applicable review process. See Orethun, 84 Wis. 2d at 490 ("Where a court has jurisdiction over the subject matter and the parties, the fact that an order or judgment is erroneously or improvidently rendered does not justify a person in failing to abide by its terms."); Anderson v. Anderson, 82 Wis. 2d 115, 118-19, 261 N.W.2d 817 (1978); cf. Kett, 222 Wis. 2d at 128 ("A voidable judgment . . . has the same effect and force as a valid judgment until it has been set aside.").

¶50      Since Campbell's allegation of fraud, even if true, cannot deprive the family court of subject matter jurisdiction or personal jurisdiction, and cannot render the custody order void, evidence of Denise's alleged fraud cannot negate an element of interference with custody.

§ 948.31, Interference with Child Custody: Defense -- Collateral Attack on Validity of Custody Order, as Procured by Fraud
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether a § 948.31 defendant is entitled to raise a common-law privilege defense against the element of “legal custody” by collaterally attacking the court’s custody order as having been procured by fraud.
Holding:
¶56      There are good reasons not to recognize a common law affirmative defense of fraud to interference with child custody.

¶57      One species of affirmative defense——exemplified by self-defense and the now-abrogated privilege to resist unlawful arrest——that courts recognize arises where a person is faced with the difficult decision whether to commit a crime or suffer an injury not otherwise susceptible to effective redress.  See Hobson, 218 Wis.  2d at 373-80. …

¶58      For similar reasons, no affirmative defense for fraud can justify interference with legal custody of a child unless there is a credible threat of physical harm. … Adequate judicial processes exist to attack an order or judgment for fraud.  In this case, Campbell received a de novo hearing on the family court order in the circuit court. See Wis. Stat. § 757.69(8). If he had fully pursued the de novo hearing, he would have received a decision, and he could have sought an appeal of an adverse determination. …

¶59      Recognition of an affirmative defense entails the balancing of competing policy considerations. We believe the legislature properly balanced the competing policies when it established four affirmative defenses to interference with legal custody of a child. See Wis. Stat. § 948.31(4)(a). …

¶60      None of these legislatively created affirmative defenses applies in this case. …

¶62      Under the facts of this case, we refuse to recognize a common law affirmative defense of fraud. …

A fact-specific result, then, that doesn’t really resolve the general problem of whether or when you can collaterally attack a court order or judgment in defense of a criminal charge. The court notes: “Though the court of appeals has stated in criminal cases that a judgment or order may be collaterally attacked if procured by fraud, the court of appeals has never applied the rule in these cases,” ¶55. The certification asked the supreme court to determine whether there is indeed “a fraud exception to the general rule which bars a collateral attack against an order or judgment of another judicial body in the context of a criminal proceeding[.]” The court says that its “holding does not eviscerate the Bouzek rule [which recognizes a general fraud-exception to the collateral attack bar]; it helps define and give substance to the Bouzek rule,” ¶62; but that is true only in the negative sense that the court finds no such exception “under the facts of this case.” It might be worth pausing to recall that courts don’t seem at all hesitant to find a fraud-based exception to finality when the defendant benefited from the fraud— e.g., State v. Ary L. Jones, 2002 WI App 208, ¶14 (“The rule we adopt in Wisconsin, therefore, is that when a defendant makes a fraudulent representation to the sentencing court and the court accepts and relies upon that representation in determining the length of the sentence, the defendant has no reasonable expectation of finality in the sentence. The court may later declare the sentence void ….”
§ 948.31, Interference with Child Custody/Abduction: Construction of Elements
State v. Stanley A. Samuel, 2001 WI App 25, 240 Wis. 2d 756, reversed, other grounds, 2002 WI 34
For Samuel: Robert R. Henak
Issue: Whether the evidence was sufficient to sustain conviction for interference with child custody, § 948.31(2) and abduction, § 948.30(1)(a).
Holding: "So long as the defendant has had a hand in physically removing the child from the parents' possession, the defendant has taken the child away. This physical removal can be accomplished by driving the child away in a vehicle. The act of asportation means more than just shutting the door behind you. Driving away in a vehicle is part of the continuous act of physical removal. Samuel was directly involved in facilitating Tisha's physical removal by driving her away from the house and from the area. The evidence is sufficient." ¶38. (The same analysis applies to abducting. ¶39.)
§ 948.31, Interference with Custody -- Affirmative Defense
State v. Mark Inglin, 224 Wis.2d 764, 592 N.W.2d 666 (Ct. App. 1999).
For Inglin: Stephen M. Glynn & Robert R. Henak.
Holding: Inglin argues denial of right to offer an affirmative defense to § 948.31(1)(b), namely that his actions were necessary to prevent mental harm to the child. Although his argument "present[s] an intriguing due process theory based on the interplay of § 948.04(2), Stats., and 948.31(4)(a), Stats. É the trial record does not support his premise - that he was denied the opportunity to present his requested affirmative defense." Inglin was allowed to testify without impediment, and his testimony did not establish the affirmative defense he now posits.
§ 948.31, Interference with Custody -- Sufficiency of evidence.
State v. Mark Inglin, 224 Wis.2d 764, 592 N.W.2d 666 (Ct. App. 1999).
For Inglin: Stephen M. Glynn & Robert R. Henak.
Holding: § 948.31(1)(b) penalizes several different actus reus alternatives, including taking a child away, or withholding a child more than 12 hours beyond court approval. Inglin had his ex-wife's consent to take their child on a camping trip to Colorado. He deceived her, though, and fled with the child to Canada. The information charged that he "did intentionally withhold" the child from his ex-wife, but the jury instructions inadvertently invoked the "take away without consent" element - leading Inglin to argue insufficient evidence on appeal, because he had consent to take the child away. The court of appeals agrees with Inglin's operative principle: Even so, the evidence is sufficient. Consent does not exist, under § 939.22(48)(c), if the victim doesn't understand that to which s/he putatively consents due to ignorance or mistake of fact. Inglin's deceit - his knowingly false promise to return the child after a 10-day camping trip - vitiated any consent. (The court acknowledges that a Leg Council Comment ["misconception resulting from false promises" is not covered by § 939.22(48)] contradicts the opinion's analysis. Without exactly saying so, the court in effect relies on the idea that resort to extrinsic aids of statutory construction is impermissible where the statute is clear on its face.)
Contributing to Delinquency of Child, § 948.40(4)(a) – Element of “Child”: Includes 17-Year-Olds 
State v. Patrick R. Patterson, 2009 WI App 161,
For Patterson: David R. Karpe
Issue/Holding:
¶29      We will assume, for purposes of Patterson’s argument, that the definition of “juvenile” in Wis. Stat. § 938.02 applies for purposes of defining “delinquency” in Wis. Stat. § 948.40. Nonetheless, Patterson’s statutory analysis ignores the fact that a seventeen-year-old is only excepted from the definition of “juvenile” for a single purpose, the “purpose[] of investigating or prosecuting” the “person who is less than 18 years of age.” See § 938.02(10m). Here, the question is not whether Tanya S. is a “juvenile” for purposes of prosecuting her, but instead for purposes of prosecuting Patterson. Thus, Tanya S. was a “juvenile” for purposes of Patterson’s prosecution for contributing to the delinquency of a child with death as a consequence. [12]
§  948.40(1), Contributing to delinquency of Minor -- Sufficiency of Evidence -- Intent Element
State v. Luther Williams, III, 2002 WI 58, on certification
For Williams: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: The evidence was sufficient to establish the intent element, and therefore to support conviction, for contributing to delinquency of a minor, §  948.40(1): "The jury reasonably could infer from the evidence that Williams was aware that his participation in illegal gambling with James D. was 'practically certain' to cause James D. to violate the law." ¶80.

Shifra Hearing
-- Procedure.
Jessica J.L. v. State, 223 Wis.2d 622, 589 N.W.2d 660 (Ct. App. 1998).
For defendant: Patricia A. Barrett.
Holding: To obtain in camera inspection of a complainant's counseling or medical records, a defendant is required "to submit evidence that the sought after records are relevant to his or her defense," which means more than mere possibility of helpfulness. The stringent showing required to trigger an evidentiary hearing, State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996), is applicable. The defendant in this case alleged only, in effect, that Jessica was in counseling; this isn't enough, as a matter of law, to require a Shiffra materiality hearing, though the trial court may nonetheless exercise discretion in favor of the hearing. See State v. Shiffra, 175 Wis.2d 600, 499 N.W.2d 719 (Ct. App. 1993).