Updated: 1/27/10

Misconduct in Public Office, § 946.12(3) - Venue
State v. Scott R. Jensen, 2009 WI App 26, PFR granted 6/16/09
For Jensen: Robert H. Friebert
Issue/Holding: The venue statute for certain ethical violations by public officers, which mandates trial “in circuit court for the county where the defendant resides,” is inapplicable to § 946.12(3) unless the case arises from a Government Accounting Board-authorized investigation.
§ 946.12(3), Misconduct in Public Office, Vagueness Challenge
State v. Charles Chvala, 2004 WI App 53, affirmed, 2005 WI 30
For Chvala: James A. Olson, et. al,  Lawton & Cates
Issue/Holding: Section 946.12(3), which proscribes exercising a discretionary power inconsistent with the duties of the defendant’s office (in this instance, a state legislator) is not vague. Though those “duties” aren’t identified in any specific statute, they may be found in various sources. ¶¶12-21.
(Same challenge subsequently rejected, in State v. Scott R. Jensen, Steven M. Foti, and Sherry L. Schultz, 2004 WI App 89, affirmed, 2005 WI 31.)
§ 946.12(3), Misconduct in Public Office, Overbreadth Challenge
State v. Charles Chvala, 2004 WI App 53, affirmed, 2005 WI 30
For Chvala: James A. Olson, et. al,  Lawton & Cates
Issue/Holding: Because § 946.12(3) is aimed at specific conduct (use of state resources for political campaigning), so that any effect on legitimate legislative speech is purely secondary, it isn’t overbroad. ¶24.
(Same challenge subsequently rejected, in State v. Scott R. Jensen, Steven M. Foti, and Sherry L. Schultz, 2004 WI App 89, affirmed, 2005 WI 31.)
§ 946.12(3), Misconduct in Public Office, Speech and Debate Clause Challenge
State v. Charles Chvala, 2004 WI App 53, affirmed, 2005 WI 30
For Chvala: James A. Olson, et. al,  Lawton & Cates
Issue/Holding: Section 946.12(3) doesn’t violate the speech and debate clauses of either state or federal constitution. ¶¶29-41.
(Same challenge subsequently rejected, in State v. Scott R. Jensen, Steven M. Foti, and Sherry L. Schultz, 2004 WI App 89, affirmed, 2005 WI 31.)
§ 946.12(3), Misconduct in Public Office, Separation of Powers Challenge
State v. Charles Chvala, 2004 WI App 53, affirmed, 2005 WI 30
For Chvala: James A. Olson, et. al,  Lawton & Cates
Issue/Holding: Adopting the analytical framework used in United States v. Rostenkowski, 59 F.3d 1291, 1305 (D.C. Cir. 1995) (a United States congressman may be held to the law and rules of Congress), the Senate Policy Manual and supporting written guidelines are sufficiently clear to support § 946.12(3) prosecution of this legislator against a separation-of-powers argument (though his alleged activity in two instances come within rules that are too ambiguously stated to support their prosecution, ¶¶ 58, 64). ¶¶55-77.
Escape, § 946.42 – “Actual Custody” – Dismissal of Pending Charge Upon Transfer from Jail to Hospital for Medical Care, but "Apprehension Request" for Alleged Parole Violation
Meriter Hospital v. Dane County, 2003 WI App 248, affirmed, 2004 WI 145
Issue: Whether issuance of an "apprehension request" for alleged parole violation, following dismissal of pending charges upon jail inmate's transfer to a hospital for treatment, leaves the person in "custody."
... We recently decided that a person did not have criminal status while hospitalized once a trial court stays confinement. State v. Edwards, 2003 WI App 221, __ Wis. 2d __, __ N.W.2d __. We reached that determination in State v. Edwards, which addressed jail credits for hospitalized offenders. An offender subject to an escape charge for leaving the hospital was in "custody" pursuant to Wis. Stat. §946.4291). Id., ¶21. We did not consider the fact that the jail administrator instructed the hospital to notify him when it was time for the hospital to release the offender probative of criminal status. Id., ¶5. Similarly, Gibson was not in custody after the trial court dismissed the charges against him. The State could not have charged him with escape if he had left the hospital. See § 946.42....
Escape, § 946.42 – “Actual Custody” – Effect of Stay of Probation Confinement Order
State v. Rick L. Edwards, 2003 WI App 221, PFR filed 10/24/03
For Edwards: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding: A probationer whose order of jail confinement has been stayed during a period of hospitalization is not in custody for § 946.42 purposes and therefore may not be charged with escape for leaving the hospital and failing to return to jail. ¶21, and distinguishing, id. n. 9, State v. Sevelin, 204 Wis. 2d 127, 554 N.W.2d 521 (Ct. App. 1996).
(Sevelin was determined to be in pretrial “constructive custody” and therefore entitled to sentence credit for time spent under “furlough” from jail to an inpatient substance abuse treatment center. The court, among other things, stressed that the “legislature has unambiguously provided that inmates should receive sentence credit for all medical care[.}” However, the court was also careful to note that there’d be no entitlement to credit if the inmate were released from bond before going to treatment. Though not spelled out by Edwards, that is undoubtedly the point of distinction – Sevelin was being held under a bond order; the order under which Edwards had been held was stayed.)
Bail-Jumping, § 946.49 - Multiplicity - Single Bond, Same Condition but Different Cases
State v. Dana Eaglefeathers, 2009 WI App 2, PFR filed 1/9/09
For Eaglefeathers: Patricia A. Fitzgerald
Issue/Holding: Violation of the same condition in a single bond applicable to two different cases (failure to appear at both preliminary hearings scheduled for the same time and court) supports multiple bail jumping charges:
¶8        The parties do not dispute that the offenses charged against Eaglefeathers are identical in law; he was charged with two violations of the same statute, Wis. Stat. § 946.49. Rather, the dispute is over whether the offenses are identical in fact.  Offenses are different in fact if the offenses “are either separated in time or are significantly different in nature.” State v. Stevens, 123 Wis.  2d 303, 322, 367 N.W.2d 788, cert. denied, 474 U.S. 852 (1985). The test for whether offenses are significantly different in nature “is whether each count requires proof of an additional fact that the other count does not. The offenses are significantly different in nature if each requires a new volitional departure in the defendant’s course of conduct.” Anderson, 219 Wis.  2d 739, ¶20 (citations omitted).

¶11      An offense is different in nature from another offense when it requires proof of a fact that the other offense does not.  Anderson, 219 Wis. 2d 739, ¶20. As the circuit court explained, each count of bail jumping associated with each case would require separate proof by the State. The State would be required to prove that the court notified Eaglefeathers of the preliminary hearing in each case, and that Eaglefeathers failed to appear in each case. Proof of notification and failure to appear in one case would not prove notification and failure to appear in the other. As a result, the two charges were significantly different in nature and therefore were different in fact for purposes of double jeopardy analysis.

The court goes on to say that the resulting presumption of legislative intent to impose cumulative punishments in this context isn’t rebutted, ¶¶15-18. But: “separate” proof? The conditions were contained in a single bond compelling an appearance at prelims “scheduled for the same time” (¶1). In other words, the cases were consolidated as a functional if not formal matter; and, even if that overstates the matter, how would it have been possible for Eaglefeathers to appear at the one but not the other? In the somewhat stilted language of the test: “each requires a new volitional departure in the defendant’s course of conduct”; how is it remotely possible to intentionally fail to appear at one hearing but not the other, when they're both scheduled for the same time and place? The court doesn’t quite get around to saying, but instead merely asserts: “Proof of notification and failure to appear in one case would not prove notification and failure to appear in the other.” Sorry, but that’s just not a self-evident proposition. At least it wasn’t before, but perhaps it is now, but only because of judicial fiat -- or, perhaps, the tendency of the judiciary to think it can suspend elementary laws of physics, in this instance by presuming that someone really can be in two different places at the same time.
Bail-Jumping, § 946.49(1)(a) – “Release from Custody” Doesn’t Mean Release from Custody – Simultaneous Custody in Jail under Cash and Recognizance Bonds Supports Bail Jumping
State v. Travis S. Dewitt, 2008 WI App 134, PFR filed 8/19/08
For Dewitt: William E. Schmaal, SPD, Madison Appellate
Issue: Whether someone simultaneously held under personal recognizance and cash bonds can be guilty of bail jumping for acts committed in the jail.
¶12      … Wis. Stat. § 946.49 provides that someone who “having been released from custody under [Wis. Stat.] ch. 969, intentionally fails to comply with the terms of his or her bond is” guilty of a crime. Dewitt asserts that “release” must mean physical release from custodial confinement, specifically, “the act of liberating or freeing: discharge from restraint.”

¶14      It is true that Wis. Stat. §§ 946.49 and 969.02 do not explicitly define “release,” and perhaps it is fair to say that the common meaning of the word contemplates physical release from custody. However, we interpret statutory language in context, “not in isolation but as part of a whole; in relation to the language of surrounding or closely related statutes; and reasonably, to avoid absurd or unreasonable results.” Kalal, 271 Wis. 2d 633, ¶46. There is one important clue that physical release is not the sole meaning of release in the bond context. The court is permitted to impose “a condition that the defendant return to custody after specified hours.” Wis. Stat. § 969.02(3)(d). Because it would be absurd to conclude that conditions of release would then apply when the defendant was outside the jail, but be “turned off” upon return to custody, it is evident that “release” refers to the defendant posting the bond, be it signature or cash, and need not be accompanied by the defendant’s physical departure from the jailhouse.

¶17      … Here, Dewitt had three bonds. He was able to make bond on the misdemeanor simply by signing it, and he therefore committed himself to its conditions.[4] Dewitt was not obligated to sign the bond, especially if he knew he would not be posting cash bond. Thus, while not physically released, Dewitt was released as contemplated by Wis. Stat. § 969.02 when he fulfilled the signature bond. [5]

Release “need not be accompanied by the defendant’s physical departure from the jailhouse.” As opposed to what other form of “departure”? The court doesn’t quite get around to saying, which is just as well. What the court does do is hypothecate a non-existent absurd result, ¶14. Why, in the first place, would it be absurd to say that in a very narrow category of cases, a defendant while on release from custody can bail jump but not when he’s back in the pokey? The court doesn’t say. Note, though, that this “absurd result” is literally the only support for the result mustered by the court. Besides, the defendant is returning – from release, back to custody; from exposure to bail-jumping liability, to non-exposure. Or, as the court apparently wants to say, returning from a release accompanied by physical departure from jail back to custody in the jail.

The court implicitly recognizes that the defendant has not been “released” if he fails to sign the recognizance bond (¶17). What this means, then, is that “release” is determined solely by whether you’ve signed the bond agreement and not by whether you’ve been, well, released. Why isn't distinguishing statutory liability on just that basis an absurdity? The court doesn't say.

Consider, too, the pretrial detention statute, § 969.035(2), which authorizes a court to “deny release from custody” in certain types of cases. Compare that to the language used in the bail jumping statute, § 946.49(1): “having been released from custody …” The court, however, has just said that “released from custody” does not necessarily mean, released from “physical” custody – which makes the pretrial detention language at best superfluous and at worst comically awkward. The pretrial detention statute clearly means that a defendant may be denied “physical” release, whether or not accompanied by corporeal departure from the jailhouse; use of the essentially identical phraseology in the bail jumping statute strongly suggests the same legislative intent. One statute is aimed at preventing release from physical custody, the other penalizes certain acts committed while on physical release from custody.

In the meantime, while the court sorts out the metaphysics of “physical departure,” the diligent practitioner should be alert to the potential disutility of recognizance bonds. This case offers one example (though fault may hardly be assigned counsel for failing to anticipate a client’s disinclination to follow simple rules). More problematically, no sentence credit is awarded custody served under recognizance alongside cash bond, State v. Beiersdorf, 208 Wis. 2d 492, 561 N.W.2d 749 (Ct. App. 1997). That court suggested the following solution: n. 2:

We note that defense attorneys, in countless cases, do ask trial courts to convert personal recognizance bonds to cash bail when their clients have been arrested and do remain in custody on cash bail on subsequent charges. They do so precisely because they want to assure sentence credit on both offenses. That, however, did not occur in this case. …
Same: State v. Elandis D. Johnson, 2008 WI App 34, ¶32.
Bail-Jumping, § 946.49(1)(a) – Reversal of Conviction on Which Offense Premised
State v. David Richard Turnpaugh, 2007 WI App 222
For Turnpaugh: David P. Geraghty, Michael Sosnay
Issue/Holding: Reversal of the conviction for the crime on which the bail-jumping “was premised” also requires reversal of the bail-jumping conviction, ¶8.
This isn’t to say that bail-jumping requires >conviction on the underlying offense, see, e.g., State v. Kelley L. Hauk, 2002 WI App 226, ¶¶14-19, but there is equally no doubt that the underlying offense must be submitted to the jury and proven beyond reasonable doubt, State v. Wyatt Daniel Henning, 2003 WI App 54, ¶25, reversed on other grounds, 2004 WI 89. It follows (though the court doesn’t spell this out) that if the offense on which bail-jumping is premised wasn’t proven, then bail-jumping necessarily wasn’t proven either.
Bail Jumping, § 946.49(1)(b) – Generally
State v. Daniel Wyatt Henning, 2004 WI 89
For Henning: Steven D. Phillips, SPD, Madison Appellate
¶39. In Wisconsin, bail jumping and the crime underlying a bail jumping charge are distinct and separate offenses for purposes of the Double Jeopardy Clause. State ex rel. Jacobus v. State, 208 Wis. 2d 39, 53, 559 N.W.2d 900 (1997) (citing State v. Harris, 190 Wis. 2d 718, 724, 528 N.W.2d 7 (Ct. App. 1994); State v. Nelson, 146 Wis. 2d 442, 449, 432 N.W.2d 115 (Ct. App. 1988)), review denied 147 Wis. 2d 890, 436 N.W.2d 30 (1988)). These cases conclusively demonstrate that the legislature's purpose in enacting bail jumping laws was to authorize multiple punishments to promote multiple interests. "[B]ail jumping laws are intended not only to deter bail jumping, but also to enhance the effective administration of justice in the courts. . . . [C]ourts impose bond conditions with the intent to protect members of the community . . . and prevent a defendant from violating the law." Jacobus, 208 Wis. 2d at 52.
Bail Jumping, § 946.49(1)(b) – Necessity of Finding of Guilt of Underlying Crime
State v. Wyatt Daniel Henning, 2003 WI App 54, reversed on other grounds, 2004 WI 89
For Henning: Jack E. Schairer, SPD, Madison Appellate
¶25. We appreciate that State v. Hauk, 2002 WI App 226, 257 Wis. 2d 579, 652 N.W.2d 393, review denied, 2002 WI 121, 257 Wis. 2d 122, 653 N.W.2d 893 (Wis. Sept. 18, 2002) (No. 01-1669-CR), holds that a bail jumping conviction premised upon the commission of a further crime does not require proof of conviction of the further crime, but does require "evidence sufficient to allow a reasonable jury to conclude beyond a reasonable doubt that [the] defendant intentionally violated his or her bond by committing a crime." Id. at 19. We think it self-evident that when a bail jumping charge is premised upon the commission of a further crime, the jury must be properly instructed regarding the elements of that further crime. We think it equally self-evident that when a bail jumping charge is premised upon the commission of a lesser-included offense of such further crime, the jury must be properly instructed under the law of lesser-included offenses.
Bail Jumping, § 946.69(1)(b) -- Conviction on Underlying Crime Unnecessary
State v. Kelley L. Hauk, 2002 WI App 226
For Hauk: David D. Cook
Issue/Holding: State need not charge defendant with both bail jumping and underlying crime in order to obtain conviction for bail jumping (i.e., violating bond by committing crime). ¶¶14-18.
¶19 We therefore conclude that as long as there is evidence sufficient to allow a reasonable jury to conclude beyond a reasonable doubt that a defendant intentionally violated his or her bond by committing a crime, that evidence is not required to be in the form of a conviction for the underlying crime.

(Note: Court disavows earlier, broad definition of "crime" for purposes of bail jumping, see State v. West, 181 Wis. 2d 792, 796, 512 N.W.2d 207 (Ct. App. 1993); instead, definition of "crime" specified in § 939.12 is to be utilized. ¶18 n. 3.)
Bail jumping - sufficiency of evidence - no drug consumption, positive urine test.
State v. Louis Taylor, 226 Wis.2d 490, 595 N.W.2d 56 (Ct. App. 1999).
For Taylor: Donald T. Lang, SPD, Madison Appellate.
Holding/Analysis: Taylor was bailed out after his arrest, conditioned on not consuming illegal drugs or committing any offense. He failed a drug screen and was charged with and convicted of bail jumping. The court finds that the positive urine test, standing alone, supplies proof of the offense. The court concedes that possession of an illicit substance requires proof of something more than the substance's presence in a person's bloodstream. Citing State v. Griffin, 220 Wis. 2d 371, 584 N.W.2d 127 (Ct. App. 1998). Bail jumping, though, focuses on violation of the bond condition, not the underlying act. The issue, that is, is Taylor's consumption and not his possession of the substance, something proved by the test result. But bail jumping also requires intent, whether the defendant knew the bond's terms, and knew that s/he wasn't complying. Taylor signed the bond agreement, thereby supporting an inference he knew about the condition. The more interesting question is whether he knowingly violated it. The court finesses this point - Taylor knew he'd be screened for drug use, and he therefore knew that any drugs he ingested would show up. This doesn't quite get at whether Taylor knew he was ingesting an illicit substance. What if he unknowingly ingested a spiked substance? Or inhaled second-hand smoke? The court merely presupposes that the substance ended up in his bloodstream as the result of an intentional act, when that is the question. The question in Griffin was knowing possession; here it is knowing consumption. The court offers no convincing rationale as to why mere bloodstream-presence is enough in one instance but not the other.
Go To Brief
Bail Jumping -- Condition Restricting Contact with Individual
State v. Peter J. Schaab, 2000 WI App 204, 238 Wis. 2d 598, 617 N.W.2d 872
For Schaab: Michael G. Artery
Issue: Whether the evidence supported bindover on bail jumping, where the allegedly violated bond condition allowed Schaab to have "incidental contact at work" with an individual, and Schaab was seen talking to the individual at the work site after Schaab was no longer employed there.
Holding: Bail jumping requires intentional violation of a bond condition, ¶9; the threshold question is the scope of the prohibition of the bond language itself, not whether the defendant thought s/he was violating the bond, ¶¶13-14; the "at work" phrase was so broad that it permitted contact with the individual where he was working even though Schaar was no longer himself "at work" there, and, because the contact was indisputably "incidental," bindover wasn't supported. ¶15.
Bail Jumping - Unit of Prosecution.
State v. Daniel Anderson, 219 Wis.2d 739, 580 N.W.2d 329 (1998), reversing State v. Anderson, 214 Wis. 2d 126, 570 N.W.2d 872 (Ct. App. 1997).
For Anderson: Jack E. Schairer, SPD, Madison Appellate.
Issue: Whether violating different conditions of a single bond supports multiple bail jumping counts.
Holding: Anderson, released on an otherwise unrelated case, was ordered as a condition of bail not to drink or have contact with the victim. His violation of both conditions, albeit at the same time and place, supports two convictions and sentences.
The test for multiplicity has two parts, identity in law and fact; and legislative intent. These bail jumping offenses are the same in law, but are "significantly different" in fact, because drinking and contact each "requires a different and new volitional act on the defendant's part." (Note: these are plea-based convictions, yet the court does not discuss waiver. The court has previously held that double jeopardy claims are not subject to waiver. State v. Morris, 108 Wis. 2d 282, 284 n. 2, 322 N.W.2d 264 (1982).) The court's analysis of the facts relies on the complaint, information, and statements at a pretrial hearing. Different-fact counts may still be multiplicitous if there is "clear indication" the legislature intended to allow only a single prosecution. The court's review of the legislative history leads it to conclude otherwise. The dissent (Justices Geske, joined by Justice Bradley and Chief Justice Abrahamson) takes issue with the last conclusion. "The appropriate unit of prosecution," they would hold, "is the bond, not the individual conditions."
Go To S Ct Brief
Bail Jumping -- Commission of New Crime Reversed on Appeal
State v. Ronald A. Hansford, 219 Wis.2d 226, 580 N.W.2d 171 (1998), on certification.
For Hansford: Suzanne Hagopian, SPD, Madison Appellate.
Issue: Whether a bail jumping conviction may be sustained where based solely on commission of a new crime while out on bond, and the new crime is reversed on appeal.
Holding: In such a situation, the evidence is insufficient as a matter of law.
Go To S Ct Brief
Escape, § 946.42 – “Custody” – Ch. 980 Commitment

State ex rel. Michael J. Thorson v. Schwarz, 2004 WI 96, affirming unpublished decision of court of appeals

For Thorson: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Someone being held in connection with ch. 980 proceedings is not subject to the escape statute, § 946.42, for absconding from that custody: "¶28 … (T)here is no incorporation of Chapter 980 into Wis. Stat. § 946.42. We refuse to create a prosecutable offense for escape that the clear language of the statute does not authorize."
Escape, § 946.42 -- "Actual Custody"
State v. Deborah J. Zimmerman, 2001 WI App 238
For Zimmerman: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether someone in the custody of a probation or parole agent “is in actual custody” for purposes of the escape statute, § 946.42.
¶5. To be guilty of escape, Zimmerman must be found to be in custody. Wis JI-Criminal 1773. The relevant language of the escape statute defines custody to include "without limitation actual custody of an institution ... or of a peace officer or institution guard and constructive custody of prisoners ... temporarily outside the institution ...." Wis. Stat. § 946.42(1)(a). The statute also contains an exception: "It does not include the custody of a probationer [or] parolee ... unless the person is in actual custody or is subject to a confinement order under s. 973.09(4)." Sec. 946.42(1)(a)....

¶14. We conclude that the escape statute unambiguously excludes from the definition of "actual custody" the physical custody of probation and parole officers. Therefore, because Zimmerman was in the hands of probation or parole agents at the time she fled, she is not chargeable with felony escape.

Obstructing, § 946.41 – “Lawful Authority” – Jury Instruction, Generally
State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion
For Ferguson: Jefren E. Olsen, SPD, Madison Appellate
¶31      Because "lawful authority" is an element of obstruction under Wis. Stat. § 946.41(1), if the jury was not properly instructed on the meaning of "lawful authority," given the facts presented to the jury, the circuit court erred. See Harvey, 254 Wis. 2d 442, ¶23 ("[J]ury instructions that have the effect of relieving the State of its burden of proving beyond a reasonable doubt every element of the offense charged are unconstitutional under the Fifth and Sixth Amendments.").
Obstructing, § 946.41 – “Incomplete” Instruction, “Lawful Authority” – Harmless Error
State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion
For Ferguson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: Where it was clear not only that Ferguson obstructed the police outside her apartment but also that the jury so found, arguable omission of a “complete” instruction on whether the police acted with lawful authority in entering her apartment was harmless:
¶43      The jury instruction here was a correct statement of the law for police actions outside of Ferguson's home. Therefore, although one may argue that the jury instruction was incomplete because it did not instruct on exigent circumstances, it did instruct relative to the actions of the police in arresting Ferguson once they were outside of her home where she continued her resistive course of conduct.

¶44      It is true that a jury instruction that is incomplete, but is in all other respects a correct statement of the law, may be erroneous. See State v. Perkins, 2001 WI 46, ¶43, 243 Wis. 2d 141, 626 N.W.2d 762 (concluding that the jury instruction was erroneous because it failed to adequately define the element of "threat" for the offense of intentional threat to a judge); see also Rose v. Clark, 478 U.S. 570, 579-80 (1986) (explaining that a jury instruction was erroneous because, while it did instruct the jury on the "malice" element of the charged offense, it erroneously shifted the burden of proof). However, here any incompleteness in the instruction did not fail to define lawful authority.

¶45      Based on the test set forth in Harvey, we conclude that if the failure to instruct the jury on exigent circumstances was error, it was harmless. Under Harris, the police were acting with lawful authority in continuing their arrest of Ferguson as they escorted her down the apartment building stairway and placed her in the squad car. Ferguson did not discontinue her resistive conduct when police removed her from her home. As a result, we can conclude that if the jury had been instructed on exigent circumstances as well as the instruction given, it is clear beyond a reasonable doubt that the jury would have convicted Ferguson of obstruction. Harvey, 254 Wis.  2d 442, ¶48.

The underlying rationale is spelled out a bit more clearly by the 3-Justice concurrence:
¶63      I conclude, however, that even if the entry and arrest for disorderly conduct were unlawful, the obstructing was sufficiently separate in time and location from any potentially unlawful conduct by the police. See State v. Annina, 2006 WI App 202, ¶11, 296 Wis. 2d 599, 723 N.W.2d 708 (citing with approval United States v. Bailey, 691 F.2d 1009, 1017-18 (11th Cir. 1982)) ("[T]he police may legally arrest a defendant for a new, distinct crime, even if the new crime is in response to police misconduct and causally connected thereto.").
Resisting, § 946.41 – “Lawful Authority” – Initially Unlawful Act by Police Doesn’t Preclude Conviction for Defendant’s Subsequent Conduct
State v. Anna Annina, 2006 WI App 202
For Van Hout: Robert R. Henak
Issue/Holding: Although police entry into the defendant’s house was pursuant to a search warrant later declared to be invalid, the defendant’s acts in response to that entry amounted to disorderly conduct which did allow for an arrest under lawful police authority; defendant could therefore be convicted for resisting a lawful arrest for disorderly conduct, an event separate and apart from any resistance to the invalid warrant.
The court says, ¶18, that it will leave for another day the question of reconciling State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998) (“a private citizen may not use force to resist peaceful arrest by one he knows or has good reason to believe is an authorized peace officer performing his duties, regardless of whether the arrest is illegal”) with § 946.41(1). See also U.S. v. Sledge, 8th Cir No. 06-1480, 9/7/06 (“resistance to an illegal arrest can furnish grounds for a second, legitimate arrest”). Though it didn’t come up in Annina, it follows from its result (and other authority such as Sledge) that the lawful arrest severs any connection between seizure of evidence and the underlying illegal police conduct, so that suppression isn’t available.
Obstructing / Resisting, § 946.41 – "Lawful Authority," Suspect's "Evasion and Flight"
State v. Charles E. Young, 2006 WI 98, affirming 2004 WI App 227
For Young: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: Refusal to obey an officer’s command to halt reinforces extant reasonable suspicion to stop the individual:
¶73      Officer Alfredson testified that after he ordered Young to return to the car the first time, Young "turned and started walking away." We acknowledge that people may have the right to disregard the police and walk away without giving rise to reasonable suspicion. …

¶74      Plainly, however, a person who disregards a police officer's order assumes the risk that the officer cannot establish that he had reasonable suspicion for an investigatory stop. The person who believes he is exercising his Fourth Amendment rights by disregarding the officer may be subjecting himself to criminal prosecution if the officer has reasonable suspicion to make a stop. [20]

¶75      Young's actions were not consistent with disregarding the police presence and going about his business. Young had remained in the car for at least five to 10 minutes. The instant Alfredson illuminated Young's car with the spotlight, Young altered his course of conduct and got out of the car. It is improbable that the timing of Alfredson's appearance and Young's abrupt departure, with no word to the officer, were mere coincidence. Young's action smacked of evasion and flight, which can properly give rise to reasonable suspicion when viewed in the totality of the circumstances. See Wardlow, 528 U.S. at 125. Thus, we conclude that Young's evasive action, set against the above-described facts, reinforced reasonable suspicion.

Read too broadly, the meaning would be: you have the right to walk away from a “consensual” encounter – remember, the court all but says the cop didn’t seize any one at first – but if you do it’ll be regarded as “evasion and flight” and for that reason alone ground for a stop. That can’t be right, and it isn’t (though future courts may be tempted to say it is.) The court previously held that the cop already had reasonable suspicion, ¶64, and even though that holding seems like more than a stretch on the facts, it does limit this discussion on “flight and evasion.” Note the crucial qualifier in the last quoted sentence: “reinforced reasonable suspicion.” Reinforced, not created. In this sense the holding is a somewhat mundane exemplar of the idea that “police avoidance” behavior is a factor in reasonable suspicion calculus but alone isn’t enough for reasonable suspicion, e.g., State v. Alisha M. Olson, 2001 WI App 284, ¶8. One other, factual detail: Young got out of the car, the cop ordered him back in, Young began to walk away, the cop issued a second order and then Young started running, ¶11. Once he began running his behavior could be characterized as “headlong flight,” which under Wardlow is an important factor supporting reasonable suspicion. And yet the court leaves no doubt that Young’s mere walking away, before the second order was enough:
¶76      Because Alfredson had reasonable suspicion before he issued his second command for Young to return to the car, we conclude Alfredson was acting with lawful authority when he issued this second order. Thus, there is sufficient evidence in the record for a jury to have convicted Young of obstruction.
So the court indeed is serious when it says that exercising your right to walk away from a consensual encounter exposes you to obstructing conviction.

Also see discussion here.

Obstructing / Resisting, § 946.41 – "Lawful Authority," Established by Probable Cause to Arrest
State v. Charles E. Young, 2006 WI 98, affirming 2004 WI App 227
For Young: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: By fleeing from a police command to stop, the defendant provided probable cause to arrest for obstructing, and the officer therefore was acting with “lawful authority” under § 946.41(1), ¶¶77-78.
Also see U.S. v. Muhammad, 2nd Cir No. 05-4923-cr, 9/7/06; and U.S. v. Swindle, 407 F.3d 562 (2nd Cir 2005) (mere order to stop doesn't constitute seizure, therefore, an unreasonable order to stop does not violate the 4th amendment, and a stop may be based on events transpiring afterward, such as flight).
Obstructing, § 946.41 – Exculpatory Denial Exception Doesn’t Extend to False Accusation of Others
State v. Brent R. Reed, 2005 WI 53, affirming as modified 2004 WI App 98, and overruling State v. Joseph M. Espinoza, 2002 WI App 51
For Reed: David H. Weber
¶21    … Wisconsin JI——Criminal 1766A (2003) accurately sets forth the elements of obstructing an officer based on giving false information to police as follows: 
1.  The defendant knowingly gave false information to an officer.

2.  The officer was doing an act in an official capacity.

3.  The officer was acting with lawful authority.

4.  The defendant intended to mislead the officer.

¶25 The focus is clearly on what the defendant intended to do by knowingly making false statements, not on the eventual outcome. If the intent was to purposefully deceive, or if the defendant was aware that making the false statement was practically certain to deceive, the statute is satisfied. Whether the police were thwarted, therefore, is immaterial.


¶48 In sum, we conclude that there is no exculpatory denial exception in the obstructing statute. The statute criminalizes all false statements knowingly made and with intent to mislead the police. Although the State should have sound reasons for believing that a defendant knowingly made false statements with intent to mislead the police and were not made out of a good-faith attempt to defend against accusations of a crime, we conclude that the latter can never include the former; knowingly providing false information with intent to mislead the police is the antithesis of a good-faith attempt to defend against accusations of criminal wrongdoing. Accordingly, we overrule Espinoza. Because the complaint in this case is satisfactory, we affirm the decision of the court of appeals and remand the matter to the circuit court for further proceedings consistent with this opinion.

The majority stresses that “our decision today does not overrule, indeed it does not even implicate, Henes v. Morrissey, 194 Wis. 2d 338, 533 N.W.2d 802 (1995), or State v. Hamilton, 120 Wis. 2d 532, 356 N.W.2d 169 (1984),” ¶21 n. 3. In those cases the individual’s silence, including in particular refusal to identify themselves, couldn’t support obstructing charges. But the court now explains that there are two forms of obstructing: making the cop’s job more difficult, and giving false information with intent to mislead (which is apparently a distinct form of the offense; see Wis JI—Crim No. 1766 for the elements). Silence simply isn’t “false information” by definition; and on the facts of those cases there was no proof that the investigation was impeded in any way. This somewhat gratuitous explication isn’t a particularly comforting embellishment of the idea that these cases aren’t being overruled. If it was once possible to argue these cases to mean that obstructing absolutely could not be based on mere refusal to identify oneself, it now may no longer be. Certainly, there is no fifth amendment bar on penalizing such refusal, Larry D. Hiibel v. Sixth Judicial District Court, 03-3554, 542 U.S. __, 6/21/04, but whether our obstructing statute provides adequate notice that any given citizen in any given situation runs such a risk is something else.

Authority for idea that failure to ID self alone doesn't amount to obstructing (at least where the police lacked reasonable suspicion to believe a specific crime was being committed): City of Roswell v. Hudson, 2007NMCA-034.

Obstructing, § 946.41(1) -- Mere denial of Culapbility of Crime under Investigation
State v. Joseph M. Espinoza, 2002 WI App 51, PFR filed 2/21/02 (subsequently overruled by State v. Brent R. Reed, 2005 WI 53)
For Espinoza: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether a suspect’s mere denial of guilt of the crime under investigation may in and of itself establish probable cause for the separate crime of obstructing, § 946.41(1).
“¶20. … (T)he legislature did not intend such a broad result as to include within the statute all false answers or false statements which a defendant utters intending to exculpate himself or herself against a charge of a crime and to prevent his or her prosecution.…

“¶22. It seems that the intent of the legislature in Wis. Stat. § 946.41 was to prevent the waste of time, energy and expense involved in having law enforcement officers running down false leads concerning criminal conduct. Doubtless the legislature intended to circumscribe conduct which would frustrate or thwart the police function. The State makes no claim that Espinoza's mere denial of wrongdoing thwarted the police function. And though truth and morality may have required Espinoza to answer in the affirmative when he was questioned regarding the tire incident, we cannot say that the law required him to do so.”

State v. Debra Noble, 2001 WI App 145, reversed, other grounds, State v. Debra Noble, 2002 WI 64
For Noble: Jeff P. Brinckman
Issue: Whether the evidence was sufficient to sustain a perjury conviction.
Holding: Proof of the elements of perjury -- “(1) An oral statement while under oath; (2) The statement was false when made; (3) The defendant did not believe that the statement was true when he or she made it; (4) The statement was made in a proceeding before a judge; (5) The statement was material to the proceeding, ¶8” -- is sustained, for highly fact-specific reasons (most of the appellate challenges are held waived).
Resisting, § 946.41(1); Battery to Officer, § 940.20(2) - "official capacity"/"lawful authority
State v. Leslie M. Haynes, 2001 WI App 266, PFR filed 11/2/01
For Haynes: Gerald F. Kuchler
Issue: Whether "the arresting officer from Waukesha county was not acting in his official capacity or with lawful authority as a police officer when he asked [Haynes] to perform field sobriety tests, arrested her and transported her to a hospital for blood tests because the detention and arrest took place in Milwaukee county." ¶1.
Holding: Officers may arrest outside their jurisdiction under certain circumstances, including "fresh pursuit." Here, the officer observed Haynes go through a red light, and there was no delay between the officer's observation and his decision to act, so that the extrajurisdictional stop was proper. ¶¶6-7. After having made this justifiable stop, the officer observed signs of intoxication, which allowed him to continue the stop and broaden his investigation, to include field sobriety tests. The officer was therefore acting in his official capacity when Haynes resisted. Haynes bit another officer called in for assistance; because that officer was responding to a request authorized by § 66.0313, she was acting within her lawful authority so as to support battery to officer, even though she was outside her jurisdiction at the time. ¶13.
Private Interest in Public Contract, § 946.13(1)(a) -- Pecuniary Interest in Contract Before Its Posting -- Relevance
State v. Paul Venema, 2002 WI App 202
For Venema: Randall R. Garczynski
Issue/Holding: A public official can't have a pecuniary interest in a position before it's been posted. ¶29. Evidence showing the offic
Private Interest in Public Contract, § 946.13(1)(a) -- Sufficiency of Evidence
State v. Paul Venema, 2002 WI App 202
For Venema: Randall R. Garczynski
¶20 We reject Venema's argument that a contract has to be in existence in order for a violation to occur under Wis. Stat. § 946.13(1)(a). Such an interpretation is undermined by the plain meaning of the statutory language. The common meaning of "negotiate" is to "communicate with another party for the purpose of reaching an understanding[.]" Black's Law Dictionary 1059 (7th ed. 1999). Consequently, negotiation ordinarily precedes the formation of a contract and it is these precontractual bargaining relationships that raise the specter of self-interest if one of the parties is also a public official. By contrast, the practical effect of Venema's technical construction is to read the words "negotiate, bid or enter" completely out of the statute or render them surplusage. This we cannot allow. See Donaldson v. State, 93 Wis. 2d 306, 315, 286 N.W.2d 817 (1980).
Wisconsin Organized Crime Control Act (WOCCA), § 946.81 – Damages
S.C. Johnson v. Milton E. Morris, 2010 WI App 6, PFR filed 12/30/09
¶32   … WOCCA, like its federal counterpart the Racketeer Influenced and Corrupt Organizations Act (RICO), has both penal and remedial purposes; its intent is both to sanction and to compensate.

¶33   Where statutes are both penal and remedial, courts separate the penal provisions from the remedial, giving the provisions establishing penalties strict construction and the remainder of the act a liberal construction. …

¶34   The multiple damages provision in WOCCA is very similar to its federal counterpart in RICO, which the United States Supreme Court has repeatedly acknowledged is remedial…. The civil cause of action feature is liberally construed. The damages incurred as a result of this conspiracy all fall under WOCCA. No damages given by the jury fell outside WOCCA, contrary to the claim by Russell and Buske. Therefore, all the damages from the conspiracy were properly doubled. We confirm the trial court’s award of double damages on the while award pursuant to Wis. Stat. § 946.87(4).