CRIMES AGAINST LIFE AND BODILY SECURITY: ch. 940

Updated 1/27/10

§ 940.01, First-Degree Intentional Homicide -- Sufficiency of Evidence
State v. Evan Zimmerman, 2003 WI App 196, (AG) PFR filed 9/10/03
For Zimmerman: Keith A. Findley, UW Law School
Issue/Holding: Although "most of the persuasive evidence against" Zimmerman was his own statements and alibi; and although a conviction may not be based solely on a negative inference drawn from the defendant's own version, other evidence sufficiently supported the conviction, including: "evidence of his obsessive behavior, such as his diary and his appearance at bars and other places where Thompson was present after their breakup"; "Zimmerman's knowledge of the location of Thompson's body and her cause of death"; and "(o)ne of Thompson's hairs ... found in a brush in Zimmerman's van. A reasonable inference is that the hair came from Thompson on the night of the murder." ¶¶28-31.
§ 940.01, Intentional Homicide -- definitions - "human being" - fetus.
State v. Deborah J.Z., 228 Wis.2d 468, 596 N.W.2d 490 (Ct. App. 1999), affirmed by equally divided vote, 225 Wis.2d 33, 590 N.W.2d 711 (1999).
For Deborah J.Z.: Sally Hoelzel.
Holding: An unborn child is not a "human being" under the controlling definition in § 939.22(16), and the defendant therefore can't be charged with attempting to kill and injure her fetus by excessive drinking during her pregnancy. "Simply put, to be convicted of attempted first-degree intentional homicide and first-degree reckless injury, Deborah must attempt to kill or injure someone who has been born alive. This is not what Deborah was charged with doing. The decision whether to include an unborn child in the definition of a 'human being' is a policy issue best addressed by our legislature. We read § 939.22(16), STATS., to have definitively answered this question; the legislature clearly intended to exclude an unborn child by defining a 'human being' as one who has been born alive."
§ 940.02 (1969), Second-Degree Intentional Murder -- Sufficiency of Evidence (Battered Child)
State v. Arden C. Hirsch, 2002 WI App 8
For Hirsch: Paul G. LaZotte, UW Law School, LAIP
Issue: Whether the evidence was sufficient to sustain conviction for second-degree murder, § 940.02 (1969).
Holding: Discrepancies between the parent's version of what happened to the child and medical expert testimony as to what could not have, or what must have, happened to produce the injuries is crucial. ¶7. Persuasive medical evidence that the child died as result of sever injury, along with evidence that defendant was alone with the victim at the time she suffered trauma, supports the verdict. ¶¶36-41. (Seidler v. State, 64 Wis. 2d 456, 219 N.W.2d 320 (1974) distinguished.)
§ 940.02, First-degree reckless homicide -- Subjective Awareness of Risk -- sufficiency of evidence.
State v. Jefrey S. Kimbrough, 2001 WI App 138, PFR filed 6/25/01
For Kimbrough: Glenn C. Cushing, SPD, Madison Appellate
Issue: Whether the evidence satisfied the reckless-conduct element, in particular that the defendant was subjectively aware of the risks in shaking a baby who died as a result.
Holding: The jury was entitled to draw a finding of guilt on this element from competing inferences: Though defendant's intelligence was "limited," he wasn't retarded; nor was there evidence that he was incapable of appreciating the risk of shaking a baby. ¶15. Despite statements that defendant gave to the police indicating a lack of awareness of the consequence of his act, he also lied in minimizing his conduct, which the jury could reasonably infer was due to his awareness of the risk of his conduct. ¶18: "We concur with the view expressed in case law that such escalating admissions may be used by the jury to infer the defendant's subjective awareness of the risk posed by shaking a baby."
§ 940.02, First-degree reckless homicide -- utter disregard for human life -- sufficiency of evidence.
State v. Audrey A. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999).
For Edmunds: Dean A. Strang.
Holding: "Utter disregard for human life," an element of first-degree recklessness, derives from the old second-degree (depraved murder) statute. It imposes an objective test. Therefore, in this shaken baby death, it's irrelevant whether Edmunds had "personal knowledge that vigorously shaking a twenty-two pound infant could subject her to the risk of serious injury": a reasonable person would have known of the risk. The extreme severity of the injuries establish utter disregard (force similar to fall from 2nd story window). The fact that Edmunds called 911 didn't negate the element as a matter of law.
§ 940.02, First Degree Reckless Homicide -- Refusal to Instruct on, as Lesser Offense
State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds
Issue: Whether the first-degree intentional homicide defendant was entitled to an instruction on the lesser offense of first-degree reckless homicide.
Holding: Barreau must show a reasonable basis for negating intent to kill. The victim was killed by multiple blows to the head with a baseball bat. Barreau argues that the victim was still alive when Barreau (and his accomplice) left him; and that only two of the blows were sufficient to kill the victim. Neither theory prevails:
¶22. But even this does not get Barreau very far. Although a reasonable view of the evidence suggests that Barreau and Keeran believed Hansen was not yet dead when they fled the house, there is no evidence indicating that they believed Hansen would ultimately survive. Barreau seems to suggest that a defendant is entitled to a reckless homicide instruction any time he or she left the scene of the crime while the victim was still alive. Barreau points to no authority for such a proposition and we are unaware of any.
¶23. When someone beats another over the head at least ten times with a baseball bat and then stabs him in the neck with a knife, what could the expectation be, other than that the victim will die? If the assailant (either Barreau or Keeran or both) intended, as Barreau argues, to merely incapacitate Hansen without killing him, why strike him repeatedly on his skull? If only injury was intended, why stab the victim in the neck, even after he was clearly incapacitated? Barreau provides no explanation for these questions. Had Hansen been struck only once on his skull or repeatedly on a less vulnerable part of his body, we would agree that the assailant's conduct could be reasonably viewed as reckless. But this is not what happened.
§ 940.03, Felony-Murder (1999-2000) -- Stand-Alone, Unclassified Crime Not Penalty Enhancer
State v. Brandon L. Mason, 2004 WI App 176
For Dawson: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: The felony murder statute, § 940.03 (1999-2000), contains characteristics suggestive of both penalty enhancers (it adds a specified term to the maximum penalty applicable to the underlying crime), ¶15, and also substantive offenses (it is located in a chapter that defines substantive offenses; and it incorporates the elements of offenses located elsewhere), ¶16, hence is ambiguous. Legislative history shows intent to create a stand-alone crime:
¶20 Therefore, we are persuaded that the legislature believed it was addressing a stand-alone crime, not a penalty enhancer. To summarize, the legislature at one time designated felony murder as a Class B felony, thus eliminating the primary reason the State now contends felony murder is a penalty enhancer: its add-on penalty structure. Further, in fixing unrelated problems, the legislature considered retaining the designated felony approach by making felony murder a Class A felony. We think it apparent that if the legislature thought it was dealing with a penalty enhancer, some part of the debate would reflect the need to return to an add-on penalty structure so as to restore the statute to penalty-enhancer status. However, we find no indication that this was part of the debate. Rather, the legislature returned to the old penalty language for reasons unrelated to whether the statute was thought to be a penalty enhancer.
As the court explains, ¶¶6-10, this makes a difference because of interaction between the enhancer rule and the “75%” rule for computing confinement time. The long and short of it is that, as a stand-alone unclassified crime, § 940.03 (1999-2000) carries a maximum initial confinement term of 37 years 6 months, but if deemed a penalty enhancer this term would be 40 years. And, as the court also points out, ¶10 n. 2, the penalty has since been changed so that the current IC max is 26 years 3 months.
§ 940.03, Felony Murder -- Causation -- Defendant's Own Conduct Need Not Be Substantial Factor
State v. Theodore J. Krawczyk, 2003 WI App 6, PFR filed 1/21/03
For Krawczyk: John T. Wasielewski
Issue/Holding: Felony murder does not require proof that the defendant's "own, personal conduct was a substantial factor in causing" the victim's death. In particular, State v. Chambers, 183 Wis. 2d 316, 515 N.W.2d 531 (Ct. App. 1994) was not overruled by State v. Oimen, 184 Wis. 2d 423, 516 N.W.2d 399 (1994). ¶¶11-24.
§ 940.03, Felony Murder -- PTAC Allegation Superfluous
State v. Theodore J. Krawczyk, 2003 WI App 6, PFR filed 1/21/03
For Krawczyk: John T. Wasielewski
Issue/Holding:
¶25. Krawczyk next argues that he was incorrectly charged as "a party to the crime" of felony murder and that this error also rendered his plea to that offense unknowing. We agree with Krawczyk that the State did not need to include the party-to-a-crime allegation in the felony murder charge. Because "[a] person convicted of a felony as a party to the crime becomes a principal to a murder occurring as a result of that felony," it is "redundant and unnecessary" to charge a defendant with felony murder as a party to the crime. Oimen, 184 Wis. 2d at 449. Krawczyk, however, does not explain how or why the inclusion of a "redundant" aspect in a charge deprives a defendant of information necessary to enter a knowing plea. We conclude, as did the supreme court in Oimen, that "no prejudice has been demonstrated" by reason of the party-to-a-crime allegation in the felony murder charge, and thus it does not justify a withdrawal of Krawczyk's plea. Id.
(Note: Keep in mind that this is a guilty-plea case, and that failure to give PTAC instruction may give jury false impression that the death is a necessary cause of the felony. See Perry v. McCaughtry, 308 F.3d 682 (7th Cir. 1982), esp. dissent.)
§ 940.03, Felony Murder -- Causation -- PTAC
Lavelle Chambers v. McCaughtry, 00-1959, 9/5/01
For Chambers: John T. Wasielewski
Issue/Holding: Chambers is liable for the killing of a police officer by Chambers' codefendant, while the pair were trying to flee apprehension during commission of a felony (armed burglary).
§ 940.05(2), Intentional Homicide -- Imperfect Self-Defense
State v. Debra Ann Head, 2002 WI 99, reversing 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9
For Head: John D. Hyland, Marcus J. Berghan
Issue/Holding:
¶103. Based on the plain language of Wis. Stat. § 940.05(2), supported by the legislative history and articulated public policy behind the statute, we conclude that when imperfect self-defense is placed in issue by the trial evidence, the state has the burden to prove that the person had no actual belief that she was in imminent danger of death or great bodily harm, or no actual belief that the amount of force she used was necessary to prevent or terminate this interference. If the jury concludes that the person had an actual but unreasonable belief that she was in imminent danger of death or great bodily harm, the person is not guilty of first-degree intentional homicide but should be found guilty of second-degree intentional homicide.

¶104. In light of this analysis, we must modify Camacho [176 Wis. 2d 860, 869, 501 N.W.2d 380 (1993)] to the extent that it states that Wis. Stat. § 940.01(2)(b) contains an objective threshold element requiring a defendant to have a reasonable belief that she was preventing or terminating an unlawful interference with her person in order to raise the issue of unnecessary defensive force (imperfect self-defense).

It follows that Wis JI-Criminal No. 1014  is wrong, and "requires amendment." ¶146. The court requests the Instruction Committee to revise it, but suggests that the pre-Camacho versions may be correct. ¶147. (See, however, State v. Harp, 150 Wis. 2d 861, 443 N.W.2d 38 (Ct. App. 1989).)
But see:

State v. Anou Lo, 2003 WI 107, affirming unpublished opinion of court of appeals

For Lo: Robert R. Henak
Amicus Briefs: Joseph N. Ehmann, Wm. J. Tyroler, SPD; Meredith J. Ross, Walter J. Dickey, UW Law School

Issue/Holding: The holding of State v. Head, 2002 WI 99 [first-degree intentional homicide mitigated to 2nd-degree if defendant had actual but unreasonable belief in necessity of deadly force] is a “new rule” not requiring retroactive application to collateral attacks. ¶¶61-84.

§ 940.09(2), Defense to Homicide by Intoxicated Use: Death Would Have Occurred Anyway – Admissibility of Evidence of Deceased’s Prior Conduct as Relevant to Intervening Cause
State v. Steven P. Muckerheide, 2007 WI 5, affirming unpublished opinion
For Muckerheide: Mark S. Rosen
Issue/Holding: On a trial of homicide by intoxicated use of a motor vehicle, § 940.09(1)(b), where the defense was that the death would have occurred anyway because the deceased grabbed the wheel just prior to the accident, evidence that the deceased “had, on prior occasions, gestured as if to grab the steering wheel of his father's vehicle and, on one occasion, had actually grabbed the wheel,” was properly excluded as irrelevant:
¶28     As the State pointed out in its brief, the one occasion on which Braun allegedly grabbed the wheel of his father's vehicle was dissimilar in several respects to the occasion in which Braun allegedly grabbed the wheel of Muckerheide's vehicle. There was no evidence that, on the prior occasion, Braun had been intoxicated or under the influence of drugs, but there was evidence that Braun had been drinking and doing cocaine prior to the accident in Muckerheide's vehicle. There is no dispute that an individual often acts differently when he/she is under the influence of drugs and alcohol. Additionally, Braun's father would have testified that Braun had gestured toward the steering wheel on several occasions, whereas Muckerheide never asserted that Braun had made gestures toward the steering wheel in Muckerheide's vehicle prior to the accident. Finally, there is no evidence that Braun had ever grabbed the steering wheel when riding with Muckerheide on occasions prior to the accident, as Braun had allegedly done when riding with his father.

¶29      Due to these dissimilarities, we conclude that Muckerheide's offered other acts evidence does not make a consequential fact more probable or less probable. Id. at 785-86. As this court stated in Whitty v. State, 34 Wis. 2d 278, 291-92, 149 N.W.2d 557 (1967), our seminal case regarding other acts evidence, it is universally established that evidence of other acts "is not admitted in evidence for the purpose of proving general character, criminal propensity or general disposition on the issue of guilt or innocence because such evidence, while having probative value, is not legally or logically relevant to the crime charged."

State v. Sullivan, 216 Wis. 2d 768, 771-72, 576 N.W.2d 30 (1998), it will be recalled, establishes a 3-part test for admissibility of § 904.04 extraneous conduct evidence, ¶20: acceptable purpose under § 904.04(2); relevancy under § 904.01; danger of unfair prejudice under § 904.03. The variant presented by this case is that it deals with evidence sought for use by rather than against the defendant. Draw your own conclusions as to whether identity of extraneous-conduct evidence has a distorting effect on the outcome. One noteworthy point, though: Muckerheide argued that Sullivan’s 3rd step, unfair prejudice, isn’t applicable where the other-acts evidence is advanced by the defendant; the court, while expressly declining to reach that argument, nonetheless equally explicitly “urge(s) circuit court to discuss and analyze all three steps of the Sullivan analytical framework,” ¶32.
§ 940.09, Homicide by Intoxicated use of Vehicle (Boat) – Homicide by Intoxicated Use of Vehicle (Boat) – Constitutionality
State v. Peter A. Fonte, 2005 WI 77, reversing unpublished decision
For Fonte: Martha A. Askins, SPD, Madison Appellate
Issue/Holding: § 940.09 is constitutional, as against a challenge that it relieves the State of proving a causal connection between intoxication and death; reasoning in, and result of, State v. Caibaiosai, 122 Wis. 2d 587, 363 N.W.2d 574 (1985) reaffirmed, ¶38.
§ 940.09, Homicide by Intoxicated use of Vehicle (Boat) – Sufficiency of Proof of “Operating”
State v. Peter A. Fonte, 2005 WI 77, reversing unpublished decision
For Fonte: Martha A. Askins, SPD, Madison Appellate
Issue/Holding: Fonte’s emotionally charged statement to a police officer at the scene that he “thought the boat was out of gear,” corroborated by a companion’s “grudging admission that he had agreed that Fonte was operating the boat” is sufficient to satisfy the § 940.09 element of “operating,” ¶21.
§ 940.10(1), Homicide by Negligent Operation of Vehicle -- Elements
State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate
Issue/Holding:
¶19      Wisconsin Stat. § 940.10(1) provides that a person who “causes the death of another human being by the negligent operation or handling of a vehicle is guilty of a Class G felony.” The term “negligent” as used in § 940.10 requires proof of “criminal negligence.” See Wis. Stat. § 939.25(2). In order to prove a violation of § 940.10, the State must establish beyond a reasonable doubt that (1) the defendant operated a vehicle; (2) the defendant operated the vehicle in a criminally negligent manner; and (3) the defendant’s criminal negligence caused a person’s death. See Johannes, 229 Wis. 2d at 221 n.2; Wis JI—Criminal 1170. The meaning of the term “criminal negligence” is thus central to our disposition of Schutte’s claim that the State produced insufficient evidence to sustain her conviction under § 940.10. The legislature defines “criminal negligence” as “ordinary negligence to a high degree, consisting of conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another.” Section 939.25(1).
Judicial interpretations of “high degree of negligence” under former § 940.08 remain relevant to “criminal negligence” under current statutes, ¶20. Culpability does not require a state of mind different from that required for ordinary negligence but, rather, existence of high probability of death or great bodily harm as discerned by reasonable person, ¶21.
§ 940.10(1), Homicide by Negligent Operation of Vehicle -- Sufficiency of Evidence
State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate
Issue/Holding:
¶34      In sum, we conclude that the State presented sufficient evidence for jurors to reasonably conclude, beyond a reasonable doubt, that Schutte’s conduct prior to the collision was criminally negligent within the meaning of Wis. Stat. §§ 939.25 and 940.10. The State’s evidence established not only that Schutte’s car crossed the highway centerline, but from the evidence the State presented, jurors could also reasonably conclude that Schutte was driving too fast for prevailing weather and road conditions, and, while on a curve in the highway, she attempted to engage in other tasks and took her eyes off the road and one hand off the steering wheel. We conclude the evidence at trial, viewed most favorably to the conviction, was such that jurors, acting reasonably, could have determined, beyond a reasonable doubt, that Schutte engaged in conduct that she should have realized “create[d] a substantial and unreasonable risk of death or great bodily harm to another.” See § 939.25(1).
The court suggests that if “the State’s only evidence of Schutte’s pre-collision conduct been that, on a snowy evening with icy road conditions, her vehicle crossed the highway centerline and collided with an oncoming vehicle, we might agree that Schutte’s convictions under Wis. Stat. § 940.10 could not be sustained,” ¶24. State v. Johannes, 229 Wis. 2d 215, 598 N.W.2d 299 (Ct. App. 1999) explained: all the circumstances under which the defendant was driving must be taken into account, and the defendant’s explanation may mitigate the degree of negligence, ¶¶27-28. “A defendant may avoid criminal liability if jurors determine that the State failed to establish beyond a reasonable doubt that the defendant’s conduct while operating a vehicle rose to that level of culpability because, under the circumstances under which the defendant was driving, either the risk of life-threatening consequences was not a substantial one, or if it was, the circumstances, such as the presence of an emergency, rendered the risk not unreasonable,” ¶29.
§ 940.10(1), Homicide by Negligent Operation of Vehicle -- Jury Instructions -- Elements
State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate
Issue: Whether the trial court invaded the jury’s province when it instructed that the court of appeals had held in State v. Johannes, 229 Wis. 2d 215, 598 N.W.2d 299 (Ct. App. 1999) that a criminally negligent act had occurred when a car drove across the centerline and that unanimous agreement was unnecessary as to why that act occurred.
Holding:
¶38      We first note that the Johannes excerpt the trial court read to jurors was not from the portion of our opinion where we discussed the sufficiency of the evidence, but from our discussion of whether jurors need to be unanimous regarding the specific act or acts of the defendant that constituted criminal negligence. See Johannes, 229 Wis. 2d at 227-29. As the excerpt read to jurors in this case notes, we concluded jurors need not be unanimous regarding why a defendant committed a criminally negligent act, only that he or she did so. See id. at 229. Schutte does not argue that Johannes is wrong on this point or that it was inappropriate for the trial court in this case to correct any misimpression regarding the State’s burden of proof jurors might have gained from defense counsel’s argument. We conclude the court did not misstate the law regarding the State’s burden of proof or the proper application of the unanimity requirement to the evidence adduced at trial.

¶39      As for Schutte’s claim that the particular passage from Johannes that the trial court read to jurors was tantamount to a judicial endorsement of a guilty verdict, we would find greater merit in the claim had the trial court not concluded its curative instruction with the paragraph that it did. The final paragraph of the instruction emphasized to jurors that Schutte’s operation of her vehicle on the left half of the roadway did not necessarily constitute criminal negligence, and it informed jurors for a second time that they should consider the traffic violation, if they found one, “along with all the other evidence, in determining whether the defendant’s conduct constituted criminal negligence.” The court had also so instructed jurors as a part of its instructions on the elements of homicide by negligent operation of a vehicle, which the court read to jurors prior to the closing arguments of counsel.

§ 940.10(1), Homicide by Negligent Operation of Vehicle -- Evidence -- Marijuana Use
State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate
Issue/Holding1: Evidence of the driver’s marijuana use just before the accident resulting in the charged homicide by negligent use of vehicle was relevant and admissible:
¶48      Although the toxicology expert could not tie the level of THC detected in Schutte’s blood to a specific level of impairment, she noted at trial that “some driving skills … are affected” including judgment, reaction time and information processing. She also noted that THC “affects a person’s perception of time and space so that the ability to judge distances, speeds and relationship to other objects is also d[i]minished,” and, further, that coordination, balance and concentration are also affected. Finally, she explained that THC “does have a tendency for people to fixate their attention for a longer period of time on one type of task or another, whether it’s looking out the window to check a building or putting in a CD.” These effects all relate directly to a person’s ability to safely drive a motor vehicle. Despite the lack of testimony that Schutte experienced any of these effects prior to the collision, jurors, without speculating on Schutte’s precise level of impairment, if any, could reasonably conclude from the expert’s testimony that Schutte’s use of a substance capable of producing these effects, while (or immediately prior to) driving on a rural highway at night in adverse weather and road conditions, was a circumstance rendering it more probable that her conduct was criminally negligent.
Consideration of § 346.63(1)(am), which criminalizes driving with a detectable amount of a controlled substance, is appropriate in making a relevancy determination, ¶50.
Issue/Holding2: Evidence of the driver’s marijuana use just before the accident resulting in the charged homicide by negligent use of vehicle wasn’t unfairly prejudicial, ¶¶52-56.
§ 940.10, Negligent Homicide -- corporate liability
State v. Steenberg Homes, 223 Wis.2d 511, 589 N.W.2d 668 (Ct. App. 1998).
Holding: Corporations are subject to criminal liability under Wis. Stat. § 940.10.
Kidnapping, § 940.31(1)(b) – Elements – “Hold to Service Against Will”
State v. Jeremy Denton, 2009 WI App 78 / State v. Aubrey W. Dahl, 2009 WI App 78
For Denton: Paul G. Bonneson
For Dahl: Patrick M. Donnelly
Issue/Holding: Though merely incidental to robbery, kidnapping charge is supported on theory that ordering the victim to relinquish property holds that person to service against his or her will:
¶26      … The defendants contend that, under the State’s theory, every robbery would automatically include a kidnapping under Wis. Stat. § 940.31(1)(b) because a person is stopped (seized) and ordered to turn over money (held to service against one’s will). The defendants posit that the “held to service” language in the kidnapping statute “must be limited to situations of forced labor, or involuntary servitude.” …

¶27      We reject the defendants’ argument for two reasons. First, Wisconsin law recognizes that a defendant may be prosecuted for kidnapping even when the kidnapping is incidental to another charged crime. See Harris v. State, 78 Wis. 2d 357, 254 N.W.2d 291 (1977), criticized on other grounds by Wilson v. State, 82 Wis. 2d 657, 264 N.W.2d 234 (1978). …

¶28      Second, the defendants’ attempt to narrow the definition of the “held to service” element of kidnapping to “forced labor, or involuntary servitude” ignores prior case law. The defendants acknowledge that in State v. Clement, 153 Wis. 2d 287, 292, 450 N.W.2d 789 (Ct. App. 1989), we held that “[t]he word ‘service,’ as it is used in [Wis. Stat. §] 940.31, includes acts done at the command of another.” Although Clement set forth that definition while rejecting a defendant’s contention that a kidnapping charge could not “be fulfilled by sexual assault alone,” the definition of “service” remains the same. See Clement, 153 Wis. 2d at 292. We therefore conclude that the State was entitled to charge kidnapping in this case, and we reject the defendants’ contention that the kidnapping conviction must be reversed regardless of the sufficiency of the evidence.

The defendants probably are correct: henceforth, every robbery will also be a kidnapping, just as, after Clement, every sexual assault is also a kidnapping. The defendants are also correct in that historically, the hold-to-service kidnapping was aimed at involuntary servitude, e.g., Perry v. State, 853 P.2d 198, 202 (Okla. Ct. Cr. App. 1993), and not every single street crime under the sun. That said, those few courts who have dealt with the problem obdurately agree with Clement that for kidnapping purposes “service” more or less means any act performed upon command.
§ 940.31(1)(b), Kidnapping - Elements & Mitigation
State v. Reinier A. Ravesteijn, 2006 WI App 250
For Ravesteijn: Rudolph L. Oldeschulte
Issue/Holding: Kidnapping is mitigated from a Class B to Class C felony if the victim is released without permanent physical injury prior to the first witness’s testimony, ¶17. When accepting a guilty plea to Class B kidnapping the court must ascertain a factual basis for excluding the Class C offense, at least where there is some evidence in the record to support it, ¶18. However, the error in such an omission goes to the sentence rather than the plea, ¶¶19-20.
§ 940.31(1)(b), Kidnapping -- Sufficiency of Evidence -- "Confinement"
State v. Charles J. Burroughs, 2002 WI App 18
For Burroughs: William F. Mross
Issue/Holding: The term "confine" has been defined under § 940.30 (false imprisonment), to mean compelled deprivation of free movement. ¶18. Therefore, the definition of "confine" in Wis JI-Criminal No. 1275 applies to kidnapping. ¶19. Applying that definition: physical force isn't essential; nor is the victim required to undertake the risk presented by an opportunity to escape. The jury was entitled to find confinement based on evidence that defendant raised his fists at and threatened to shoot the victim: "¶22. Based on the evidence presented at trial, we conclude that a reasonable jury could find that Burroughs confined Sharon by depriving her of her freedom of movement and compelling her to remain where she did not wish to remain. We therefore uphold the jury's conviction." ¶22.
§ 940.10, Negligent Homicide by Operation of Vehicle -- elements -- objective standard for negligent conduct.
State v. Derrick D. Johannes, 229 Wis. 2d 215, 598 N.W.2d 299 (Ct. App. 1999).
For Johannes: Gregory A. Petit.
Holding: Johannes was convicted of several counts related to criminally negligent operation of a vehicle. The state's theory was that Johannes crossed a centerline when he either fell asleep or played with a stereo. He now argues that the state had to prove that he knew that such conduct would cause him to cross the centerline. This, the court holds, seeks an impermissibly subjective rather than objective standard for criminal negligence. The motive cause of the conduct is, however, relevant to mitigate the offense from high degree of to simple negligence.
§ 940.11(2), Hiding Corpse -- Sufficiency of Evidence
State v. Scott Leason Badker, 2001 WI App 27, 240 Wis. 2d 460, 623 N.W.2d 142
For Badker: Timothy A. Provis
Issue: Whether the evidence was sufficient to sustain conviction for "hiding" corpse, § 940.11(2).
Holding: By dumping the deceased's body into a 6-foot-deep, water-lined ditch in a secluded wildlife refuge, Badker satisfied the element of "hiding" under § 940.11(2).
§ 940.19(1), Battery - causing bodily harm, splashed with urine.
State v. Charles Dante Higgs, 230 Wis.2d 1, 601 N.W.2d 653 (Ct. App. 1999).
For Higgs: Joseph E. Redding.
Issue: Whether splashing the victim's face with urine satisfies the battery element of bodily harm.
Holding: The mere fact that urine struck the victim's face isn't enough to establish bodily harm, but the victim's testimony that he felt stinging and burning satisfied the element.
§ 940.19(5), Aggravated Battery -- Instructions: Defining “Great Bodily Harm,” § 939.22(14)
State v. Mahlik D. Ellington, 2005 WI App 243
For Ellington: Andrea Taylor Cornwall
Issue/Holding: The following instruction is sufficient: “Great bodily harm means serious bodily injury.  You, the jury, are to alone to determine whether the bodily injury in your judgment is serious.” ( La Barge v. State, 74 Wis. 2d 327, 333, 246 N.W.2d 794, 797 (1976) and Cheatham v. State, 85 Wis. 2d 112, 119–124, 270 N.W.2d 194, 198–200 (1978) followed, to effect that “serious bodily injury” is phrase of “ordinary significance” such that embellishment is unnecessary.) In addition, although various examples of serious injury are listed in the statute, the legislature did not intend that they restrict the meaning of that phrase. ¶¶6-8.
§ 940.19(5), Aggravated Battery – Intent Element not Refuted, Lesser Included Option of 2nd-Degree Reckless Injury not Supported on Facts
State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se
Issue/Holding:
¶52   We conclude as a matter of law that shooting a person in the thigh at a range of sixteen feet with a shotgun is practically certain to cause at least a protracted loss or impairment of the function of the person’s leg, and is therefore injury constituting “great bodily harm” within the meaning of the statutes. In so concluding, we reject Miller’s argument that, by aiming for Nakai’s thigh and not his abdomen, chest or head, a reasonable jury could conclude that he did not intend to cause Nakai great bodily harm.

¶53   We further conclude that Miller, who had experience with firearms as an army reservist and a hunter, would have been aware that his conduct was practically certain to cause protracted loss or impairment of function of Nakai’s leg. We reject Miller’s argument that a reasonable jury could have concluded that Miller did not intend to cause Nakai great bodily harm based on his testimony that his purpose in shooting Nakai was “to stop him.” The fact that Miller’s conduct was intended to neutralize the threat posed by Nakai does not negate the fact that, by firing the shotgun at Nakai’s thigh, Miller also intended to cause Nakai great bodily harm by committing an act that he was aware was practically certain to result in great bodily harm to Nakai.

¶54      We conclude that, because the only reasonable view of the evidence is that Miller intended to cause Nakai “great bodily harm” as defined in Wis. Stat. § 939.22(14), no reasonable jury could have acquitted Miller of aggravated battery unless it accepted his defense of self-defense or defense of others. However, if a reasonable jury did accept one of those defenses, it would also acquit Miller of second-degree reckless injury. Thus, there is no reasonable basis in the evidence for an acquittal on the aggravated battery charge and a conviction on the second-degree reckless injury charge. Accordingly, Miller was not entitled to a lesser-included instruction for second-degree reckless injury for this charge.

The dissent would go farther, ¶¶81-95, and conclude that submission of a lesser is a matter of trial tactics delegated to counsel rather than a personal decision residing with the defendant.
§ 940.19(5), Aggravated Battery -- First-degree Reckless Endangering Safety, § 941.30(1), Not Lesser Included Offense of
State v. Russell L. Dibble, 2002 WI App 219, PFR filed 8/14/02
For Dibble: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: First-degree recklessly endangering safety, § 941.30(1), is not a lesser included offense of aggravated battery, § 940.19(5), under the "elements-only" test. Aggravated battery requires intent (to cause great bodily harm); endangering safety requires recklessness (while showing utter disregard for human life). It is this last -- utter disregard -- that distinguishes the two crimes. You can commit aggravated battery without having utter disregard for human life, and therefore reckless endangering is not a lesser offense of aggravated battery.
(Note: The court essentially assumes that  "utter disregard" is wholly distinct from intent to cause great bodily harm. But how can someone intentionally inflict great bodily harm without being indifferent to that person's life? "Utter disregard" is not a specific-intent element; it refers to general intent to do harm, and is shorthand for conduct that evinces indifference to life. Balistreri v. State, 83 Wis. 2d 440, 448, 265 N.W.2d 440 (1978). It seems perfectly clear that whenever you intentionally cause great bodily harm to someone you're engaging in conduct that evinces total indifference to that person's life. Put it a slightly different way: "great bodily harm" necessarily runs "a substantial risk of death" or something close, sec. 939.22(14); is it possible to intentionally inflict that level of harm without evincing utter disregard for life? Notably, the court didn't suggest a single hypothetical example showing how an actor could commit aggravated battery without also committing reckless endangering.)
§ 940.19(6), Aggravated Battery, § 940.20(2), Battery by Prisoner: Different Offenses for Double Jeopardy Purposes Under § 939.66(2m)
State v. Jimmie Davison, 2003 WI 89, reversing 2002 WI App 109, 235 Wis. 2d 715, 647 N.W.2d 390
For Davison: Keith A. Findley, UW Law School, Criminal Appeals Project
Issue/Holding: The legislature did not intend to preclude cumulative punishments for both aggravated battery, § 940.10(6) and battery by prisoner, § 940.20(1), for the same conduct. ¶¶47-111.
§ 940.20(1), Battery by Prisoner -- Probationer
State v. James T. Fitzgerald, 2000 WI App 55, 233 Wis. 2d 584, 608 N.W.2d 391
For Fitzgerald: Daniel P. Dunn
Issue: Whether a probationer in custody under a probation hold is necessarily a "prisoner" within the battery by prisoner statute, Wis. Stat. § 940.20(1).
Holding: Because a "prisoner" is someone confined as a result of a violation of the law; and because probation rules and conditions have the force of law, a probationer taken into custody for violating probation is necessarily a "prisoner" within the meaning of the battery statute.
§ 940.20(1), Battery by Prisoner -- Elements -- Sufficiency of Evidence
State v. Damone J. Block, 222 Wis. 2d 586, 587 N.W.2d 914 (Ct. App. 1998)
For Block: James M. Weber
Issue/Holding:
Block's next claim is that there was insufficient evidence to prove all of the elements of assault by a prisoner. Those elements are: (1) the defendant was a prisoner at the time of the offense, (2) the victim was an employee of the institution, (3) the defendant placed the victim in apprehension of an immediate battery likely to cause death or great bodily harm, (4) the defendant intended to place the victim in apprehension of an immediate battery likely to cause death or great bodily harm, and (5) the defendant knew that the victim was an employee of the institution. See Wis J I-Criminal 1778. Block claims that because his attack was a surprise, the victim could not have been in apprehension of it. In response to the State's argument that the apprehension began after the first but before the subsequent blows, Block contends that "[a]pprehension ... is fear of what is about to occur, not what is occurring." He also claims that intent to place the victim in apprehension was not proven, as his attack was meant to be a surprise.

...

... Based on the testimony, the jury could have concluded that after that first blow she was in apprehension of an immediate battery-the subsequent blows-and that Block, through all of his actions up to and including the attack, intended to place her in such apprehension. There was enough evidence presented for the jury to reach such a conclusion.

Battery to Peace Officer, § 940.20(2) – Elements: Officer Need Not Act “Lawfully”
State v. Dione Wendell Haywood, 2009 WI App 178
For Haywood: Robert E. Haney
Issue/Holding: In a battery-to-officer prosecution, it is no defense that the officer refused to leave the premises when the resident withdrew consent to enter, because acting “lawfully” is not an element:
¶11      The flaw in Haywood’s contention, however, is that a law-enforcement officer need not be acting “lawfully” for what he or she does to be done in the officer’s “official capacity.”  Rather, the officer need only be acting within his or her jurisdiction as an officer, State v. Barrett, 96 Wis. 2d 174, 180, 291 N.W.2d 498, 500–501 (1980), and not on some “personal frolic” unrelated to the officer’s law-enforcement responsibilities, State v. Schmit, 115 Wis. 2d 657, 665, 340 N.W.2d 752, 756 (Ct. App. 1983) (inner quotation marks and quoted source omitted).  The confluence of Barrett and Schmit are instructive.

¶12      First, as we see from Wis. Stat. § 940.20(2), there is no requirement that the officer/victim be acting lawfully when he or she is hit by a defendant.  “[T]he existence of a peace officer’s lawful authority is an element of the crime of resisting or obstructing an officer under sec. 946.41, Stats.  It is not an element of the crime of battery to a peace officer.”   Barrett, 96 Wis. 2d at 181, 291 N.W.2d at 501 (footnote added). …

¶14      Here, in contrast to both Barrett and Schmit, Officer Post was not on a “personal frolic” when Haywood hit him, but rather, was doing something “within the scope of what [Post] is employed to do.”  Accordingly, Haywood’s contention that the lawfulness of Post’s presence in the house where Haywood hit him was material to his violation of Wis. Stat. § 940.20(2) is without merit. Therefore, he is not entitled to discretionary reversal under Wis. Stat. § 752.35.

§ 940.203(2), Battery -- Threat to Judge
State v. Murle E. Perkins, 2000 WI App 137, 237 Wis. 2d 313, 614 N.W.2d 25, reversed on other grounds, State v. Perkins, 2001 WI 46 ¶2 n. 2.
For Perkins: William E. Schmaal, SPD, Madison Appellate
Issue: Whether a conditional threat to shoot a judge, made by a drunk and very depressed individual just before being taken into Ch. 51 emergency detention, sufficed to support conviction for threat to the judge, § 940.203(2).
Holding: The evidence supports the necessary elements, namely whether a reasonable person would interpret the defendant's statement as a serious expression of intent to harm the judge. ¶14.
Analysis: A judge found Perkins in contempt for failing to pay about $50,000 in child support. Perkins reacted by getting drunk and threatening suicide. When an officer showed up, he engaged Perkins in a 30-minute conversation. Perkins was still drunk and "very depressed." During the course of their conversation, Perkins told the officer that if he were going to shoot himself, he'd shoot the judge "first because he's a brain dead son of a bitch." Turned out not to be the sort of banter tolerated in Vernon County, and Perkins was convicted of threatening a judge, § 940.203(2). There are, the court acknowledges, first amendment implications, exemplified by Watts v. U.S., 394 U.S. 705 (1969), such that only a "real" or "true" threat -- as opposed to an idle one or political hyperbole -- can be sanctioned. The test is "whether the communication would be interpreted by a reasonable person as a serious expression of intent to inflict bodily harm." ¶12-13. That test was met, the court stressing the contempt order along with the epithet "brain dead son of a bitch" as showing actual animus. ¶¶15-17.
Go To COA Brief

Battery to, and Intimidation of, a Witness § 940.201(2)(a) and (b) -- Elements

State v. Anthony M. Cotton, 2003 WI App 154

For Cotton: Timothy T. Kay

Issue/Holding:


¶19. Following the preliminary hearing and bindover, the State filed an information containing new charges pertaining to Cotton's encounter with Paikowski-one count of battery or threat of battery to Paikowski and a further similar count regarding Paikowski's family pursuant to Wis. Stat. § 940.201(2)(a) and (b). These charges require the State to prove beyond a reasonable doubt that (1) the defendant caused or threatened to cause bodily harm to the victim or victim's family, (2) the victim was likely to testify as a witness (whether or not any proceedings had been commenced at the time of the alleged offense), (3) the defendant knew or had reason to know that the victim was a witness, (4) the defendant caused or threatened to cause bodily harm to the victim or victim's family because the person was likely to testify as a witness, (5) the defendant caused or threatened bodily harm without the consent of the victim, and (6) the defendant acted intentionally. Wis JI-Criminal 1239 & cmt. Cotton challenged the charges as not supported by evidence at the preliminary hearing.

(The decision goes on to hold that charges involving battery and threats to a witness can’t be supported absent proof that the defendant knew the alleged victim was likely to be a witness. ¶¶22-23.)

§ 940.21, Mayhem – Elements – Generally
  State v. Leonard J. Quintana, 2008 WI 33, affirming 2007 WI App 29
For Quintana: James B. Connell, Robyn J. DeVos, William R. Kerner
Issue/Holding:
¶70      To constitute mayhem, the State must show that the defendant had (1) the specific intent to disable or disfigure; (2) by cutting or mutilating the tongue, eye, ear, nose, lip, limb, or other bodily member; and (3) the cutting or mutilating produced great bodily harm. Wis JI——Criminal 1246. [33]  

¶71      A specific intent to disable or disfigure is distinguishable from a general intent. A general intent to do the acts and the consciousness of the nature of the acts and possible results differs from the specific intent to do the intended harm, i.e., the specific intent to disable or disfigure. Kirby v. State, 86 Wis.  2d 292, 301, 272 N.W.2d 113 (Ct. App. 1978); State v. Weso, 60 Wis.  2d 404, 411-12, 210 N.W.2d 442 (1973).

¶72      Mayhem requires great bodily harm, although the Jury Instruction Committee has been skeptical of this assertion. …

§ 940.21, Mayhem – “Bodily Member” – Includes Forehead
  State v. Leonard J. Quintana, 2008 WI 33, affirming 2007 WI App 29
For Quintana: James B. Connell, Robyn J. DeVos, William R. Kerner
Issue/Holding: A forehead is a “bodily member” for purposes of the mayhem statute, § 940.21.
The opinion includes a very lengthy recitation of statutory history of mayhem, going back to the Coventry Act of 1670.Distilled, here’s the lesson to take away: “the manner in which the legislature uses the phrase ‘other bodily member’ indicates that the legislature intended that phrase to be construed broadly, and thus we have given effect to that intent,” ¶57. That, and the court’s casual recognition, “Mayhem is rarely charged because of the number of other statutes that can be charged in its place. It will likely continue to be rarely charged due to the difficulty in proving a specific intent,” ¶ 69, n. 31.
Crimes -- § 940.22(2), Sexual Exploitation by Therapist – Clergy as “Therapist,” Jury Instructions
State v. William E. Draughon III, 2005 WI App 162, (AG’s) PFR filed
For Draughton: Stephen L. Miller
Issue/Holding: Draughon, a pastor, was concededly a “clergy” member within § 940.22(2); however, the instructions relieved the State of its burden of proof on the element of whether he performed “therapy” in this capacity, in that they told the jury that a member of the clergy is a “therapist,” without specifically requiring that Draughon in fact performed therapy:
¶13      Jury 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. State v. Harvey, 2002 WI 93, ¶23, 254 Wis. 2d 442, 647 N.W.2d 189. The Fifth Amendment’s due process guarantee protects “the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id., ¶19 (citations omitted). The Sixth Amendment right of trial by jury in criminal cases includes the right to have the jury, rather than the judge, reach the requisite finding of guilt or innocence. See State v. Peete, 185  Wis.  2d 4, 19, 517 N.W.2d 149 (1994) (“Where the finder of fact is a jury, proof of all essential elements must be tendered to the jury.”).

¶14      … Here, the instruction given never directed the jury to make an independent, beyond-a-reasonable-doubt decision as to whether Draughon performed or purported to perform psychotherapy.  Because this finding was a required element of the charge, its omission is constitutional error. See Harvey, 254 Wis. 2d 442, ¶33.

Crimes – § 940.22(2) (2001-02): Sexual Exploitation by Therapist – Elements, Generally
State v. Michael A. DeLain, 2005 WI 52, affirming, as modified, 2004 WI App 79
For DeLain: Robert R. Henak
Issue/Holding:
¶9        To obtain a conviction for a violation of Wis. Stat. § 940.22(2), the State must prove three elements beyond a reasonable doubt:  (1) that the defendant was or held himself or herself out to be a therapist; (2) that the defendant had intentional sexual contact with a patient or client; and (3) that the sexual contact occurred during an ongoing therapist-patient or therapist-client relationship. [2] State v. Miller, 2002 WI App 197, ¶17 n.5, 257 Wis. 2d 124, 650 N.W.2d 850; see also State v. Ambrose, 196 Wis. 2d 768, 777, 540 N.W.2d 208 (Ct. App. 1995) (holding that the actor and the complainant "must be engaged in a professional therapist-patient/client relationship").
[2] We note that the pattern jury instructions open by stating, "Sexual exploitation by a therapist, as defined in § 940.22 . . . is committed by one who is or holds himself out to be a therapist and who intentionally has sexual contact with a patient or client during any ongoing therapist-patient or therapist-client relationship," Wis JI——Criminal 1248 (emphasis added). This opening statement appropriately includes intent.  However, in stating that the second element of the crime is the defendant's sexual contact with the victim during the relationship, and in describing this second element, the instructions fail to include intent. See id. (stating, "Second, that the defendant had sexual contact with (name of victim)," and later stating, "The second element requires that the defendant had sexual contact with (name of victim)."). We therefore suggest review of these instructions.
Crimes – § 940.22(2) (2001-02): Sexual Exploitation by Therapist – Element of Ongoing Therapist-Patient Relationship
State v. Michael A. DeLain, 2005 WI 52, affirming, as modified, 2004 WI App 79
For DeLain: Robert R. Henak
Issue/Holding: Whether there is an ongoing therapist-patient relationship, within the meaning of § 940.22(2) (2000-02) is determined under “the totality of the circumstances,” ¶24 (rejecting court of appeals’ construction, which applied a subjective test turning on the therapist’s intent). Thus, such a relationship may exist, even though (as here) the “patient” is acting as a police agent and secretly recording the session: (text of lengthy footnote omitted below):
¶24        Accordingly, we disavow the court of appeals discussion of "intentionally." DeLain, 272 Wis. 2d 356, ¶¶10-11. Instead, we conclude that it is the totality of the circumstances, which in this case included a stipulation that DeLain provided therapy to J.F. on all her visits, that determines whether there was an ongoing therapist-patient relationship when sexual contact occurred. A defendant's state of mind is one factor in this totality of the circumstances analysis. Further, a secret unilateral action of a patient may also be a factor, although not necessarily the decisive factor, as urged by DeLain. Similarly, the explicit remarks of one party to the other regarding the status of the relationship may be a factor, but not necessarily the dispositive factor, as proposed by the State. Other factors that may appropriately enter into the analysis include, but are not limited to: how much time has gone by since the last therapy session; how close together the therapy sessions had been to each other; the age of the patient; the particular vulnerabilities experienced by the patient as a result of his or her mental health issues; and the ethical obligations of the therapist's profession. [5] Only upon consideration of all the circumstances that are relevant in a given case may we fully address the legislature's concern for protecting the public.
(The court concludes that this element was proven, ¶25, stressing in particular the parties’ stipulation that DeLain was performing psychotherapy on J.F. at the relevant time period, and that J.F. never formally withdrew from therapy.)
§ 940.225(2)(a), Second-Degree Sexual Assault – Sufficiency of Evidence – Force
State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers
Issue: Whether use of force element of second-degree sexual assault was established where the defendant asked the complainant to rate his penis then hugged her so that she could feel his penis through their clothing.
Holding:
¶24      Long's arguments are not persuasive. Under Wisconsin law, force has been used when the victim is compelled to submit. See State v. Bonds, 165 Wis.  2d 27, 32, 477 N.W.2d 265 (1991) (concluding that the force element of second-degree sexual assault was met when Bonds grabbed a woman's nipple and squeezed it). In Bonds, the court said, "Force used at the time of contact can compel submission as effectively as force or threat occurring before contact. Regardless of when the force is applied, the victim is forced to submit." Id.

¶25      Here, Bobbie D. testified that Long grabbed her, hugged her tightly and forcibly, and that she was too afraid to cry out. From this testimony, the jury could have determined that Long forcibly held Bobbie D., compelling her to submit so that he could make sexual contact. We conclude that a reasonable jury could have determined beyond a reasonable doubt that the sexual contact was by use or threat of force or violence.

§ 940.225(2)(a), Second-Degree Sexual Assault – Sufficiency of Evidence – Timing of Force Element
State v. Obea S. Hayes, 2004 WI 80, affirming 2003 WI App 99, 264 Wis. 2d 377, 663 N.W.2d 351 For Hayes: Philip J. Brehm:
Issue/Holding:
¶64. We agree with the court of appeals that M.M.'s testimony did not follow a chronological order. A reasonable factfinder could, however, draw the inference that the defendant verbally threatened to have retaliatory sex with M.M. and that the sexual contact occurred while he was wrestling and struggling with her to overcome her resistance. Wrestling, struggling, verbally threatening unwanted sex, tearing the victim's clothes, and breaking her finger are a sufficient use or threat of force or violence to support a conviction under Wis. Stat. § 940.225(2)(a).
The court of appeals' holding, 2003 WI App 99, ¶16, is thus affirmed:
the element is satisfied whether the force is used or threatened as part of the sexual contact itself or whether it is used or threatened before the sexual contact. Further, where more than one sexual act occurs, a single threat may suffice; there need not be a separate threat or use of force prior to each act.
And, so too, the court of appeals' holding, id., ¶17, that any temporal ambiguities in the complainant’s account were for the jury to resolve ("We do not reverse convictions because a witness fails to describe an event in exact chronological fashion. Rather, we leave it to the jury to listen to the testimony and determine what happened.")
Sexual Assault: Mentally Ill Victim, § 940.225(2)(c) – Sufficiency of Evidence
State v. Eugene M. Perkins, 2004 WI App 213, PFR filed 11/9/04
For Perkins: Jeffrey W. Jensen
Issue Whether expert testimony is required to establish the victim’s mental illness, an element of § 940.225(2)(c).
Holding: This element may be shown through credible lay opinion testimony:
¶17 Here, the State had to prove four things: (1) that Perkins had sexual contact or intercourse with H.V.; (2) that H.V. suffered from a mental illness or deficiency at the time of the sexual contact or intercourse; (3) that the mental illness or deficiency rendered H.V. temporarily or permanently incapable of appraising her conduct, or in other words, H.V. must have lacked the ability to evaluate the significance of her conduct because of her mental illness or deficiency; and (4) Perkins knew that H.V. was suffering from a mental illness or deficiency and knew that the mental condition rendered H.V. temporarily or permanently incapable of appraising her conduct. See WIS JI—CRIMINAL 1211. Perkins insists that the State failed in two regards—there was insufficient evidence to establish that H.V. suffered from a mental illness and that Perkins knew of her illness. We disagree.

¶18 Perkins asserts that without expert testimony, there was insufficient evidence to establish that H.V. suffered from a mental illness. …

¶19 He does not, however, point to a single statute requiring expert testimony to prove a victim’s mental condition. Furthermore, he ignores the comment following the jury instruction for WIS. STAT. § 940.225 …. The jury is not asked to diagnose the victim’s mental illness or deficiency—the State only has to prove that the victim suffered from a mental illness or deficiency that rendered the victim incapable of appraising his or her conduct.

¶21 Moreover, when the matter to be determined is within the common understanding of the jury, lay opinion testimony may be sufficient. In light of the lack of Wisconsin precedent requiring expert testimony in cases such as this, and the lack of any statutory language defining the requisite mental illness or deficiency or requiring such testimony, we cannot conclude that expert testimony should be required in every case to establish the existence of a mental illness or deficiency rendering the victim unable to appraise his or her conduct under WIS. STAT. § 940.225(2)(c).

Perkins and H.V. were both residents of a facility for the elderly. Lay testimony indicated that H.V. was 78, had “severe Alzheimer’s,” couldn’t converse coherently, and had limited recall. This, the court says, was enough for the fact-finder to conclude “that H.V. suffered from a mental illness that rendered her incapable of appraising her conduct,” ¶23. And, because there was also evidence “that Perkins interacted with H.V. on a daily basis,” the evidence sufficiently established Perkins’ knowledge of her infirmity, ¶24. Perkins, by the way, was 60 and had suffered 3 strokes but had no cognitive impairment; he was generally confined to a wheelchair and required oxygen while he slept. His sentence? 8 years; 4 confinement, 4 supervision.

H.V.'s impaired condition seems pretty obvious, but for authority (foreign, but under similarly worded statute) that conviction isn't supported where the victim's IQ was in the mild to moderate retaradation range; no expert evidence addressed whether this mental condition rendered her incapable of consent; and the victim's own testimony indicated a capacity to understand the nature of sexual realtions, see State v. Reed, OR SCT No. SC S51670, 9/1/05.

§ 940.225(2)(g), Sexual Assault – Elements: Employee of In-Patient Treatment Facility Within § 940.295(2)  /  § 50.135(1)
State v. John F. Powers, 2004 WI App 156
For Powers: Marcus J. Berghahn; John D. Hyland
Issue/Holding: An employee of the Tomah VA Medical Center is not an employee of an in-patient treatment facility within the meaning of §§ 940.225(2)(g), 940.295(2)(b), (c), (h), (k), and 50.135(1), because the Center is not licensed or approved by DHFS, ¶11, and the pending charge under that section must therefore be dismissed, ¶20. (§ 940.225(2)(g) does apply to other facilities than in-patent treatment, but under the particular facts that is the only possible candidate, ¶9.)

Of note: The court’s statutory construction analysis may be of some interest, in particular the court’s reliance on the LRB Bill Drafting Manual which, the court pointedly says, is not an extrinsic source (i.e., one that may be consulted only if the statutory text is ambiguous) but, rather, is a reference work that “assists us in determining the meaning of the statutory language itself by revealing the standards and definitions relied on by those who choose and arrange the words, phrases and punctuation found in the Wisconsin Statutes.” ¶14 n. 8. The Manual is revised biennially. Not available on-line, the librarycall number is KFW/2821.5/B5/A85.

§ 940.225(2)(h), Sexual Assault by Correctional Staff Member – Courthouse Bailiff not “Correctional Staff”
State v. Delano L. Terrell, 2006 WI App 166
For Terrell: Martin E. Kohler, Brian Kinstler, Christopher M. Eippert
Issue: Whether a sheriff’s deputy assigned to work as a court bailiff is a “correctional staff member” so as to come within § 940.225(2)(h).
Holding: A “correctional staff member” is defined as an individual who works at a correctional institution, § 940.225(5)(ad). Terrell was a deputy assigned to work as a courthouse bailiff—a courthouse isn’t a correctional institution, and therefore he doesn’t come within the plain language of the definition. The fact that he processes inmates transported from a correctional institution doesn’t mean that he works at one. “Rather, the plain meaning of the statutory language applies to all those whose ‘work’ is central to the function of a correctional institution, and which takes place within the walls of the correctional institution.”
§ 940.225(7), Sexual Intercourse with Corpse – Liability Requires that Defendant Cause Death
State v. Alexander Caleb Grunke / State v. Dustin Blake Radke, 2008 WI 82, reversing 2007 WI App 198
For Grunke: Suzanne Edwards
For Radke: Jefren E. Olsen, SPD, Madison Appellate
Issue: Whether § 940.225 criminalizes sexual contact or sexual intercourse with a victim already dead at the time of the sexual activity when the accused did not cause the death of the victim.
Holding:
¶25      There is no statutory ambiguity or incompatibility between, on the one hand, a victim being incapable of consent because the victim is dead and, on the other hand, subsection (3)'s requirement that sexual intercourse occur "without the consent" of the victim. In order to achieve a conviction for third-degree sexual assault under Wis. Stat. § 940.225(3), the State must still prove the element "without consent" beyond a reasonable doubt; that endeavor is subject to a simple proof when the victim is a corpse.

¶26      The defendants' ambiguity argument with respect to the consent element of the statute suggests that they believe an element of a crime is rendered superfluous merely because it is simple to prove. They are mistaken. An element of a crime is not rendered superfluous because that element might be relatively easy to prove under the facts of a particular case. Rather, an element of a statute is superfluous when it is redundant of some other portion of the statute. See, e.g., State v. Dibble, 2002 WI App 219, ¶15, 257 Wis. 2d 274, 650 N.W.2d 908 (concluding that "reckless" and "utter disregard" are two distinct elements); State v. Dauer, 174 Wis. 2d 418, 431-32, 497 N.W.2d 766 (Ct. App. 1993) (concluding that "verbal, written or printed" threats are not redundant in regard to the crime of extortion). Similarly, no redundancy is created by the "without consent" element of subsection (3).

Lack of consent is an element of necrophilia? Apparently so:
¶27      Moreover, the presence of subsection (7), which states that Wis. Stat. § 940.225 applies whether the victim is dead or alive, does not render the "without consent" element of subsection (3) superfluous. This is so because the statute also recognizes certain circumstances in which consent is "not an issue," thereby exempting the State from having to prove the lack of consent element in limited circumstances and without removing lack of consent as an element from other provisions. § 940.225(4). The absence of the circumstance of a dead victim from the list of circumstances in which consent is "not an issue" does not cause the lack of consent to become a superfluous element of the crime; rather, the absence merely leaves the element of consent intact. Subsection (7) reinforces that the State must prove that the sexual contact or sexual intercourse occurred without the victim's consent even though the victim is dead; by the plain meaning of its terms, subsection (7)'s application is not so limited as the defendants contend.
As to which the dissent sagely observes, “I don’t think a corpse can give consent,” ¶48. However, necrophilia supports neither first- nor second-degree sexual assault, ¶30.
§ 940.23(1), Reckless Injury - “Utter Disregard for Human Life” - Insufficient Proof, Interplay of Self-Defense
State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se
Issue/Holding: Miller incontrovertibly had some basis to fire a shotgun at his drunken, violent antagonist and even if not adequate to establish full self-defense was enough to defeat the reckless injury element of utter disregard for human life, thereby requiring entry of judgment of acquittal on remand, ¶¶31-44.
Lengthy clips from the court’s detailed analysis omitted, but make no mistake: this is a very significant case with potential ramifications for more than a few prosecutions, especially any crime having utter-disregard as an element where self-defense is raised. What it probably boils down to is that utter-disregard requires conduct for which there is no justification or excuse, and someone with a colorable claim of self-defense by definition will have some justification. Thus, the court indicates that pointing a loaded gun at someone evinces a depraved mind unless “otherwise defensible” even if not privileged, ¶37. Miller’s conduct was aimed at protecting himself and his friends from an aggressor and therefore not conduct for which “there is no justification or excuse,” ¶40. In this case, the court deeming the evidence uncontroverted, Miller’s conduct undoubtedly was not depraved-mind. In the typical case, the evidence might not establish enough justification to defeat the element incontestably, but could nonetheless support an argument to the jury on absence of depraved mind and/or some or another lesser-offense option not, of course, containing the utter-disregard element.

Note as well the court’s recognition, ¶35 n. 12, that conduct occurring after the injury-causing event isn’t necessarily less important than before-and-during conduct. That’s probably something that cuts both ways, but in this case helps Miller.

Finally, given the result, the court didn’t have to discuss the underlying question, which was whether counsel performed deficiently in not discussing a lesser offense option with Miller. The dissent, however, deems the evidence sufficient and proceeds to discuss the subsidiary issue at length, ¶¶81-95, concluding that submission of a lesser is a matter of trial tactics delegated to counsel rather than a personal decision residing with the defendant.

§ 940.23(1), Reckless Injury, Multiple Charges – Same Victim, Multiple Blows 
State v. Rachel W. Kelty, 2006 WI 101, reversing unpublished decision
For Kelty: Michael J. Fairchild
Issue/Holding: The defendant’s striking the victim “twice with two separate objects, each time committing herself to strike the baby, each blow separate, distinct, not identical in fact,” supports two separate charges of first-degree reckless injury, § 940.23(1)(a), ¶¶49-50.
§ 940.23(1), Reckless Injury -- "Utter Disregard for Human Life"
State v. Stephen L. Jensen, 2000 WI 84, 236 Wis. 2d 521, 613 N.W.2d 170, affirming unpublished decision.
For Jensen: James L. Fullin, SPD, Madison Appellate
Issue1: Whether the first degree reckless injury (§ 940.23(1)) element of "utter disregard for human life" requires proof of the actor's subjective awareness of the risk of death.
Holding: "¶17 Although 'utter disregard for human life' clearly has something to do with mental state, it is not a sub-part of the intent element of this crime, and, as such, need not be subjectively proven. It can be (and often is) proven by evidence relating to the defendant's subjective state of mind -- by the defendant's statements, for example, before, during and after the crime. But it can also be established by evidence of heightened risk, because of special vulnerabilities of the victim, for example, or evidence of a particularly obvious, potentially lethal danger. However it is proven, the element of utter disregard for human life is measured objectively, on the basis of what a reasonable person in the defendant's position would have known. If proven, the offender is considered more culpable because the conduct, according to the standards observed by the great mass of mankind, went beyond simple criminal recklessness to encompass something that, although falling short of an intentional crime, still deserves to be treated more seriously under the law and punished more severely." (Note: "utter disregard" has the same meaning as "depraved mind," used in predecessor statutes. ¶¶18-20.)
Issue2: Whether the evidence sufficiently established the "utter disregard" element.
Holding: Evidence that the adult defendant violently shook a 10-week old baby in a fit of anger, causing severe similar trauma equivalent to being dropped three stories, satisfied this element, notwithstanding a 911 call for help after the act. ¶¶24-33
Go To SCt Brief
Go To COA Brief
§ 940.24, Negligent Offenses -- handling dangerous weapon - dogs
State v. Jene R. Bodoh, 226 Wis.2d 718, 595 N.W.2d 330 (1999), affirming State v. Bodoh, 220 Wis.2d 102, 582 N.W.2d 440 (Ct. App. 1998).
For Bodoh: Michael D. Mandelman.
Holding: A dog can be a dangerous weapon if used or intended or intended to be used in a manner calculated or likely to cause death or great bodily harm. (This holding has the effect of ratifying a prior court of appeals decision on this point, State v. Sinks, 168 Wis. 2d 245, 252, 483 N.W.2d 286 (Ct. App. 1992).) Evidence of such intent was sufficient to sustain this § 940.24 conviction: evidence of Bodoh's dogs' aggressive nature, along with his failure to corrective action, was presented. § 940.24 requires that the actor "operate" or "handle" a dangerous weapon. "Operate" requires the actor's physical presence; Bodoh was away when the attack occurred and he therefore couldn't be guilty under this alternative. "Handle," though is broader & doesn't require physical presence. § 940.24 also require criminal negligence, or ordinary negligence to a high degree. Sufficient proof was made of the "substantial" risk of death or great bodily harm presented by the dogs, largely through prior aggressive, unprovoked incidents and expert testimony of Bodoh's inadequate efforts to contain them in a pen.
Injury by Intoxicated Use, § 940.25(1)(a) -- No Duty to Clarify Meaning of “Materially Impaired” Element Upon Jury Request
State v. Jonathan J. Hubbard, 2008 WI 92, reversing 2007 WI App 240
For Hubbard: Steven W. Zaleski
Issue: Whether, upon jury request for clarification of “materially impaired” under the instructions for injury by intoxicated use of a vehicle, § 940.25(1)(a), the trial court properly responded that the should “give all words not otherwise defined in the jury instructions their ordinary meaning.”
Holding:
¶57      The circuit court had discretion to determine the necessity for, extent of, and form of reinstruction of the jury when responding to its request for clarification. Hareng, 90 Wis. 2d at 166 (citations omitted). Judge Wolfgram could have exercised his discretion by instructing the jury to re-read the jury instructions in their possession in light of the jury's request for a definition of "materially" impaired. "[A] court is not obligated to provide a jury with information solely because the jury believes it is important to its decision." State v. Lombard, 2004 WI App 52, ¶20, 271 Wis.  2d 529, 678 N.W.2d 338. However, once Judge Wolfgram correctly determined that "materially impaired" was not defined by "the Waalen language," he did not erroneously exercise his discretion by responding that the jury should give undefined words in the jury instructions their ordinary meaning. "If the overall meaning communicated by the instructions was a correct statement of the law, no grounds for reversal exist." Fischer, 168 Wis. 2d at 850 (citations omitted).

¶58      We hold that the court of appeals erred when it determined that this court's decision in Waalen gave the statutory term "materially impaired" a "peculiar meaning in the context of criminal charges," Hubbard, 306 Wis. 2d 356, ¶12, and that the jury should have been instructed accordingly. Id., ¶17. Thus, the circuit court did not erroneously exercise its discretion when it responded to the jury's request for clarification by indicating that the jury should "give all words not otherwise defined in the jury instructions their ordinary meaning." This succinct answer may not always suffice, but it was correct on the facts presented.

As the Chief Justice points out in concurrence (¶74), Waalen “made clear that the meaning of ‘materially’ for purposes of Wis. Stat. § 939.22(42) is less demanding of the prosecution than the term ‘substantially’ which constitutes the ordinary dictionary meaning of ‘materially.’” The net result, as the Chief then points out, is that the challenged instruction made it harder than necessary for the State to obtain a conviction.
Injury by Intoxicated Use of Motor Vehicle, § 940.25(1)(am) -- Constitutionality
State v. Eric Benjamin Gardner, 2006 WI App 92
For Gardner: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding1: The elements of § 940.25(1)(am) – the defendant operated a vehicle with “a detectable amount of a restricted controlled substance in his or her blood, and the operation of the vehicle caused great bodily harm to the victim – do not create any presumption so as to relieve the State of its burden of proof, ¶¶11-12:
Rather, the statute simply defines the elements of the offense. See State v. Ulrich, 478 N.E.2d 812, 820 (Ohio Ct. App. 1984) (“The present statute does not presume; rather, it defines what specific conduct is prohibited.”). Thus, if the State proves both elements beyond a reasonable doubt, a defendant is not presumed guilty—he or she is guilty of those elements.
Issue/Holding2: § 940.25(1)(am) does not violate the 8th amendment:
¶13      Gardner also contends that the statutes here create an impermissible “status offense.” See Robinson v. California, 370 U.S. 660, 682 (1962); State v. Bruesewitz, 57 Wis. 2d 475, 479-80, 204 N.W.2d 514 (1973) (Eighth Amendment prohibits “making it a crime to be ‘addicted’ to narcotics …. Criminal liability [cannot] be based on the mere status of addiction.”). We reject Gardner ’s contention.

¶14      The statutes involved here penalize conduct, not status. The statutes prohibit operation of a vehicle with a detectable amount of a restricted controlled substance in one’s blood and the causing of great bodily harm as a result of that operation of a vehicle. Thus, a defendant is not being penalized simply for being a drug addict. A defendant cannot be prosecuted under Wis. Stat. § 940.25(1)(am) unless he or she actually engages in conduct—operation of a vehicle such that great bodily harm is caused to another human being. The United States Supreme Court made it clear that Robinson does not apply in the context presented in the instant case. See Powell v. Texas, 392 U.S. 514, 532-36 (1968) ( Robinson does not prevent states from punishing defendants who engage in behavior which the state has an interest in preventing; it does not prohibit penalizing conduct).

Issue/Holding3: Absence of causation from required proof doesn’t invalidate § 940.25(1)(am):
¶16      Gardner is correct that the legislature did not include, within the commission of this crime, the requirement that the State prove that the defendant’s ingestion of a controlled substance caused the injury. Rather, the legislature criminalized a specific act—driving with any amount of a restricted controlled substance in one’s blood, where the driving causes great bodily injury to another human being. Thus, the only causal connection required is that the operation of the vehicle caused the injury. …

¶17      Thus, that leaves us with the question of whether the legislature’s enactment, without requiring a causal link between drug use and the injury as an element of the crime, in some way violates its authority. We cannot reach such a conclusion. First, Gardner fails to provide any authority to suggest that the legislature violated its authority in writing Wis. Stat. § 940.25(1)(am) & (2)(a). Second, this court recently held constitutional Wis. Stat. § 346.63(1)(am) (“No person may drive or operate a motor vehicle while: … The person has a detectable amount of a restricted controlled substance in his or her blood.”). See State v. Smet, 2005 WI App 263, ¶1, ___ Wis. 2d. ___, 709 N.W.2d 474. …

¶18      Third, our supreme court addressed a similar issue in State v. Caibaiosai, 122 Wis. 2d 587, 594, 363 N.W.2d 574 (1985). In that case, the court discussed the causation element of the offense proscribed in Wis. Stat. § 940.09(1)(a), homicide by intoxicated use of a vehicle, which requires only a causal connection between the operation of a vehicle and the resulting injury. The homicide statute does not “include as an element of the crime a direct causal connection between the fact of defendant’s intoxication … and the victim’s death….  [P]roof of [the offense] need not require causal connection between the defendant’s intoxication and the death.” Caibaiosai, 122 Wis. 2d at 594.

Issue/Holding4:
¶22      Finally, we address Gardner ’s contention that Wis. Stat. § 940.25(2)(a), creating a defense to the crime, improperly transfers the burden of proof from the State to the defendant. We reject his contention.

¶23      The legislature, in enacting this statute, provided a defendant with a true affirmative defense in Wis. Stat. § 940.25(2)(a), which permits a defendant to show that the presence of the illegal drug was not the cause of the accident—that the injury would have occurred even if he or she had not used illegal drugs and driven. The affirmative defense provided for in the statute constitutes an absolute defense to the criminal act. “Due process does not prohibit the state from placing the burden of proving an affirmative defense on the defendant.” State v. McGee, 2005 WI App 97, ¶16, 281 Wis. 2d 756, 698 N.W.2d 850.

False Imprisonment, § 940.30 – Sufficiency of Evidence, Element of “Confined” or “Restrained”
State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers
Issue: Whether “restrained or confined” element of false imprisonment was established where the defendant hugged the complainant tightly while committing an act of sexual contact.
Holding:
¶28      This court has previously explained that confinement is the "restraint by one person of the physical liberty of another." Herbst v. Wuennenberg, 83 Wis.  2d 768, 774, 266 N.W.2d 391 (1978). Nothing in the statute or our case law limits confinement to situations where the defendant locks another person in some sort of structure, as Long suggests.

¶29      In this case, Bobbie D. testified, "He just kept holding on very tight and both arms were around and it was just very tight and he didn't let go." We conclude that, based on such testimony, a reasonable jury could have determined beyond a reasonable doubt that Long restrained Bobbie D.'s physical liberty.

False Imprisonment, § 940.30 – Sufficiency of Evidence, Element of “Consent”
State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers
Issue/Holding: Consent, for purposes of false imprisonment, is defined comparably to sexual assault:
¶31      Consent is not defined in the false imprisonment statute. Nonetheless, the term is defined in the sexual assault statute as “words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have . . . sexual contact.” Wis. Stat. § 940.225(4). In the context of sexual assault, consent requires an affirmative indication of willingness. A failure to say no or to resist does not constitute consent.

¶32      In the context of false imprisonment, we also define consent as words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to be confined or restrained. See id. Long does not point to any words or actions by Bobbie D. that would indicate her freely given agreement to be confined or restrained. Under these circumstances, we conclude that even if the jury did not believe that Bobbie D. said no, a reasonable jury could have determined beyond a reasonable doubt that she did not consent to the restraint.

Stalking, § 940.32(2), Generally
State v. Janet A. Conner, 2009 WI APP 143, PFR filed 9/28/09
For Conner: J. Steven House
Issue/Holding:
¶11      Wisconsin Stat. § 940.32 creates three distinct classifications of stalking offenses. See State v. Warbelton, 2009 WI 6, ¶24, 315 Wis. 2d 253, 759 N.W.2d 557. Subsections (2) and (2e) each set forth separate requirements for Class I felony stalking. Relevant to this appeal is sub. (2), which provides that to be guilty of stalking, a defendant must have “engage[d] in a course of conduct directed at a specific person” and that the actor “knows or should know that at least one of the acts that constitute the course of conduct will cause the specific person to suffer serious emotional distress.” “Course of conduct” is defined as “a series of 2 or more acts carried out over time, however short or long, that show a continuity of purpose.” Section 940.32(1)(a). Subsection (2m) enumerates five factors which elevate a stalking offense under sub. (2) to a Class H felony. Subsection (3) enumerates three factors which elevate a stalking offense under sub. (2) to a Class F felony. [7]
Stalking, § 940.32(2m)(b) – Within 7 Years of Prior Conviction – Timing of “Course of Conduct” Acts
State v. Janet A. Conner, 2009 WI APP 143, PFR filed 9/28/09
For Conner: J. Steven House
Issue/Holding:
¶19      We conclude that the seven year time restriction specified in Wis. Stat. § 940.32(2m)(b) requires that only the final act charged as part of a course of conduct occur within seven years of the previous conviction, and does not restrict by time the other acts used to establish the underlying course of conduct element of sub. (2). [10] In the present case, there is no dispute that the final act charged, the keying of the Gainors’ vehicle, occurred within seven years of Conner’s previous conviction, and the jury properly considered the entire history of acts undertaken by Conner against James, showing a continuity of purpose, to establish Conner’s course of conduct. [11]
Stalking – “Course of Conduct” Acts, § 940.32(2m)(b) – Admissibility to Prove Element, not Propensity
State v. Janet A. Conner, 2009 WI APP 143, PFR filed 9/28/09
For Conner: J. Steven House
Issue/Holding: Evidence relating to prior acts allegedly committed by Connor against the stalking complainants was admissible to prove an element (“course of conduct”); and, because “course of conduct is not a status element,” Connor’s stipulation to the prior conviction embodying these acts didn’t preclude the state from proving the acts, ¶¶23-27.
Stalking, § 940.32(2m)(b) – Notice of Charge
State v. Janet A. Conner, 2009 WI APP 143, PFR filed 9/28/09
For Conner: J. Steven House
Issue/Holding: An information alleging the elements of stalking, § 940.32(2m)(b), but not the acts allegedly establishing the “course of conduct,” provided adequate notice of the charge; court rejecting argument that Connor deprived of notice of “time frame in which the crime allegedly occurred.”
State v. Kaufman, 188 Wis. 2d 485, 492, 525 N.W.2d 138 (Ct. App. 1994), distinguished, as involving crime for which state had discretion to charge as either continuous or single offense(s) and that information therefore didn’t notify Kaufman she would have to prepare a defense to a continuing offense, ¶32:
¶33      The present situation is different. Here, a course of conduct is an element of the charged offense, not a charging option within the State’s discretion. The law does not require that the information specify with particularity upon which dates the course of conduct occurred, and Conner provides no authority for such a requirement. The supreme court has stated that “[i]n drafting an information the state should not have to spell out every act which would comprise an element of the crime ….” Wilson v. State, 59 Wis. 2d 269, 275-76, 208 N.W.2d 134 (1973). Instead, allegations of the elements of the crime charged will suffice. Id. at 276.
Stalking, Having Prior Conviction for Violence, §§ 940.32(2) & (2m)(a) – Prior Conviction Is Element, not Penalty Enhancer
State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42
For Warbelton: Paul G. Lazotte, SPD, Madison Appellate
Issue/Holding: Prior conviction for a violent crime is element, not penalty enhancer, of stalking, §§ 940.32(2) & (2m)(a):
¶30      First, sub. (2m)(a) designates a list of specific crimes that elevate a simple stalking offense to a Class H felony. These enumerated prior convictions are for a specific set of violent crimes, prior stalking offenses, and harassment offenses. The legislature's focus on the nature of the prior crime, rather than the simple fact of a prior conviction, demonstrates that the legislature's intent was not simply to provide an enhanced punishment for habitual criminality. The selection of these specific crimes indicates that the legislature defined stalking as an aggravated crime when the perpetrator has a history of violent or obsessive behavior.

¶31      Second, although the habitual criminality statute provides a number of years that a judge may add to a sentence if there are prior convictions, the stalking statute specifies that defendants are guilty of a higher class of felony if they have specific prior convictions. …

¶32      Third, the stalking statute is not structured like the habitual criminality statute, which defines penalty enhancers rather than substantive elements. Instead, the stalking statute sets up three classes of stalking, with increasing punishments——Class I felonies under § 940.32(2), Class H felonies under § 940.32(2m), and Class F felonies under § 940.32(3).

§ 940.32(2) & (3)(c), Stalking -- Elements, Generally
State v. Ronnie L. Thums, 2006 WI App 173
For Thums: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding: Use of a weapon is an element of stalking with a dangerous weapon, and the offense has therefore not been committed until the weapon has been employed (though the offense of stalking has been), ¶8 and id., n. 2.
Stalking, § 940.32 -- Sufficiency of Evidence
State v. Michael A. Sveum, 220 Wis. 2d 396, 584 N.W.2d 137 (Ct. App. 1998)
For Sveum: Robert T. Ruth
Issue/Holding:
Johnson received several hang-up telephone calls on April 16, 1996. Sveum told Walls that he made the calls, and Walls relayed this information to Johnson. When asked how the phone calls made her feel, Johnson testified: "Scared. It was happening again." She also testified that she "was very afraid" that Sveum would hurt her. Based on this evidence, a reasonable jury could conclude that Johnson knew that Sveum placed the phone calls and that the calls induced fear in Johnson. Accordingly, we conclude that the evidence was sufficient to support Sveum's stalking conviction.
Attempted Intimidation of Witness, § 940.42 – Sufficiency of Evidence: Addressing Parent of Child-Witness
State v. Alvin M. Moore, 2006 WI App 61, PFR filed 3/21/06
For Moore: Donna L. Hintze, SPD, Madison Appellate
Issue: Whether an effort at dissuading a child witness which was directed at the child’s mother satisfies the elements of attempted intimidation of a witness, § 940.42.
Holding:
¶13      Underlying Moore ’s argument is his assumption that the State had to prove that Tamika was shown, or apprised of, the letters before Moore could be found guilty. [8] Under the circumstances of this case, we disagree. Regardless of whether the letters were addressed to Tamika or whether she was aware of their contents, it is obvious that Moore attempted to dissuade Tamika through her mother, Theresa. Theresa, as the parent of the minor child, had the parental responsibility and practical authority to monitor communications by third parties with her child, and to influence whether Tamika cooperated with the court proceedings. We conclude that there was sufficient evidence to convict Moore of attempting to intimidate Tamika.
 [8]   Moore also assumes that the reason he was charged with attempting to dissuade, as opposed to dissuading, Tamika was that Tamika ultimately did testify. The State does not appear to quarrel with this assumption. We will likewise assume for purposes of this opinion that because Tamika chose to testify, Moore was appropriately charged with attempting to dissuade her from testifying.
Attempted Intimidation of Witness, § 940.42 – Elements
State v. Alvin M. Moore, 2006 WI App 61, PFR filed 3/21/06
For Moore: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
¶10      To prove attempted intimidation of Tamika, the State was required to prove that: (1) Tamika was a witness; (2) Moore attempted to dissuade her from attending a proceeding or giving testimony at a proceeding authorized by law; and (3) Moore acted knowingly and maliciously. See Wis JI—Criminal 1292 (2000). The pattern jury instruction further suggests a definition of attempt: 
Attempt requires that the defendant intended to (prevent) (dissuade) (name of victim) from attending or giving testimony and did acts which indicated unequivocally that the defendant had that intent and would have (prevented) (dissuaded) (name of victim) from attending or giving testimony except for the intervention of another person or some other extraneous factor.
Id.   The instruction defines “dissuade” as “‘to advise against’ or ‘to turn from by persuasion.’” Id. (quoting Webster’s New Collegiate Dictionary).
Attempted Intimidation of Witness, § 940.42 – Multiplicity: Multiple Counts, Same Witness
State v. Alvin M. Moore, 2006 WI App 61, PFR filed 3/21/06
For Moore: Donna L. Hintze, SPD, Madison Appellate
Issue: Whether separate counts are supported for attempted intimidation of the same witness, representing each separate letter sent by the defendant to the witness imploring her not to testify against him.
Holding: Multiple counts are permissible, at least where each count is based on distinct facts, because: The statutory language does not rebut the presumption that the legislature intended multiple punishments, ¶21; policy concerns (attempts to intimidate a witness directly assault judicial integrity) support “charging a person wit a separate count for each letter sent, and/or each other act performed, for the purpose of attempting to ‘dissuade’ any witness from attending or giving testimony at a court proceeding or trial,” ¶25; the nature of the proscribed conduct is such that telescoping all acts into one count “would remove all incentive to discontinue intimidating acts once an actor had completed one such act,” ¶26.
A not uncommon situation, in Milwaukee anyway: the defendant contacts the complainant and asks her not to testify. In this instance, he beseeched her in seven different letters. (There happened to be two different witnesses, mother and daughter, and Moore wants them both not to testify, so it’s 7 letters x 2). His trust was apparently misplaced and rather than refuse to testify, the recipient took all the letters to the authorities, so that Moore ended up with 14 counts of attempted intimidation. (As the court notes, “intimidation” somewhat overstates the elemental showing: attempts at “dissuasion” suffice, ¶1 n. 2.) On the other hand … each series of letters represents a single effort aimed at a unitary goal, namely dissuading a witness from testifying. Should multiple such letters be regarded as a single, continuing offense or, as the court of appeals holds, multiple discrete crimes? What if the witness had indeed been dissuaded? Would there then be 6 attempts and 1 completed witness-intimidation? How would you identify which was which?
Intimidation of Crime Victim, § 940.44(2) – Elements – Coverage of Intimidation after Complaint Filed
State v. Stephen A. Freer, 2010 WI App 9, PFR filed 12/30/09
For Freer: Suzanne L. Hagopian, SPD, Madison Appellate
Issue/Holding: Intimidation of a crime victim, § 940.44(2), isn’t restricted to conduct occurring before the victim reports the crime to the police but, rather, covers conduct after the complaint has been filed:
¶24   In light of the LRB analysis, we conclude that the legislature intended the victim intimidation statute to prohibit any act of intimidation that seeks to prevent or dissuade a crime victim from assisting in the prosecution. Accordingly, we read “and” in the phrase “causing a complaint … to be sought and prosecuted and assisting in the prosecution thereof” in the disjunctive, and thereby conclude that Wis. Stat. § 940.44(2) prohibits knowingly or maliciously preventing or dissuading a crime victim from providing any one or more of the following forms of assistance to prosecutors: (1) causing a complaint, indictment or information to be sought; (2) causing a complaint to be prosecuted; or (3) assisting in the prosecution.
Shorter version: We need to fill in a gap in the statute, otherwise this guy walks.
§ 943.23(1r), Carjacking: Operating Vehicle Without Owner's Consent Resulting in Death -- Sufficiency of Evidence, Causation.
State v. Earl L. Miller, 231 Wis.2d 447, 605 N.W.2d 567 (Ct. App. 1999).
For Miller: Eduardo M. Borda.
Issue: Whether an act may satisfy the "substantial factor" test for causation element if it merely plays a prominent rather than lone role in the proscribed result.
Holding: Causation is satisfied by any significant, not necessarily the sole, factor resulting in death.
Analysis: Miller was convicted of operating a vehicle without owner's consent resulting in death (carjacking), § 943.23(1r). Miller was trying to burn a dealer in a drug deal - Miller and others seized the victim and drove off in the victim's car in order to get drugs from his residence. When the victim tried to escape from the car, Miller shot and killed him. Did Miller's taking the vehicle "cause" the death? Yes. Causation requires only a "substantial factor," which prior case law says need not be the sole, immediate, or even primary cause of death. ¶¶11-12. "Thus, we conclude that a substantial factor contemplates not only the immediate or primary cause, but other significant factors that led to the ultimate result." ¶14. Though the court doesn't say so explicitly, this is the familiar "but-for" test: if Miller hadn't taken the car, the victim wouldn't have been shot, trying to escape. ¶15. This is so, even granting that the focus of the event was obtaining drugs not stealing the car: "The vehicle, however, was an integral instrument in the commission of [the] kidnapping," and its taking therefore "played a prominent role in [the] death." ¶16. The court cautions that peripheral or completely attenuated events won't suffice. ¶17. (Note: This result shows the difficulty in challenging causation. Another way of looking at this case is to ask whether the victim's attempted escape was an intervening circumstance which amounted to an independent cause. The answer to that question is undoubtedly no, especially after State v. Oimen, 184 Wis. 2d 423, 516 N.W.2d 399 (1994): acts taken by a victim in direct response to an assault will rarely if ever break a causal connection, even when the victim himself becomes violent. Besides, it a bit hard to argue attenuation when you yourself shoot the victim. The question might have been a bit closer if the issue was a codefendant's ptac liability for Miller's act, though even then the outcome probably wouldn't be different - see State v. Glenn, 199 Wis.2d 575, 545 N.W.2d 230 (1996). Why charge carjacking, instead of first-degree intentional homicide? Probably because carjacking/causing-death (also a Class A felony) doesn't require proof of that nettlesome element of intent.)
Homicide -- Causation -- "Year and a Day" Rule
State v. Waylon Picotte, 2003 WI 42, on certification
For Picotte: John T. Wasielewski
Issue: Whether conviction for homicide is barred because the victim did not die within a year and a day of infliction of the fatal injuries.
Holding:
¶5. We disagree with the circuit court and hold that the defendant's conviction in this case is barred by the common-law year-and-a-day rule. In order to reach this conclusion, we must address four successive questions of law that this court decides independent of the circuit court but benefiting from the circuit court's analysis. The four questions and this court's answers to them are as follows:
1. Is the common-law year-and-a-day rule the law in Wisconsin? We agree with both the State and the defendant that the year-and-a-day rule has been the law of Wisconsin since statehood, preserved through Article XIV, Section 13 of the Wisconsin Constitution.

2. If the year-and-a-day rule is the law in Wisconsin, does this court have the authority to abrogate the rule? This court has the authority to develop the common law and therefore may abrogate the year-and-a-day rule.

3. If this court has the authority to abrogate the year-and-a-day rule, do sufficiently compelling reasons exist for this court to do so now? This court should abrogate a common-law rule when the rule becomes unsound. We conclude that the year-and-a-day rule is an archaic rule that no longer makes sense. Accordingly, the court abolishes the rule.

4. Should the abrogation of the year-and-a-day rule apply to the defendant in the present case? The court may change or abrogate a common-law rule either retroactively or prospectively. We conclude that purely prospective abrogation of the year-and-a-day rule best serves the interests of justice. Thus, prosecutions for murder in which the conduct inflicting the death occurs after the date of this decision are permissible regardless of whether the victim dies more than a year and a day after the infliction of the fatal injury. The prosecution for first-degree reckless homicide in the present case, however, remains subject to the year-and-a-day rule, and because the fatal injury in the present case was inflicted more than a year and a day before the death of the victim, the defendant's conviction for first-degree reckless homicide is reversed.

(This is all clear enough: The year+ rule is viable up to 5/16/03, null subsequently. Conduct ultimately resulting in death must occur on or after 5/17/03 in order to come within the new (post-abrogation) regime. Beyond that, it is "clear that Article XIV, Section 13 specifically incorporates the common law of England as it existed in 1776 into the law of this state.” ¶10. Discerning which common law rules might require resort to such authorities as this (Blackstone); or this (Bracton); or this (Hale). Keep in mind that the supreme court has the authority to abrogate your genealogical effort, ¶24, and isn’t indifferent to its exercise, see State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998).
(What, though, of the practical impact of this particular holding? It’s not known how many prosecutions are or might be affected. But State v. Trevor McKee, 2002 WI App 148, holds that neither double jeopardy not lesser-offense statutes bar prosecution for homicide when the victim dies following the defendant's conviction and sentence for assaultive offenses related to the incident ultimating resulting in that death. In short, McKee eliminates possible procedural bar to prosecution; Picotte eliminates the substantive defense of no-causation. (Causation, of course, remains challengeable, but the "substantial factor" test is so easily met that such a challenge will very rarely be viable.)