State v. Zachary P. Stuckey, 2013 WI App 98; case activty The court of appeals concludes that the prohibition in § 948.10 against exposing genitals to a child is a “variable obscenity” statute, and to avoid unconstitutional application it must be read to require proof the defendant knew he was exposing himself to someone under the age… Read more
1. Constitutional issues
State v. Nicholas M. Gimino, 2012AP1498-CR, District II/IV, 3/7/13 (unpublished); case activity. While this decision is not recommended for publication, it highlights a very touchy subject–when does conduct many parents engage in rise to the level of physical abuse of a child? The answer may surprise you. Here’s what happened. Gimino took his 2-year-old daughter for a… Read more
State v. Christopher J. Lesik, 2010 WI App 12, PFR filed For Lesik: Anthony Cotton Issue/Holding: Sexual assault (intercourse) of a child, § 948.02, isn’t unconstitutionally overbroad, against a theory that it criminalizes acts undertaken for “proper medical purpose.” Although the statute is silent with respect to medical conduct, potential overbreadth may be cured through judicial construction… Read more
State v. Shawn B. Ebersold, 2007 WI App 232 For Ebersold: Lester A. Pines Issue: Whether message sent via Internet chat room supports prosecution for § 948.11(2)(am), verbally communicating harmful material to child. Holding: ¶9 In this case, the parties dispute whether Wis. Stat. § 948.11(2)(am) prohibits communication of a harmful description or narrative account to… Read more
State v. Thomas A. Nommensen, 2007 WI App 224 For Nommensen: Anthony L. O’Malley Issue/Holding: Although charges of repeated sexual assault, § 948.025(1) were the same in law, they were different in fact because they : ¶8 Charged offenses are not multiplicitous if the facts are either separate in time or of a significantly different… Read more
State v. James F. Brienzo, 2003 WI App 203, PFR filed 10/10/03 For Brienzo: Jerome F. Buting Issue/Holding: Prosecution for attempted sexual assault of a child initiated over the Internet isn’t barred by the first amendment. ¶¶23-24, applying State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287 (permitting prosecution for enticement). Same… Read more
State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03 For Schaefer: Jefren E. Olsen, SPD, Madison Appellate Issue/Holding: Individual pornographic photos, all found on the same storage disk, support individual charges, it being “reasonable to assume that the existence of multiple files on the Zip disk demonstrates that Schaefer made a new decision to… Read more
State v. Brian D. Robins, 2002 WI 65, on bypass For Robins: Craig W. Albee Issue: Whether prosecution for child enticement initiated over the Internet violates the first amendment. Holding: The first amendment doesn’t extend to speech that is incidental to or part of the criminal course of conduct. ¶43. The child enticement statute regulates conduct, not speech… Read more
