court of appeals decision (not recommended for publication), reversed, 2011 WI 32; for Burris: Byron C. Lichstein; BiC; Resp.; Reply Answer to Jury Question – Misleading Definition of “Utter Disregard” Trial court answer to jury question misleading as to whether jury could consider post-shooting conduct as bearing on “utter disregard” element, entitling Burris to new… Read more
F. Instructions
court of appeals decision; for Lesik: Anthony Cotton Overbreadth challenge to 948.02, sexual assault of a child 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… Read more
State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion For Ferguson: Jefren E. Olsen, SPD, Madison Appellate Issue/Holding: Where it was clear not only that Ferguson obstructed the police outsideher apartment but also that the jury so found, arguable omission of a “complete” instruction on whether the police acted with lawful authority in entering her apartment was… Read more
See summary of State v. Thomas Scott Bailey Smith, Sr., 2005 WI 104, here. Omitted Issues – Stalking: Submission to Jury of Prior Conviction for “Violence” Despite Stipulation State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42 For Warbelton: Paul G. Lazotte, SPD, Madison Appellate Issue/Holding: On a trial for stalking… Read more
State v. Jason K. Van Buren, 2008 WI App 26, PFR filed 1/23/08 For Van Buren: Waring R. Fincke Issue/Holding: Counsel’s failure to request a specific unanimity instruction with respect to juror agreement on which of the identified pictures was both harmful and shown to the victim was not prejudicial: ¶22 We reject this claim… Read more
State v. David A. Dearborn, 2008 WI App 131, affirmed, 2010 WI 84, ¶2 n. 3 For Dearborn: Eileen A. Hirsch, SPD, Madison Appellate Issue/Holding: Unanimity is not required on whether the defendant “resisted” or “obstructed” a warden on a charge of violating § 29.951, ¶¶21-42. All the rest is commentary. (Translated: the court undertakes a… Read more
State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31 For Schultz: Stephen L. Morgan, Jennifer M. Krueger Issue/Holding: Jury instructions on the elements of duty and intent under § 946.12(3) created mandatory conclusive presumptions: ¶10 Schultz contends that the following… Read more
State v. Shon D. Brown, 2003 WI App 34, PFR filed 2/3/03 For Brown: Robert T. Ruth Issue: Whether defendant was entitled to an instruction on territorial jurisdiction, § 939.03, where the offense was partially committed out of the state. Holding: ¶23. The question of whether or when a jury must be instructed on the… Read more
