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2009AP1249-CR State v. Gonzalez

By: WISCONSIN LAW JOURNAL STAFF//July 8, 2011//

2009AP1249-CR State v. Gonzalez

By: WISCONSIN LAW JOURNAL STAFF//July 8, 2011//

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Exhibiting Harmful Material to a Child
Sufficiency of the evidence; jury instructions

In a prosecution for exhibiting harmful material to a child, the jury instructions must state that it must find the exhibition was done knowingly.

“We conclude that the jury was not instructed explicitly or implicitly that it had to determine whether the defendant had knowingly exhibited the harmful material to the child, as distinguished from accidentally or unknowingly exhibiting harmful material to the child. The jury instruction did not sufficiently define the first element of the crime, namely, that the State must prove beyond a reasonable doubt that the defendant knowingly exhibited the harmful material to the child. Accordingly, we are satisfied that the jury instruction misled the jury into believing that the State did not have the burden of proving beyond a reasonable doubt that the defendant knowingly exhibited the harmful material to the child. Viewing the jury instruction in light of the proceedings as a whole, we further conclude that the defendant has established a reasonable likelihood that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt and therefore applied the potentially confusing instruction in an unconstitutional manner.”
Reversed and Remanded.

2009AP1249-CR State v. Gonzalez

Abrahamson, C.J.

Attorneys: For Appellant: Schiro, Frank J., Milwaukee; Hodorowski, Kristin Anne, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Whelan, Maura F.J., Madison

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