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Court Error – GPS Data Evidence

By: Derek Hawkins//May 3, 2017//

Court Error – GPS Data Evidence

By: Derek Hawkins//May 3, 2017//

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Kyle Lee Monahan

Case No.: 2014AP2187

Officials: Kloppenburg, P.J., Higginbotham and Sherman, JJ.

Focus: Court Error – GPS Data Evidence

Kyle Monahan appeals a judgment of conviction entered upon a jury verdict finding Monahan guilty of homicide by intoxicated use of a motor vehicle. The charge stems from an auto accident where Rebecca Cushman, Monahan’s girlfriend, was thrown from the car in which Cushman and Monahan were riding. Cushman died from her resulting injuries. The sole issue at trial was whether Monahan was driving the motor vehicle at the time of the accident. The sole issue on appeal is whether the circuit court erroneously excluded evidence of GPS data that measured the speed of the car when Cushman purportedly was the driver.

The State concedes on appeal that the circuit court erred in excluding the challenged GPS data as “other acts” evidence, and the State does not provide an alternative basis for us to affirm the court’s evidentiary ruling. We do not weigh in on whether the court erroneously excluded the GPS data. However, for purposes of this appeal, we accept the State’s concession. Having accepted the State’s concession that the court erred in excluding the GPS data, our inquiry turns to whether the court’s error was harmless. For the reasons we explain below, we conclude that the court’s error constituted harmless error.

The State cross-appeals the circuit court’s order vacating the $250 DNA surcharge the court imposed on Monahan at sentencing, pursuant to WIS. STAT. § 973.046(1r)(a) (2015-16). The issue on the cross-appeal is whether imposition of the mandatory $250 DNA surcharge violates the ex post facto clauses of the United States and Wisconsin Constitutions, and therefore, whether the statute is unconstitutional as applied to Monahan. Our supreme court in State v. Scruggs, 2017 WI 15, 373 Wis. 2d 312, 891 N.W.2d 786, considered the same issue presented in this case, and concluded there that the statute does not violate

the ex post facto clauses on the ground that the defendant failed to establish that the statute was punitive in intent or effect. Our decision in this case is guided by the court’s decision in Scruggs, and therefore, as in Scruggs, we reject Monahan’s contention that § 973.046(1r)(a) is unconstitutional as applied to him. Accordingly, we affirm in part and reverse in part and remand with directions.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

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