Year in Review 2008: Important Opinions (Part 2)

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In a trial for sexual assault of a child, an expert may not testify that in her opinion, a witness’ testimony was not coached.
2007AP2064-CR State v. Krueger
Issue date: 10/6/2008

When a minor’s oral statement is presented at trial instead of testimony, the court reporter must transcribe the testimony.
2008AP175-CR State v. Ruiz-Velez
Issue date: 11/3/2008

Testimony regarding death scene evidence is admissible expert testimony.
2007AP1785-CR State v. Swope
Issue date: 11/24/2008

First Amendment

Section 947.015, the bomb threat statute, does not violate the First Amendment.
2006AP2206 State v. Robert T.
Issue date: 1/21/2008

Identity Theft

The offense of identity theft is a continuing offense only until the defendant’s last act obtaining benefit from his crime, not for as long as the victim continues to suffer loss.
2007AP2357-CR State v. Lis
Issue date: 4/7/2008

The identity theft statute does not criminalize the act of defaming a public official, and therefore does not violate the First Amendment.
2007AP1289-CR State v. Baron
Issue date: 6/9/2008

Motor Vehicles

Where a vehicle is parked on the side of a highway with its hazard lights flashing, an officer is justified in approaching the vehicle in his community caretaker capacity.
2007AP1834-CR State v. Kramer
Issue date: 4/7/2008

The roadways of a gated community are public roads under the OWI statutes.
2007AP1783-CR State v. Tecza
Issue date: 4/28/2008

It does not violate an OWI defendant’s right to present a defense to exclude expert testimony based on the results of his PBT.
2007AP1898-CR State v. Fischer
Issue date: 9/15/2008

Where an intoxicated person was asleep in the driver’s seat, with the key in the ignition in the auxiliary position, the evidence was sufficient to prove he was operating the vehicle.
2007AP2757 State v. Mertes
Issue date: 12/8/2008

Probation and Parole

Extended supervision may be revoked based on behavior occurring while the defendant was on probation.
2007AP415 State ex rel. McElvaney v. Schwarz
Issue date: 6/9/2008

Receiving Stolen Property

Venue for a prosecution for receiving stolen property is proper in the county in which the property was stolen.
2007AP1773-CR State v. Lippold
Issue date: 7/28/2008

Repeater Enhancement

To prove repeater status, the State may submit repeater evidence at any time following the jury verdict up until the sentencing.
2007AP2687-CR State v. Kashney
Issue date: 10/6/2008

Resisting a Conservation Warden

In a prosecution for resisting a game warden, it does not violate the unanimity requirement to instruct the jury that it may find the defendant guilty if he either assaulted, resisted, or obstructed the warden.
2007AP1894-CR State v. Dearborn
Issue date: 8/4/2008

Search and Seizure

Where officers only intended to issue a municipal citation, their search incident to arrest was unlawful.
2006AP1104-CR State v. Marten-Hoye
Issue date: 2/4/2008

Moving objects to photograph them is not flagrant disregard of the warrant limitations, even if doing so exceeds the scope of the warrant.
2007AP1019-CR State v. Pender
Issue date: 2/25/2008

Where a citizen complained of drug dealing from the porch of a vacant residence, and drugs were present on the porch, the officer had reasonable suspicion to search the persons on the porch.
2007AP1578-CR State v. Limon
Issue date: 4/14/2008

Where a warrant did not identify which portion of a two-family residence is to be searched, the warrant is invalid.
2007AP1362-CR State v. Jackson
Issue date: 6/16/2008

A warrant that identified three residences, with search conditional on identifying which belonged to the suspect, is invalid.
2007AP1420-CR State v. King
Issue date: 7/28/2008

A guest at a trailer did not have a reasonable expectation of privacy in it.
2007AP685-CR State v. Fox
Issue date: 8/18/2008

Where an officer conducting a pat-down search felt plastic baggies, he had grounds to seize them.
2007AP1734-CR State v. Applewhite
Issue date: 8/25/2008

A defendant did not have a reasonable expectation of privacy in a gas station bathroom.
2007AP2346-CR State v. Neitzel
Issue date: 9/1/2008

Even though police accompanied a probation officer in conducting a search of a probationer’s residence, that did not transform the search into a police search, and therefore the probation officer did not require a warrant to lawfully search the premises.
2007AP1989-CR State v. Jones
Issue date: 10/6/2008

Where a suspect was arrested with a gun, but ownership of the gun was uncertain, probable cause supported a search warrant for the suspect’s home.
2008AP80-CR State v. Casarez
Issue date: 10/20/2008

Where a suspect is under arrest and his cell phone rings, the officers may anwer it.
2007AP1378-CR State v. Carroll
Issue date: 11/3/2008

Even if officers’ entry into a home was unlawful, the fruits of a subsequent consensual search need not be suppressed.
2008AP880-CR U.S. v. Artic
Issue date: 12/15/2008

Sentencing

When concurrent sentences are imposed at the same time, credit due against any individual sentence need not be awarded against all concurrent sentences.
2007AP1114-CR & 2007AP1115-CR State v. Johnson
Issue date: 2/4/2008

A sentencing court’s failure to consider the guidelines is subject to harmless error analysis.
2007AP899-CR & 2007AP2008-CR State v. Sherman
Issue date: 3/24/2008

A court must explain its reasons for imposing a DNA surcharge.
2007AP1808-CR State v. Cherry
Issue date: 4/14/2008

A court may order a defendant to pay restitution from funds held in his prison account, even though it includes gifted funds.
2007AP269-CR State v. Greene
Issue date: 6/23/2008

A court can order that a defendant pay restitution, when a third party posted his bail and lost it, because he failed to comply with the conditions of his bond.
2006AP2646-CR State v. Agosto
Issue date: 9/29/2008

Two consecutive periods of extended supervision are computed as one continuous period, and both may be revoked upon violation of the conditions.
2007AP2580-CR State v. Collins
Issue date: 10/20/2008

Although an officer was injured while arresting the defendant, it was error to order restitution to his workers compensation insurer, where the injuries were unrelated to the crimes for which he was charged.
2008AP390-CR State v. Lee
Issue date: 11/10/2008

A court may impose new conditions of extended supervision at a reconfinement hearing.
2008AP778-CR State v. Harris
Issue date: 12/1/2008

Sex Offender Registry

Requiring a defendant to comply with the sex offender registry, based on a non-sexual false imprisonment conviction, is not unconstitutional.
2008AP1011-CR State v. Smith
Issue date: 12/22/2008

Sexually Violent Persons

Where the statement of a person alleged to be a sexually violent person was compelled, an expert’s opinion that used the statement must be excluded, as well as other testimony referring to the incident described in the written statement.
2005AP2393 In re the Commitment of Harrell
Issue date: 2/11/2008

A person against whom a Wis. Stat. ch. 980 petition has been filed is not entitled to a competency evaluation under sec. 971.14.
2007AP1840 State v. Luttrell
Issue date: 5/26/2008

A sexually violent person is entitled to an evidentiary hearing, even if the DHFS does not petition for discharge.
2008AP52 State v. Arends
Issue date: 11/24/2008

Stalking

A jury can hear evidence that a defendant has stipulated to having a previous conviction for a violent crime and should be instructed to make a finding on that matter when the defendant is on trial for a charge of stalking while having a previous conviction for a violent crime.
2007AP105-CR State v. Warbelton
Issue date: 2/25/2008

Theft

Theft of telephone services is theft of property, as defined is sec. 943.20(2)(b).
2007AP1877-CR State v. Howard
Issue date: 10/20/2008

Use of Computer to Facilitate Sex Crime

Transmission of a web cam is insufficient to constitute an act other than use of a computerized communications system to communicate that would support conviction for using a computer to facilitate a sex crime.
2008AP587-CR State v. Olson
Issue date: 10/13/2008