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9. Theory of Defense

State v. Joseph T. Langlois, 2016AP1409-CR, petition for review of a published court of appeals decision granted 12/13/17; case activity (including briefs) Issues (composed by On Point): 1. Was trial counsel ineffective for failing to object to the jury instructions for self defense and accident on the lesser included charge of homicide by negligent handling… Read More

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Of reasonable inferences and fearful jurors

State v. Isiah O. Smith, 2015AP1645-CR, 11/15/16, District 1 (not recommended for publication); case activity (including briefs) Two guys walk into an apartment complex and leave a short time later. One carried a gun and a cell phone; the other a cell phone. They got into a car belonging to a friend of the guy… Read More

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State v. Joseph Gayden, 2010AP2360-CR,District 1, 8/30/11 court of appeals decision (not recommended for publication); for Gayden: Matthew S. Pinix; case activity The difference between Wis JI-Criminal 800 and 805 is that the latter limits the defendant’s intentional use of force intended or likely to cause death or great bodily harm to reasonable belief that the force is necessary to… Read More

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State v. Kelly J. McCredie, 2010AP1179-CR, District 2, 3/2/11 court of appeals decision (not recommended for publication); for McCredie: William E. Schmaal, SPD, Madison Appellate; case activity For purposes of 3rd-degree sexual assault, § 940.225(3), the actor cannot obtain consent by deceiving the victim as to his true identity. McCredie misled the victim into thinking… Read More

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State v. Esteban M. Gonzalez, 2010 WI App 104, reversed, 2011 WI 63, see: this post; for Gonzalez: Kristin Anne Hodorowski; BiC; Resp.; Reply Jury Instructions – Exposing Child to Harmful Materials The pattern instruction on exposing a child to harmful material, § 948.11(2)(a), accurately recites the elements, including scienter. ¶11 We agree with the trial… Read More

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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

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State v. LaVere D. Wenger, 225 Wis.2d 495, 593 N.W.2d 467 (Ct. App. 1999) For Wenger: Richard L. Wachowski Holding: Duty-to-retreat instruction, Wis JI-Crim 810, properly submitted, though retreat would have been into defendant’s own home: Here, the trial court used the pattern instruction to inform the jury of the applicable law on retreat.  The… Read More

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