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Curative Instruction; Theft by Fraud – Sufficiency of Proof

State v. Lea B. Kolner, 2010AP1233-CR, District 3, 11/2/10

court of appeals decision (1-judge, not for publication); for Kolner: R. Michael Waterman; BiC; Resp.; Reply

Curative Instruction

Any impropriety in the prosecutor’s opening statement (alleged comment on right to silence) was presumptively cured by the trial court’s instruction to disregard the entire opening statement.

¶11      Not all errors warrant a mistrial, and “the law prefers less drastic alternatives, if available and practical.”  State v. Bunch, 191 Wis. 2d 501, 512, 529 N.W.2d 923 (Ct. App. 1995).  For instance, there is no erroneous exercise of discretion when, in lieu of a mistrial, the court cures potential prejudicial effect by instructing the jury to disregard an improper statement.  Haskins, 97 Wis. 2d at 420.  “Where the trial court gives the jury a curative instruction, [we] may conclude that such instruction erased any possible prejudice, unless the record supports the conclusion that the jury disregarded the trial court’s admonition.”  Sigarroa, 269 Wis. 2d 234, ¶24.

¶12      Here, the trial court properly exercised its discretion by issuing a curative instruction rather than granting Kolner’s motion for a mistrial.  The court instructed the jury to disregard not just the prosecutor’s improper comments, but his entire opening statement.  The court also gave the standard jury instruction that attorney comments are not evidence.  See Wis JI—Criminal 157 (April 2000).  Taken together, these instructions were sufficient to obviate any potential prejudice to Kolner.  Kolner has not pointed to any evidence that the jury disregarded the court’s instructions.

Theft by Fraud – Sufficiency of Proof

Conviction for theft by fraud, § 943.20(1)(d), upheld against challenge to sufficiency of evidence, ¶¶13-21. (State’s theory was that Kolner tricked cashier into giving her change for $100 bill that she in fact hadn’t given him.) Elements of offense, standard of review for sufficiency claim, recited. Routine discussion.

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