On Point

State v. Jeremy Denton, 2009 WI App 78 / State v. Aubrey W. Dahl, 2009 WI App 78
For Denton: Paul G. Bonneson
For Dahl: Patrick M. Donnelly

Issue/Holding: Though merely incidental to robbery, kidnapping charge is supported on theory that ordering the victim to relinquish property holds that person to service against his or her will:

¶26      … The defendants contend that, under the State’s theory, every robbery would automatically include a kidnapping under Wis. Stat. § 940.31(1)(b) because a person is stopped (seized) and ordered to turn over money (held to service against one’s will). The defendants posit that the “held to service” language in the kidnapping statute “must be limited to situations of forced labor, or involuntary servitude.” …

¶27      We reject the defendants’ argument for two reasons. First, Wisconsin law recognizes that a defendant may be prosecuted for kidnapping even when the kidnapping is incidental to another charged crime. See Harris v. State, 78 Wis. 2d 357, 254 N.W.2d 291 (1977), criticized on other grounds by Wilson v. State, 82 Wis. 2d 657, 264 N.W.2d 234 (1978). …

¶28      Second, the defendants’ attempt to narrow the definition of the “held to service” element of kidnapping to “forced labor, or involuntary servitude” ignores prior case law. The defendants acknowledge that in State v. Clement, 153 Wis. 2d 287, 292, 450 N.W.2d 789 (Ct. App. 1989), we held that “[t]he word ‘service,’ as it is used in [Wis. Stat. §] 940.31, includes acts done at the command of another.” Although Clement set forth that definition while rejecting a defendant’s contention that a kidnapping charge could not “be fulfilled by sexual assault alone,” the definition of “service” remains the same. See Clement, 153 Wis. 2d at 292. We therefore conclude that the State was entitled to charge kidnapping in this case, and we reject the defendants’ contention that the kidnapping conviction must be reversed regardless of the sufficiency of the evidence.

The defendants probably are correct: henceforth, every robbery will also be a kidnapping, just as, after Clement, every sexual assault is also a kidnapping. The defendants are also correct in that historically, the hold-to-service kidnapping was aimed at involuntary servitude, e.g., Perry v. State, 853 P.2d 198, 202 (Okla. Ct. Cr. App. 1993), and not every single street crime under the sun. That said, those few courts who have dealt with the problem obdurately agree with Clement that for kidnapping purposes “service” more or less means any act performed upon command.

State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se

Issue/Holding:

¶52   We conclude as a matter of law that shooting a person in the thigh at a range of sixteen feet with a shotgun is practically certain to cause at least a protracted loss or impairment of the function of the person’s leg, and is therefore injury constituting “great bodily harm” within the meaning of the statutes. In so concluding, we reject Miller’s argument that, by aiming for Nakai’s thigh and not his abdomen, chest or head, a reasonable jury could conclude that he did not intend to cause Nakai great bodily harm.¶53   We further conclude that Miller, who had experience with firearms as an army reservist and a hunter, would have been aware that his conduct was practically certain to cause protracted loss or impairment of function of Nakai’s leg. We reject Miller’s argument that a reasonable jury could have concluded that Miller did not intend to cause Nakai great bodily harm based on his testimony that his purpose in shooting Nakai was “to stop him.” The fact that Miller’s conduct was intended to neutralize the threat posed by Nakai does not negate the fact that, by firing the shotgun at Nakai’s thigh, Miller also intended to cause Nakai great bodily harm by committing an act that he was aware was practically certain to result in great bodily harm to Nakai.

¶54      We conclude that, because the only reasonable view of the evidence is that Miller intended to cause Nakai “great bodily harm” as defined in Wis. Stat. § 939.22(14), no reasonable jury could have acquitted Miller of aggravated battery unless it accepted his defense of self-defense or defense of others. However, if a reasonable jury did accept one of those defenses, it would also acquit Miller of second-degree reckless injury. Thus, there is no reasonable basis in the evidence for an acquittal on the aggravated battery charge and a conviction on the second-degree reckless injury charge. Accordingly, Miller was not entitled to a lesser-included instruction for second-degree reckless injury for this charge.

The dissent would go farther, ¶¶81-95, and conclude that submission of a lesser is a matter of trial tactics delegated to counsel rather than a personal decision residing with the defendant.

State v. Dione Wendell Haywood, 2009 WI App 178
For Haywood: Robert E. Haney

Issue/Holding: In a battery-to-officer prosecution, it is no defense that the officer refused to leave the premises when the resident withdrew consent to enter, because acting “lawfully” is not an element:

¶11      The flaw in Haywood’s contention, however, is that a law-enforcement officer need not be acting “lawfully” for what he or she does to be done in the officer’s “official capacity.”  Rather, the officer need only be acting within his or her jurisdiction as an officer, State v. Barrett, 96 Wis. 2d 174, 180, 291 N.W.2d 498, 500–501 (1980), and not on some “personal frolic” unrelated to the officer’s law-enforcement responsibilities, State v. Schmit, 115 Wis. 2d 657, 665, 340 N.W.2d 752, 756 (Ct. App. 1983) (inner quotation marks and quoted source omitted).  The confluence of Barrett and Schmit are instructive.

¶12      First, as we see from Wis. Stat. § 940.20(2), there is no requirement that the officer/victim be acting lawfully when he or she is hit by a defendant.  “[T]he existence of a peace officer’s lawful authority is an element of the crime of resisting or obstructing an officer under sec. 946.41, Stats.  It is not an element of the crime of battery to a peace officer.”  Barrett, 96 Wis. 2d at 181, 291 N.W.2d at 501 (footnote added). …

…

¶14      Here, in contrast to both Barrett and Schmit, Officer Post was not on a “personal frolic” when Haywood hit him, but rather, was doing something “within the scope of what [Post] is employed to do.”  Accordingly, Haywood’s contention that the lawfulness of Post’s presence in the house where Haywood hit him was material to his violation of Wis. Stat. § 940.20(2) is without merit. Therefore, he is not entitled to discretionary reversal under Wis. Stat. § 752.35.

State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers

Issue: Whether use of force element of second-degree sexual assault was established where the defendant asked the complainant to rate his penis then hugged her so that she could feel his penis through their clothing.

Holding:

¶24      Long’s arguments are not persuasive. Under Wisconsin law, force has been used when the victim is compelled to submit. See State v. Bonds, 165 Wis.  2d 27, 32, 477 N.W.2d 265 (1991) (concluding that the force element of second-degree sexual assault was met when Bonds grabbed a woman’s nipple and squeezed it). In Bonds, the court said, “Force used at the time of contact can compel submission as effectively as force or threat occurring before contact. Regardless of when the force is applied, the victim is forced to submit.” Id.¶25      Here, Bobbie D. testified that Long grabbed her, hugged her tightly and forcibly, and that she was too afraid to cry out. From this testimony, the jury could have determined that Long forcibly held Bobbie D., compelling her to submit so that he could make sexual contact. We conclude that a reasonable jury could have determined beyond a reasonable doubt that the sexual contact was by use or threat of force or violence.

State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se

Issue/Holding: Miller incontrovertibly had some basis to fire a shotgun at his drunken, violent antagonist and even if not adequate to establish full self-defense was enough to defeat the reckless injury element of utter disregard for human life, thereby requiring entry of judgment of acquittal on remand, ¶¶31-44.

Lengthy clips from the court’s detailed analysis omitted, but make no mistake: this is a very significant case with potential ramifications for more than a few prosecutions, especially any crime having utter-disregard as an element where self-defense is raised. What it probably boils down to is that utter-disregard requires conduct for which there is no justification or excuse, and someone with a colorable claim of self-defense by definition will have some justification. Thus, the court indicates that pointing a loaded gun at someone evinces a depraved mind unless “otherwise defensible” even if not privileged, ¶37. Miller’s conduct was aimed at protecting himself and his friends from an aggressor and therefore not conduct for which “there is no justification or excuse,” ¶40. In this case, the court deeming the evidence uncontroverted, Miller’s conduct undoubtedly was not depraved-mind. In the typical case, the evidence might not establish enough justification to defeat the element incontestably, but could nonetheless support an argument to the jury on absence of depraved mind and/or some or another lesser-offense option not, of course, containing the utter-disregard element.Note as well the court’s recognition, ¶35 n. 12, that conduct occurring after the injury-causing event isn’t necessarily less important than before-and-during conduct. That’s probably something that cuts both ways, but in this case helps Miller.

Finally, given the result, the court didn’t have to discuss the underlying question, which was whether counsel performed deficiently in not discussing a lesser offense option with Miller. The dissent, however, deems the evidence sufficient and proceeds to discuss the subsidiary issue at length, ¶¶81-95, concluding that submission of a lesser is a matter of trial tactics delegated to counsel rather than a personal decision residing with the defendant.

State v. Elliot B. Russ, Sr., 2009 WI App 68
For Russ: Barry S. Buckspan

Issue/Holding: No expectation of privacy protected papers left in courthouse hallway and subsequently seized and photocopied by court personnel:

¶12   Although Russ’s main brief on this appeal asserts that, as testified-to by Carlson, the affidavits were in a folder when Carlson saw them, the circuit court found that when Commissioner Sweet first saw them they “were spread out on a public bench” … . The circuit court thus concluded that the commissioner did not invade Russ’s privacy when he took the documents. We agree. See Katz v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”); see also State v. Barrett, 401 N.W.2d 184, 189–190 (Iowa 1987) (no reasonable expectation of privacy in personal journals inadvertently left in restaurant); State v. Flynn, 360 N.W.2d 762, 765, 766 (Iowa 1985) (“the place where seized property is located may be so exposed as to negate any reasonable expectation of privacy”) (no reasonable expectation of privacy in paper sacks containing financial records and cassette tapes left under a tarpaulin on a golf course “accessible to all of the private members and others given permission to enter”). There was thus no illegal search when the commissioner picked up and looked at the affidavits.

¶13   There was also no illegal seizure when the commissioner photocopied the affidavits. “A ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). Here, as we have seen, the commissioner was lawfully entitled to look at the affidavits, which, as the circuit court found, were “in plain view” and “[t]heir potential incriminating character was immediately apparent.” See Katz, 389 U.S. at 351; Cardwell v. Lewis, 417 U.S. 583, 591–592, 594 (1974) (Fourth Amendment not violated by “the taking of paint scrapings from the exterior of the vehicle left in the public parking lot.”); United States v. Mancari, 463 F.3d 590, 596 (7th Cir. 2006) (photographing items in plain view does not violate the Fourth Amendment). Russ’s Fourth Amendment rights were not violated. Accordingly, the circuit court properly denied Russ’s motion to suppress.

Not hard to read between the lines: Russ, a process server, had ruffled feathers, ¶7, with court staff only too glad to hunt and peck through his paperwork. If there’s a moral, it might be that you don’t want to leave forged documents lying around people who bear you ill-will.

State v. Janet A. Conner, 2009 WI APP 143, PFR filed 9/28/09
For Conner: J. Steven House

Issue/Holding:

¶11      Wisconsin Stat. § 940.32 creates three distinct classifications of stalking offenses. See State v. Warbelton, 2009 WI 6, ¶24, 315 Wis. 2d 253, 759 N.W.2d 557. Subsections (2) and (2e) each set forth separate requirements for Class I felony stalking. Relevant to this appeal is sub. (2), which provides that to be guilty of stalking, a defendant must have “engage[d] in a course of conduct directed at a specific person” and that the actor “knows or should know that at least one of the acts that constitute the course of conduct will cause the specific person to suffer serious emotional distress.” “Course of conduct” is defined as “a series of 2 or more acts carried out over time, however short or long, that show a continuity of purpose.” Section 940.32(1)(a). Subsection (2m) enumerates five factors which elevate a stalking offense under sub. (2) to a Class H felony. Subsection (3) enumerates three factors which elevate a stalking offense under sub. (2) to a Class F felony. ^[7]