On Point

State v. Mark T. Jahnke, 2009 WI App 4
For Jahnke: Harold L. Harlowe; Michael J. Herbert

Issue/Holding: Secretly videotaping another without consent, though that person knowingly exposes herself nude to the video taper, supports criminal liability:

¶6        Jahnke contends that the facts do not support the third element, the expectation of privacy element. He reasons that his girlfriend had no reasonable expectation of privacy because she knowingly and consensually exposed her nude body to him while he was secretly videotaping her. In Jahnke’s view, the only pertinent question for purposes of the privacy element is whether his girlfriend had a reasonable expectation that Jahnke would view her nude at the time of the recording.

¶7        The State argues that there is a more precise question for purposes of the privacy element that is geared to the specific privacy interest the statute is designed to protect. According to the State, the question is whether the nude person had a reasonable expectation, under the circumstances, that he or she would not be recorded in the nude. We agree with the State.

The court previously, in State v. Nelson, 2006 WI App 124, ¶21, said that this element “requires that the person who is depicted nude is in a circumstance in which he or she has an assumption that he or she is secluded from the presence or view of others[.]” The dissent says (¶28), more than a little plausibly, that this holding wasn’t a “narrow” one but, rather, the product of “numerous pages of inquiry and analysis” aimed at providing a definition meaningful to “future readers of the statute.” The majority disagrees, leading the dissent to all but accuse it of a result-oriented conclusion:

¶24      I do not join in the majority’s opinion because it is an attempt to avoid the requirement of Cook v. Cook, 208 Wis.  2d 166, 190, 560 N.W.2d 246 (1997), that “the court of appeals may not overrule, modify or withdraw language from a previously published decision of the court of appeals.” ^[6]The majority acknowledges that it may not hold that the meaning we gave to “reasonable expectation of privacy” in the predecessor to Wis. Stat. § 942.09(2)(am)1. (2007-08) ^[7] in State v. Nelson, 2006 WI App 124, ¶¶19-21, 294 Wis.  2d 578, 718 N.W.2d 168, is incorrect, and therefore it cannot use the words “overrule, modify or withdraw.” Majority, ¶20. Instead, the majority uses the word “incomplete” to avoid the meaning we previously gave to the statute. Majority, ¶20.¶25      Thus, if the court of appeals uses the word “incomplete” to differentiate one of our published opinions, we can avoid Cook in most circumstances. While this is ingenious wordsmithing, it is not the way a hierarchical legal system should operate. Though we are not saying “that was then and this is now,” the result is the same.

By the way, ¶24 n. 6 is a gem, dryly remarking that the court of appeals has devised transparent ways to avoid the stricture of Cook, and adducing by way of example an instance of “distinguishing prior published opinion though [the] facts are identical.” Hard to disagree with the dissent, but it does make one wonder why there was no argument that the statute, as precedentially construed by Nelson, failed to provide sufficient notice to Jahnke that his conduct came within it. Too late now—and too late, certainly, for anyone else now that the court has broadly construed the element.

State v. Mark T. Jahnke, 2009 WI App 4
For Jahnke: Harold L. Harlowe; Michael J. Herbert

Issue/Holding:

¶5        Jahnke entered a plea to the recording crime defined in Wis. Stat. § 942.09(2)(am)1. That crime has four elements:

(1)        the defendant recorded a person in the nude;(2)        the recording is without the nude person’s knowledge and consent;

(3)        the depicted person was nude in a circumstance in which he or she had a “reasonable expectation of privacy”; and

(4)        the defendant knew or had reason to know that the nude person did not know of and did not consent to the recording.

State v. Nelson, 2006 WI App 124, ¶14, 294 Wis. 2d 578, 718 N.W.2d 168;see also Wis JI—Criminal 1396. ^[4]

State v. James D. Lammers, 2009 WI App 136, PFR filed 9/16/09
For Lammers: Amelia L. Bizzaro

Issue/Holding:

¶12      “Plain error” means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App. 2001). Wisconsin Stat. § 901.03(4) recognizes the plain error doctrine, which allows appellate courts to review errors that were otherwise waived by a party’s failure to object. State v. Mayo, 2007 WI 78, ¶¶28-29, 301 Wis. 2d 642, 734 N.W.2d 115. Plain error is “error so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time.” State v. Sonnenberg, 117 Wis. 2d 159, 177, 344 N.W.2d 95 (1984) (citation omitted). The error, however, must be “obvious and substantial,” and courts should use the plain error doctrine sparingly. Id.¶13      There is no bright-line rule for what constitutes plain error. … “[W]here a basic constitutional right has not been extended to the accused,” the plain error doctrine should be invoked. Id. at 195. Our courts have consistently used this constitutional error standard in determining whether to apply the plain error rule. State v. King, 205 Wis. 2d 81, 91, 555 N.W.2d 189 (Ct. App.1996).

¶14      If plain error occurred, the burden is on the State to prove that it was harmless beyond a reasonable doubt. …

State v. Anthony L. Prineas, 2009 WI App 28, PFR filed 3/6/09
For Prineas: Raymond M. Dall’osto, Kathryn A. Keppel

Issue/Holding: Unpreserved challenge to sexual assault nurse examiner’s testimony (that abrasions were consistent with forcible intercourse and that no complainant had ever provided her with an inaccurate history) didn’t rise to plain error:

¶12      As the circuit court noted, Stephan did not offer an opinion about the cause of Keri’s abrasion, she stated that the abrasion was “consistent” with an injury that resulted from “penetration.”  In fact, Stephan acknowledged that she did not know what caused the abrasion.  We have allowed such testimony in the past.  See, e.g., State v. Ross, 203 Wis. 2d 66, 79-81, 552 N.W.2d 428 (Ct. App. 1996) (allowing testimony because the nurse did not testify that the victim’s physical condition was the result of sexual assault).  Furthermore, we observe that Stephan’s objectionable statement regarding patient histories was elicited by defense counsel during cross-examination.  Counsel likely expected Stephan to testify that some complainants are not forthcoming but, surprisingly, she did not.  Our review of the record, particularly the whole of Stephan’s testimony, convinces us that the exercise of our discretionary reversal power is not required here.

She’d never been given “an inaccurate history during an exam” (¶5)? Sounds like powerfully damaging testimony where the case hinges on credibility, but at least the court distinctly labels it “objectionable,” and the fact that it came out on cross might blunt the impact by making the result fact-specific.

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: Foundational requirement of probative value applies to computer-generated animation used as demonstrative exhibit to recreate crime scene:

¶17      Turning to probative value, we examine the State’s failure to lay a foundation for the admission of the animation. See, e.g.,Gribble, 248 Wis. 2d 409, ¶57 (in determining probative value, the court considered the foundation laid and the credentials of the testifying witness). Again, the State relies on Roy in support of its contention that computer-generated animation may be admitted without witness testimony that the animation fairly and accurately depicts what it purports to depict. The State contends, based on Roy, that it is not required to lay a foundation for a computer-generated animation in the same way that one is laid for a photograph or video. … However, the Roy court’s determination was not based on the fact that the evidence sought to be admitted was an animation, as opposed to photograph or video. Rather, the Roy court was addressing an expert’s ability to use an animation to illustrate his or her opinion. Here, Ambach was not illustrating an expert opinion on possible scenarios, his animation showed distances, where the defendants, the victim and witnesses were, and “what people did.” We reject the State’s argument that computer-generated animation used as a demonstrative exhibit to show the scene and events of the alleged crime is exempt from longstanding foundation requirements. ^[8]

Issue/Holding: Foundational requirement of authentication value applies to computer-generated animation used as demonstrative exhibit to recreate crime scene:

¶18      A determination of relevance demands that evidence offered at trial be connected to the subject matter at issue. Authentication is a special aspect of relevancy and is preliminary and precedent to a question of admissibility. See Judicial Council Committee Note, 1974, Wis. Stat. § 909.01 Here, there was no authentication by any of the witnesses that the animation fairly and accurately represented their testimony and no single witness had firsthand knowledge as to what was depicted in the animation. See Wis. Stat. §§ 909.01 and 909.015^[9]; see also 2 Kenneth S. Broun, McCormick on Evidence § 214 (6th ed. 2006) (“The authenticating testimony from a witness would establish that the animated CGE is a fair and accurate representation of what the witness is trying to describe, and admission of the animation would be within the discretion of the trial judge.”). The computer-generated animation was introduced to clarify Giovannoni’s testimony; however, Giovannoni never testified that the animation fairly and accurately represented her recollection of the events.^[10] Although the animation was not expressly introduced to clarify Hohisel’s testimony, it incorporated aspects of his testimony and, like Giovannoni, Hohisel never testified to his belief that the animation captured his recollection of events. Neither did Biever. The confusion resulting from this compilation of testimony is evidenced in the trial court’s observation that the animation “illustrated” Giovannoni’s testimony when, in reality, it illustrated much more than that.

State v. Pablo G. Quiroz, 2009 WI App 120
For Quiroz: Glen B. Kulkoski

Issue/Holding:

¶18      Law and Discussion: It is well established that evidence of flight has probative value as to guilt. See State v. Knighten, 212 Wis. 2d 833, 838-39, 569 N.W.2d 770 (Ct. App. 1997). Analytically, flight is an admission by conduct. State v. Miller, 231 Wis. 2d 447, 460, 605 N.W.2d 567 (Ct. App. 1999). The fact of an accused’s flight is generally admissible against the accused as circumstantial evidence of consciousness of guilt and thus of guilt itself. Id. To be admissible, the defendant’s flight need not occur immediately following commission of the crime. See Gauthier v. State, 28 Wis. 2d 412, 419-20, 137 N.W.2d 101 (1965) (defendant escaped from custody while awaiting trial).

State v. Pablo G. Quiroz, 2009 WI App 120
For Quiroz: Glen B. Kulkoski

Issue/Holding:

¶21      Quiroz claims that under Miller, 231 Wis. 2d at 574, there is an automatic exception to the trial court’s discretionary ability to admit flight evidence whenever a defendant has an independent reason for flight that, if admitted, would unduly prejudice the defendant. Relying on his interpretation of Miller, Quiroz argues that the evidence of his flight was inadmissible because he proffered an independent reason for flight.

…

¶27      Our holding in Miller defeats rather than bolsters Quiroz’s argument. Flight evidence is not inadmissible anytime a defendant points to an unrelated crime in rebuttal. Rather, when a defendant points to an unrelated crime to explain flight, the trial court must, as it must with all evidence, determine whether to admit the flight evidence by weighing the risk of unfair prejudice with its probative value. Wis. Stat. § 904.03. As in Miller, the trial court performed the proper balancing test and determined that the independent reason for flight was not unduly prejudicial. It held hearings on the flight motions and the record reflects a rational process in its decision to admit the flight evidence and instruction. In determining that the State could introduce evidence of Quiroz’s flight, it made efforts to minimize the prejudicial effect by also ruling that the details of the other charges, proffered by Quiroz as his independent reason for flight, could “not be gone into.” Thus, during trial, the only references to the other charges were those made by Quiroz stating he fled because he was arrested for “more charges” after he posted bail for the sexual assault and exploitation charges. The record reflects the trial court’s careful rationale. The admission of the flight evidence and instruction was a well-considered and proper exercise of the trial court’s discretion.

The court doubts “whether Quiroz has really set forth an independent reason for fleeing,” ¶22, besides which the evidence of guilt was so “overwhelming” any error re: flight evidence would have been harmless, ¶28.