State v. Damone J. Block, 222 Wis. 2d 586, 587 N.W.2d 914 (Ct. App. 1998)
For Block: James M. Weber
Block’s next claim is that there was insufficient evidence to prove all of the elements of assault by a prisoner. Those elements are: (1) the defendant was a prisoner at the time of the offense, (2) the victim was an employee of the institution, (3) the defendant placed the victim in apprehension of an immediate battery likely to cause death or great bodily harm, (4) the defendant intended to place the victim in apprehension of an immediate battery likely to cause death or great bodily harm, and (5) the defendant knew that the victim was an employee of the institution. See Wis J I-Criminal 1778. Block claims that because his attack was a surprise, the victim could not have been in apprehension of it. In response to the State’s argument that the apprehension began after the first but before the subsequent blows, Block contends that “[a]pprehension … is fear of what is about to occur, not what is occurring.” He also claims that intent to place the victim in apprehension was not proven, as his attack was meant to be a surprise….
… Based on the testimony, the jury could have concluded that after that first blow she was in apprehension of an immediate battery-the subsequent blows-and that Block, through all of his actions up to and including the attack, intended to place her in such apprehension. There was enough evidence presented for the jury to reach such a conclusion.