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Unlawful Use of Phone – Sufficiency of Evidence; Best Evidence Rule; Citation of Unpublished Caselaw

State v. Kurt Daniel Schmidt, 2010AP1104-CR, District 3, 11/16/10

court of appeals decision (1-judge, not for publication); for Schmidt: Andrew John Laufers; Schmidt BiC; State Resp.; Reply

Unlawful Use of Phone – Sufficiency of Evidence

Evidence held sufficient to sustain conviction for violating § 947.012(1)(c). The second of two calls anonymously made by Schmidt in a matter of minutes to his wife during a pending divorce with custody in dispute, he issue is whether it was made “with intent to abuse.” (The court declines to discuss the elemental alternative of intent to “threaten.”) The court defines the element as relating to intent to cause “emotional harm,” qualified in that it “must be more significant than” intent merely to harass. ¶¶8-13.

Evidence –  Best Evidence Rule

The best evidence rule, § 910.03, allows use of a duplicate unless genuine question is raised as to authenticity of the original. Because Schmidt failed to raise a genuine question of authenticity at trial, the best evidence rule wasn’t violated by use of a police recording rather than the original answering ¶14.

Appellate Procedure – Citation of Unpublished Caselaw

Schmidt’s appellate counsel improperly cites an unpublished pre-July 2009 court of appeals decision, in violation of WIS. STAT. RULE 809.23(3)(a) (Sup. Ct. Order No. 08-02, 2009 Wis. 2d, 311 Wis. 2d xxv).  Counsel is warned that future rules violations will likely result in sanctions.  See WIS. STAT. RULE 809.83(2)

¶10 n. 4.

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