On Point

State v. Calvin R. Kolk, 2006 WI App 261
For Kolk: Michael Zell

Issue/Holding: The (lawful) traffic stop’s purpose concluded when the officer returned Kolk’s license and registration and issued his warning; however, the officer had not released Kolk from the temporary detention caused by the traffic stop when he next asked for consent to search the car and as a result Kolk’s ensuing consent was tainted, ¶¶20-24.

State v. Daniel L. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996) and State v. Lawrence A. Williams, 2002 WI 94, distinguished; State v. Reginald Jones, 2005 WI App 26, followed.

State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate

Issue/Holding:

¶19      Wisconsin Stat. § 940.10(1) provides that a person who “causes the death of another human being by the negligent operation or handling of a vehicle is guilty of a Class G felony.” The term “negligent” as used in § 940.10 requires proof of “criminal negligence.” See Wis. Stat. § 939.25(2). In order to prove a violation of § 940.10, the State must establish beyond a reasonable doubt that (1) the defendant operated a vehicle; (2) the defendant operated the vehicle in a criminally negligent manner; and (3) the defendant’s criminal negligence caused a person’s death. See Johannes, 229 Wis. 2d at 221 n.2; Wis JI—Criminal 1170. The meaning of the term “criminal negligence” is thus central to our disposition of Schutte’s claim that the State produced insufficient evidence to sustain her conviction under § 940.10. The legislature defines “criminal negligence” as “ordinary negligence to a high degree, consisting of conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another.” Section 939.25(1).

Judicial interpretations of “high degree of negligence” under former § 940.08 remain relevant to “criminal negligence” under current statutes, ¶20. Culpability does not require a state of mind different from that required for ordinary negligence but, rather, existence of high probability of death or great bodily harm as discerned by reasonable person, ¶21.

State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate

Issue/Holding:

¶34      In sum, we conclude that the State presented sufficient evidence for jurors to reasonably conclude, beyond a reasonable doubt, that Schutte’s conduct prior to the collision was criminally negligent within the meaning of Wis. Stat. §§ 939.25 and 940.10. The State’s evidence established not only that Schutte’s car crossed the highway centerline, but from the evidence the State presented, jurors could also reasonably conclude that Schutte was driving too fast for prevailing weather and road conditions, and, while on a curve in the highway, she attempted to engage in other tasks and took her eyes off the road and one hand off the steering wheel. We conclude the evidence at trial, viewed most favorably to the conviction, was such that jurors, acting reasonably, could have determined, beyond a reasonable doubt, that Schutte engaged in conduct that she should have realized “create[d] a substantial and unreasonable risk of death or great bodily harm to another.”See § 939.25(1).

The court suggests that if “the State’s only evidence of Schutte’s pre-collision conduct been that, on a snowy evening with icy road conditions, her vehicle crossed the highway centerline and collided with an oncoming vehicle, we might agree that Schutte’s convictions under Wis. Stat. § 940.10 could not be sustained,” ¶24. State v. Johannes, 229 Wis. 2d 215, 598 N.W.2d 299 (Ct. App. 1999) explained: all the circumstances under which the defendant was driving must be taken into account, and the defendant’s explanation may mitigate the degree of negligence, ¶¶27-28. “A defendant may avoid criminal liability if jurors determine that the State failed to establish beyond a reasonable doubt that the defendant’s conduct while operating a vehicle rose to that level of culpability because, under the circumstances under which the defendant was driving, either the risk of life-threatening consequences was not a substantial one, or if it was, the circumstances, such as the presence of an emergency, rendered the risk not unreasonable,” ¶29.

State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate

Issue: Whether the trial court invaded the jury’s province when it instructed that the court of appeals had held in State v. Johannes, 229 Wis. 2d 215, 598 N.W.2d 299 (Ct. App. 1999) that a criminally negligent act had occurred when a car drove across the centerline and that unanimous agreement was unnecessary as to why that act occurred.

Holding:

¶38      We first note that the Johannes excerpt the trial court read to jurors was not from the portion of our opinion where we discussed the sufficiency of the evidence, but from our discussion of whether jurors need to be unanimous regarding the specific act or acts of the defendant that constituted criminal negligence. See Johannes, 229 Wis. 2d at 227-29. As the excerpt read to jurors in this case notes, we concluded jurors need not be unanimous regarding why a defendant committed a criminally negligent act, only that he or she did so. See id. at 229. Schutte does not argue that Johannes is wrong on this point or that it was inappropriate for the trial court in this case to correct any misimpression regarding the State’s burden of proof jurors might have gained from defense counsel’s argument. We conclude the court did not misstate the law regarding the State’s burden of proof or the proper application of the unanimity requirement to the evidence adduced at trial.¶39      As for Schutte’s claim that the particular passage from Johannes that the trial court read to jurors was tantamount to a judicial endorsement of a guilty verdict, we would find greater merit in the claim had the trial court not concluded its curative instruction with the paragraph that it did. The final paragraph of the instruction emphasized to jurors that Schutte’s operation of her vehicle on the left half of the roadway did not necessarily constitute criminal negligence, and it informed jurors for a second time that they should consider the traffic violation, if they found one, “along with all the other evidence, in determining whether the defendant’s conduct constituted criminal negligence.” The court had also so instructed jurors as a part of its instructions on the elements of homicide by negligent operation of a vehicle, which the court read to jurors prior to the closing arguments of counsel.

State v. Reinier A. Ravesteijn, 2006 WI App 250
For Ravesteijn: Rudolph L. Oldeschulte

Issue/Holding: Kidnapping is mitigated from a Class B to Class C felony if the victim is released without permanent physical injury prior to the first witness’s testimony, ¶17. When accepting a guilty plea to Class B kidnapping the court must ascertain a factual basis for excluding the Class C offense, at least where there is some evidence in the record to support it, ¶18. However, the error in such an omission goes to the sentence rather than the plea, ¶¶19-20.

State v. Delano L. Terrell, 2006 WI App 166
For Terrell: Martin E. Kohler, Brian Kinstler, Christopher M. Eippert

Issue: Whether a sheriff’s deputy assigned to work as a court bailiff is a “correctional staff member” so as to come within § 940.225(2)(h).

Holding: A “correctional staff member” is defined as an individual who works at a correctional institution, § 940.225(5)(ad). Terrell was a deputy assigned to work as a courthouse bailiff—a courthouse isn’t a correctional institution, and therefore he doesn’t come within the plain language of the definition. The fact that he processes inmates transported from a correctional institution doesn’t mean that he works at one. “Rather, the plain meaning of the statutory language applies to all those whose ‘work’ is central to the function of a correctional institution, and which takes place within the walls of the correctional institution.”

State v. Eric Benjamin Gardner, 2006 WI App 92
For Gardner: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding¹: The elements of § 940.25(1)(am) – the defendant operated a vehicle with “a detectable amount of a restricted controlled substance in his or her blood, and the operation of the vehicle caused great bodily harm to the victim – do not create any presumption so as to relieve the State of its burden of proof, ¶¶11-12:

Rather, the statute simply defines the elements of the offense. See State v. Ulrich, 478 N.E.2d 812, 820 (Ohio Ct. App. 1984) (“The present statute does not presume; rather, it defines what specific conduct is prohibited.”). Thus, if the State proves both elements beyond a reasonable doubt, a defendant is not presumed guilty—he or she is guilty of those elements.

Issue/Holding²: § 940.25(1)(am) does not violate the 8^th amendment:

¶13      Gardner also contends that the statutes here create an impermissible “status offense.” See Robinson v. California, 370 U.S. 660, 682 (1962); State v. Bruesewitz, 57 Wis. 2d 475, 479-80, 204 N.W.2d 514 (1973) (Eighth Amendment prohibits “making it a crime to be ‘addicted’ to narcotics …. Criminal liability [cannot] be based on the mere status of addiction.”). We reject Gardner ’s contention.¶14      The statutes involved here penalize conduct, not status. The statutes prohibit operation of a vehicle with a detectable amount of a restricted controlled substance in one’s blood and the causing of great bodily harm as a result of that operation of a vehicle. Thus, a defendant is not being penalized simply for being a drug addict. A defendant cannot be prosecuted under Wis. Stat. § 940.25(1)(am) unless he or she actually engages in conduct—operation of a vehicle such that great bodily harm is caused to another human being. The United States Supreme Court made it clear that Robinson does not apply in the context presented in the instant case. See Powell v. Texas, 392 U.S. 514, 532-36 (1968) ( Robinson does not prevent states from punishing defendants who engage in behavior which the state has an interest in preventing; it does not prohibit penalizing conduct).

Issue/Holding³: Absence of causation from required proof doesn’t invalidate § 940.25(1)(am):

¶16      Gardner is correct that the legislature did not include, within the commission of this crime, the requirement that the State prove that the defendant’s ingestion of a controlled substance caused the injury. Rather, the legislature criminalized a specific act—driving with any amount of a restricted controlled substance in one’s blood, where the driving causes great bodily injury to another human being. Thus, the only causal connection required is that the operation of the vehicle caused the injury. …¶17      Thus, that leaves us with the question of whether the legislature’s enactment, without requiring a causal link between drug use and the injury as an element of the crime, in some way violates its authority. We cannot reach such a conclusion. First, Gardner fails to provide any authority to suggest that the legislature violated its authority in writing Wis. Stat. § 940.25(1)(am) & (2)(a). Second, this court recently held constitutional Wis. Stat. § 346.63(1)(am) (“No person may drive or operate a motor vehicle while: … The person has a detectable amount of a restricted controlled substance in his or her blood.”). See State v. Smet, 2005 WI App 263, ¶1, ___ Wis. 2d. ___, 709 N.W.2d 474. …

¶18      Third, our supreme court addressed a similar issue in State v. Caibaiosai, 122 Wis. 2d 587, 594, 363 N.W.2d 574 (1985). In that case, the court discussed the causation element of the offense proscribed in Wis. Stat. § 940.09(1)(a), homicide by intoxicated use of a vehicle, which requires only a causal connection between the operation of a vehicle and the resulting injury. The homicide statute does not “include as an element of the crime a direct causal connection between the fact of defendant’s intoxication … and the victim’s death….  [P]roof of [the offense] need not require causal connection between the defendant’s intoxication and the death.” Caibaiosai, 122 Wis. 2d at 594.

Issue/Holding⁴:

¶22      Finally, we address Gardner ’s contention that Wis. Stat. § 940.25(2)(a), creating a defense to the crime, improperly transfers the burden of proof from the State to the defendant. We reject his contention.¶23      The legislature, in enacting this statute, provided a defendant with a true affirmative defense in Wis. Stat. § 940.25(2)(a), which permits a defendant to show that the presence of the illegal drug was not the cause of the accident—that the injury would have occurred even if he or she had not used illegal drugs and driven. The affirmative defense provided for in the statute constitutes an absolute defense to the criminal act. “Due process does not prohibit the state from placing the burden of proving an affirmative defense on the defendant.” State v. McGee, 2005 WI App 97, ¶16, 281 Wis. 2d 756, 698 N.W.2d 850.