On Point

State v. Eileen M. Entringer, 2001 WI App 157
For Entringer: William E. Schmaal, SPD, Madison Appellate

Issue: Whether, for purposes of the forgery statute, a person can falsely make a postal order by writing in the name of someone else as the payer.

Holding: Because forgery applies only to falsehoods that materially affect the document’s legal efficacy; and because “the money order was as good as cash,” listing another name as payer “had nothing to do with the genuineness of the execution of the money order” and “does not constitute ‘falsely making’ the money order.” ¶17. The evidence therefore didn’t support bindover, even if the defendant had an illegitimate purpose (concealing her true identity) in transacting the money order:

¶26. Wisconsin Stat. § 943.38 requires that false making relate to the genuineness of execution, not to the genuineness of content. Here, Entringer’s use of her mother’s name on a postal money order did not affect the money order’s execution. Entringer’s actions may have been a false representation within the contents of the money order, but that does not affect the genuineness of the money order itself. Consequently, the circuit court correctly dismissed the uttering a forged writing charge.

State v. Czarnecki, 2001 WI App 155, 237 Wis. 2d 794, 615 N.W.2d 672 distinguished (endorsement of check with assumed name supports forgery, because endorsement is part of executing check; money order, by contrast was executed when purchased), see ¶19.

State v. Jason J. Trawitzki, 2001 WI 77, 244 Wis. 2d 523, 628 N.W.2d 801, affirming State v. Trawitzki, 2000 WI App 205, 238 Wis. 2d 795, 618 N.W.2d 884
For Trawitzki: Donald T. Lang, SPD, Madison Appellate

Issue: Whether multiple charges of theft of firearms taken at the same time, and multiple charges of concealing those firearms, violated double jeopardy.

Holding: Multiplicity is a two-part test: determine whether the offenses are identical in both law and fact; if not, whether the legislature intended multiple prosecutions. ¶21. The specific identity of each firearm stolen (and, as well, concealed) is distinct and must be proven separately from any other stolen (or concealed) firearm; therefore theft of (or concealing stolen) firearms taken at the same time aren’t identical in fact, and may be proven separately.

¶28  We apply the first part of the multiplicity test and conclude that the firearm theft charges and the concealing stolen firearms charges against Trawitzki are not identical in law and in fact.  As both parties concede, the charges are identical in law because they arise under the same criminal statute, Wis. Stat. § 943.20(1)(a).  However, the charges against Trawitzki are not identical in fact.  The test for whether charges are not identical in fact is whether “the facts are either separated in time or of a significantly different nature.”  Anderson, 219 Wis. 2d at 749.  To be of a significantly different nature, each charged offense must require proof of an additional fact that the other charges do not.  Id. at 750.  In this case, each theft charge and each concealment charge against Trawitzki does require proof of an additional fact that the other charges do not, namely, the identity of the individual firearm.  Because each charge alleges that Trawitzki either took or concealed a specific firearm, the State must prove the identity of the specific firearm.  For example, the first firearm theft charge alleges that Trawitzki took and carried away a Smith & Wesson model 28 N-frame 6″ revolver with satin stainless steel finish and black rubber grips.  The State must prove, therefore, that Trawitzki did exactly what is alleged.  The second firearm theft charge alleges that Trawitzki took and carried away a Star PD 45 semi-auto 4″ blue/alloy frame pistol.  Consequently, the State must prove that.

The second part of the multiplicity test employs a four-factor presumption of legislative intent to support separate charging. That presumption isn’t overcome in this context. ¶29.

State v. Kelsey C.R., 2001 WI 54
For Kelsey C. R.: Susan Alesia, SPD, Madison Appellate

Issue: Whether, if a seizure did occur when the police told a potentially vulnerable juvenile girl in a high crime area to “stay put,” it was justified under the community caretaker doctrine.

Holding: (Lead, three-vote opinion:) Given the “strong public interest in locating runaway children and juveniles,” along with the perception that “(a) juvenile [such as Kelsey], alone in a dangerous neighborhood, is vulnerable to kidnappers, sexual predators, and other criminals,” the minimal police intrusion in this case was a justifiable community caretaker function. ¶¶34-37.

Because the lead opinion has only three votes, and because its conclusion on this point does not seem pertinent to the conclusions embodied by the remaining four justices, this is not necessarily a binding, precedential holding.

State v. Shane M. Ferguson, 2001 WI App 102
For Ferguson: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue: Whether the warrantless, forced police entry of a locked closet was justified under the community caretaker doctrine.

Holding:

¶12 After applying the Anderson test, we are satisfied that the police actions here qualified as ‘community caretaker.’ A search, to qualify as a community caretaker exception, requires an examination of three factors: ‘We conclude that when a community caretaker function is asserted … the trial court must determine: (1) that a seizure within the meaning of the fourth amendment has occurred; (2) if so, whether the police conduct was bona fide community caretaker activity; and (3) if so, whether the public need and interest outweigh the intrusion upon the privacy of the individual.’ “Anderson, 142 Wis. 2d at 169, 417 N.W.2d at 414. ‘As to the last factor-weighing the public need and interest against the intrusion-relevant considerations include: (1) the degree of the public interest and the exigency of the situation; (2) the attendant circumstances surrounding the seizure, including time, location, the degree of overt authority and force displayed; (3) whether an automobile is involved; and (4) the availability, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished.’ “Id. at 169-70.

¶13 It is conceded that a seizure occurred within the meaning of the Fourth Amendment. Therefore, we address the last two Anderson factors. First, we conclude that the police were engaged in a ‘bona fide community caretaker activity’ when they found the marijuana. The police were called to a fight when they went to Apartment 3. Someone in Apartment 3 made the complaint about the alleged fight in Apartment 2. Thus, the police were unaware of any wrongdoing in Apartment 3 when they arrived. Further, the police were not investigating a crime after encountering several underage drinkers in the apartment.

¶14 … Further, it was established that the only purpose in opening the closet door was to confirm that no highly intoxicated person was hiding there.

…

¶16 Finally, in examining the last factor in the Anderson test, the public need versus Ferguson’s interest against the intrusion, again we are satisfied that the search undertaken by the police was appropriate and outweighed any intrusion into Ferguson’s privacy. The police, sent to investigate a complaint of a fight, were suddenly confronted with four intoxicated teenagers, two of whom were highly intoxicated. Contrary to Ferguson’s contention that the police rendered no aid, the record reveals that the police quieted down Foster and assisted the other teenager in walking to the bathroom on several occasions. Thus, in applying the balancing test, we determine, under the exigent circumstances presented here, that the officers’ reasons for entry outweighed Ferguson’s privacy rights. Thus, under the Anderson test, we are satisfied that the officers were engaged in a community caretaker function when the search was conducted.

Similar result, somewhat different rationale, see Radloff v. City of Oelwein, 8th Cir. No. 03-3493, 8/17/04 (warrant exception where probable cause and exigent circumstances, which may exist “when there is a compelling need for official action and there is no time to secure a warrant”):

…Exigent circumstances existed both because of the loud noise created by the party and because of the threat to public safety if the juveniles left the house in cars while under the influence of alcohol. Michigan, 436 U.S. at 509. It would have been unreasonable to subject the neighbors to the loud noise or to require the officers to quarantine the juveniles’ cars during the period of time it would have taken to obtain a warrant….

Similar result: Commonwealth v. Robinson, on rehearing en banc, VA App No. 2474-03-2, 1/31/06 (reasonable belief “that multiple  underage individuals had gathered at a party in the country and consumed significant quantities of alcohol” constituted exigency).

But, for authority to effect that underage drinking on private premises, coupled with sounds of individual vomiting in bathroom, did not give police sufficient basis under community caretaker doctrine to enter bathroom on belief that person vomiting was in need of immediate assistance, see State v. Smith, 2004 MT 234, 8/31/04. And: State v. Ealum, 2007 Ga. App. LEXIS 190 (no entry-justifying exigency where officers merely observed underage drinking but not involving anyone apparently under 18, court suggesting that safety of child would present different question; similar results from number of courts string-cited, fn. 5).

State v. Alfredo Ramirez, 2001 WI App 158, PFR filed 7/11/01
For Ramirez: Elizabeth A. Cavendish-Sosinski

Issue: Whether § 943.201(2) creates a continuing offense such that, as applied to Ramirez, it did not violate the ex post facto clause even though the statute was promulgated after he commenced the activity that formed the basis for the charge.

Holding:

¶18. We hold that Ramirez obtained money in the form of wages, not merely the opportunity for employment, as the result of his unauthorized use of Wulfenstein’s personal identifying information. We also hold that Wis. Stat. § 943.201(2) creates a continuing offense. Since Ramirez’s identity theft allowed him to obtain wages after the effective date of the statute, we hold that the application of the statute did not violate the ex post facto provisions of the Wisconsin Constitution.

State v. Deborah J. Zimmerman, 2001 WI App 238
For Zimmerman: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether someone in the custody of a probation or parole agent “is in actual custody” for purposes of the escape statute, § 946.42.

Holding:

¶5. To be guilty of escape, Zimmerman must be found to be in custody. Wis JI-Criminal 1773. The relevant language of the escape statute defines custody to include “without limitation actual custody of an institution … or of a peace officer or institution guard and constructive custody of prisoners … temporarily outside the institution ….” Wis. Stat. § 946.42(1)(a). The statute also contains an exception: “It does not include the custody of a probationer [or] parolee … unless the person is in actual custody or is subject to a confinement order under s. 973.09(4).” Sec. 946.42(1)(a)….¶14. We conclude that the escape statute unambiguously excludes from the definition of “actual custody” the physical custody of probation and parole officers. Therefore, because Zimmerman was in the hands of probation or parole agents at the time she fled, she is not chargeable with felony escape.

State v. Debra Noble, 2001 WI App 145, reversed, other grounds, State v. Debra Noble, 2002 WI 64
For Noble: Jeff P. Brinckman

Issue: Whether the evidence was sufficient to sustain a perjury conviction.

Holding: Proof of the elements of perjury — “(1) An oral statement while under oath; (2) The statement was false when made; (3) The defendant did not believe that the statement was true when he or she made it; (4) The statement was made in a proceeding before a judge; (5) The statement was material to the proceeding, ¶8” — is sustained, for highly fact-specific reasons (most of the appellate challenges are held waived).