¶22. But even this does not get Barreau very far. Although a reasonable view of the evidence suggests that Barreau and Keeran believed Hansen was not yet dead when they fled the house, there is no evidence indicating that they believed Hansen would ultimately survive. Barreau seems to suggest that a defendant is entitled to a reckless homicide instruction any time he or she left the scene of the crime while the victim was still alive. Barreau points to no authority for such a proposition and we are unaware of any.
¶23. When someone beats another over the head at least ten times with a baseball bat and then stabs him in the neck with a knife, what could the expectation be, other than that the victim will die? If the assailant (either Barreau or Keeran or both) intended, as Barreau argues, to merely incapacitate Hansen without killing him, why strike him repeatedly on his skull? If only injury was intended, why stab the victim in the neck, even after he was clearly incapacitated? Barreau provides no explanation for these questions. Had Hansen been struck only once on his skull or repeatedly on a less vulnerable part of his body, we would agree that the assailant's conduct could be reasonably viewed as reckless. But this is not what happened.

¶20 Therefore, we are persuaded that the legislature believed it was addressing a stand-alone crime, not a penalty enhancer. To summarize, the legislature at one time designated felony murder as a Class B felony, thus eliminating the primary reason the State now contends felony murder is a penalty enhancer: its add-on penalty structure. Further, in fixing unrelated problems, the legislature considered retaining the designated felony approach by making felony murder a Class A felony. We think it apparent that if the legislature thought it was dealing with a penalty enhancer, some part of the debate would reflect the need to return to an add-on penalty structure so as to restore the statute to penalty-enhancer status. However, we find no indication that this was part of the debate. Rather, the legislature returned to the old penalty language for reasons unrelated to whether the statute was thought to be a penalty enhancer.

¶25. Krawczyk next argues that he was incorrectly charged as "a party to the crime" of felony murder and that this error also rendered his plea to that offense unknowing. We agree with Krawczyk that the State did not need to include the party-to-a-crime allegation in the felony murder charge. Because "[a] person convicted of a felony as a party to the crime becomes a principal to a murder occurring as a result of that felony," it is "redundant and unnecessary" to charge a defendant with felony murder as a party to the crime. Oimen, 184 Wis. 2d at 449. Krawczyk, however, does not explain how or why the inclusion of a "redundant" aspect in a charge deprives a defendant of information necessary to enter a knowing plea. We conclude, as did the supreme court in Oimen, that "no prejudice has been demonstrated" by reason of the party-to-a-crime allegation in the felony murder charge, and thus it does not justify a withdrawal of Krawczyk's plea. Id.

¶103. Based on the plain language of Wis. Stat. § 940.05(2), supported by the legislative history and articulated public policy behind the statute, we conclude that when imperfect self-defense is placed in issue by the trial evidence, the state has the burden to prove that the person had no actual belief that she was in imminent danger of death or great bodily harm, or no actual belief that the amount of force she used was necessary to prevent or terminate this interference. If the jury concludes that the person had an actual but unreasonable belief that she was in imminent danger of death or great bodily harm, the person is not guilty of first-degree intentional homicide but should be found guilty of second-degree intentional homicide.

¶104. In light of this analysis, we must modify Camacho [176 Wis. 2d 860, 869, 501 N.W.2d 380 (1993)] to the extent that it states that Wis. Stat. § 940.01(2)(b) contains an objective threshold element requiring a defendant to have a reasonable belief that she was preventing or terminating an unlawful interference with her person in order to raise the issue of unnecessary defensive force (imperfect self-defense).

State v. Anou Lo, 2003 WI 107, affirming unpublished opinion of court of appeals

For Lo: Robert R. Henak
Amicus Briefs: Joseph N. Ehmann, Wm. J. Tyroler, SPD; Meredith J. Ross, Walter J. Dickey, UW Law School

Issue/Holding: The holding of State v. Head, 2002 WI 99 [first-degree intentional homicide mitigated to 2^nd-degree if defendant had actual but unreasonable belief in necessity of deadly force] is a “new rule” not requiring retroactive application to collateral attacks. ¶¶61-84.

¶28     As the State pointed out in its brief, the one occasion on which Braun allegedly grabbed the wheel of his father's vehicle was dissimilar in several respects to the occasion in which Braun allegedly grabbed the wheel of Muckerheide's vehicle. There was no evidence that, on the prior occasion, Braun had been intoxicated or under the influence of drugs, but there was evidence that Braun had been drinking and doing cocaine prior to the accident in Muckerheide's vehicle. There is no dispute that an individual often acts differently when he/she is under the influence of drugs and alcohol. Additionally, Braun's father would have testified that Braun had gestured toward the steering wheel on several occasions, whereas Muckerheide never asserted that Braun had made gestures toward the steering wheel in Muckerheide's vehicle prior to the accident. Finally, there is no evidence that Braun had ever grabbed the steering wheel when riding with Muckerheide on occasions prior to the accident, as Braun had allegedly done when riding with his father.

¶29      Due to these dissimilarities, we conclude that Muckerheide's offered other acts evidence does not make a consequential fact more probable or less probable. Id. at 785-86. As this court stated in Whitty v. State, 34 Wis. 2d 278, 291-92, 149 N.W.2d 557 (1967), our seminal case regarding other acts evidence, it is universally established that evidence of other acts "is not admitted in evidence for the purpose of proving general character, criminal propensity or general disposition on the issue of guilt or innocence because such evidence, while having probative value, is not legally or logically relevant to the crime charged."

¶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).

¶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).

¶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.

¶48      Although the toxicology expert could not tie the level of THC detected in Schutte’s blood to a specific level of impairment, she noted at trial that “some driving skills … are affected” including judgment, reaction time and information processing. She also noted that THC “affects a person’s perception of time and space so that the ability to judge distances, speeds and relationship to other objects is also d[i]minished,” and, further, that coordination, balance and concentration are also affected. Finally, she explained that THC “does have a tendency for people to fixate their attention for a longer period of time on one type of task or another, whether it’s looking out the window to check a building or putting in a CD.” These effects all relate directly to a person’s ability to safely drive a motor vehicle. Despite the lack of testimony that Schutte experienced any of these effects prior to the collision, jurors, without speculating on Schutte’s precise level of impairment, if any, could reasonably conclude from the expert’s testimony that Schutte’s use of a substance capable of producing these effects, while (or immediately prior to) driving on a rural highway at night in adverse weather and road conditions, was a circumstance rendering it more probable that her conduct was criminally negligent.

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.

Battery to, and Intimidation of, a Witness § 940.201(2)(a) and (b) -- Elements

State v. Anthony M. Cotton, 2003 WI App 154

For Cotton: Timothy T. Kay

¶19. Following the preliminary hearing and bindover, the State filed an information containing new charges pertaining to Cotton's encounter with Paikowski-one count of battery or threat of battery to Paikowski and a further similar count regarding Paikowski's family pursuant to Wis. Stat. § 940.201(2)(a) and (b). These charges require the State to prove beyond a reasonable doubt that (1) the defendant caused or threatened to cause bodily harm to the victim or victim's family, (2) the victim was likely to testify as a witness (whether or not any proceedings had been commenced at the time of the alleged offense), (3) the defendant knew or had reason to know that the victim was a witness, (4) the defendant caused or threatened to cause bodily harm to the victim or victim's family because the person was likely to testify as a witness, (5) the defendant caused or threatened bodily harm without the consent of the victim, and (6) the defendant acted intentionally. Wis JI-Criminal 1239 & cmt. Cotton challenged the charges as not supported by evidence at the preliminary hearing.

(The decision goes on to hold that charges involving battery and threats to a witness can’t be supported absent proof that the defendant knew the alleged victim was likely to be a witness. ¶¶22-23.)

¶70      To constitute mayhem, the State must show that the defendant had (1) the specific intent to disable or disfigure; (2) by cutting or mutilating the tongue, eye, ear, nose, lip, limb, or other bodily member; and (3) the cutting or mutilating produced great bodily harm. Wis JI——Criminal 1246. ^[33]  

¶71      A specific intent to disable or disfigure is distinguishable from a general intent. A general intent to do the acts and the consciousness of the nature of the acts and possible results differs from the specific intent to do the intended harm, i.e., the specific intent to disable or disfigure. Kirby v. State, 86 Wis.  2d 292, 301, 272 N.W.2d 113 (Ct. App. 1978); State v. Weso, 60 Wis.  2d 404, 411-12, 210 N.W.2d 442 (1973).

¶72      Mayhem requires great bodily harm, although the Jury Instruction Committee has been skeptical of this assertion. …

¶13      Jury instructions that have the effect of relieving the State of its burden of proving beyond a reasonable doubt every element of the offense charged are unconstitutional under the Fifth and Sixth Amendments. State v. Harvey, 2002 WI 93, ¶23, 254 Wis. 2d 442, 647 N.W.2d 189. The Fifth Amendment’s due process guarantee protects “the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id., ¶19 (citations omitted). The Sixth Amendment right of trial by jury in criminal cases includes the right to have the jury, rather than the judge, reach the requisite finding of guilt or innocence. See State v. Peete, 185  Wis.  2d 4, 19, 517 N.W.2d 149 (1994) (“Where the finder of fact is a jury, proof of all essential elements must be tendered to the jury.”).

¶14      … Here, the instruction given never directed the jury to make an independent, beyond-a-reasonable-doubt decision as to whether Draughon performed or purported to perform psychotherapy.  Because this finding was a required element of the charge, its omission is constitutional error. See Harvey, 254 Wis. 2d 442, ¶33.

¶9        To obtain a conviction for a violation of Wis. Stat. § 940.22(2), the State must prove three elements beyond a reasonable doubt:  (1) that the defendant was or held himself or herself out to be a therapist; (2) that the defendant had intentional sexual contact with a patient or client; and (3) that the sexual contact occurred during an ongoing therapist-patient or therapist-client relationship. ^[2] State v. Miller, 2002 WI App 197, ¶17 n.5, 257 Wis. 2d 124, 650 N.W.2d 850; see also State v. Ambrose, 196 Wis. 2d 768, 777, 540 N.W.2d 208 (Ct. App. 1995) (holding that the actor and the complainant "must be engaged in a professional therapist-patient/client relationship").

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^[2] We note that the pattern jury instructions open by stating, "Sexual exploitation by a therapist, as defined in § 940.22 . . . is committed by one who is or holds himself out to be a therapist and who intentionally has sexual contact with a patient or client during any ongoing therapist-patient or therapist-client relationship," Wis JI——Criminal 1248 (emphasis added). This opening statement appropriately includes intent.  However, in stating that the second element of the crime is the defendant's sexual contact with the victim during the relationship, and in describing this second element, the instructions fail to include intent. See id. (stating, "Second, that the defendant had sexual contact with (name of victim)," and later stating, "The second element requires that the defendant had sexual contact with (name of victim)."). We therefore suggest review of these instructions.

¶24        Accordingly, we disavow the court of appeals discussion of "intentionally." DeLain, 272 Wis. 2d 356, ¶¶10-11. Instead, we conclude that it is the totality of the circumstances, which in this case included a stipulation that DeLain provided therapy to J.F. on all her visits, that determines whether there was an ongoing therapist-patient relationship when sexual contact occurred. A defendant's state of mind is one factor in this totality of the circumstances analysis. Further, a secret unilateral action of a patient may also be a factor, although not necessarily the decisive factor, as urged by DeLain. Similarly, the explicit remarks of one party to the other regarding the status of the relationship may be a factor, but not necessarily the dispositive factor, as proposed by the State. Other factors that may appropriately enter into the analysis include, but are not limited to: how much time has gone by since the last therapy session; how close together the therapy sessions had been to each other; the age of the patient; the particular vulnerabilities experienced by the patient as a result of his or her mental health issues; and the ethical obligations of the therapist's profession. ^[5] Only upon consideration of all the circumstances that are relevant in a given case may we fully address the legislature's concern for protecting the public.

¶64. We agree with the court of appeals that M.M.'s testimony did not follow a chronological order. A reasonable factfinder could, however, draw the inference that the defendant verbally threatened to have retaliatory sex with M.M. and that the sexual contact occurred while he was wrestling and struggling with her to overcome her resistance. Wrestling, struggling, verbally threatening unwanted sex, tearing the victim's clothes, and breaking her finger are a sufficient use or threat of force or violence to support a conviction under Wis. Stat. § 940.225(2)(a).

¶17 Here, the State had to prove four things: (1) that Perkins had sexual contact or intercourse with H.V.; (2) that H.V. suffered from a mental illness or deficiency at the time of the sexual contact or intercourse; (3) that the mental illness or deficiency rendered H.V. temporarily or permanently incapable of appraising her conduct, or in other words, H.V. must have lacked the ability to evaluate the significance of her conduct because of her mental illness or deficiency; and (4) Perkins knew that H.V. was suffering from a mental illness or deficiency and knew that the mental condition rendered H.V. temporarily or permanently incapable of appraising her conduct. See WIS JI—CRIMINAL 1211. Perkins insists that the State failed in two regards—there was insufficient evidence to establish that H.V. suffered from a mental illness and that Perkins knew of her illness. We disagree.

¶18 Perkins asserts that without expert testimony, there was insufficient evidence to establish that H.V. suffered from a mental illness. …

¶19 He does not, however, point to a single statute requiring expert testimony to prove a victim’s mental condition. Furthermore, he ignores the comment following the jury instruction for WIS. STAT. § 940.225 …. The jury is not asked to diagnose the victim’s mental illness or deficiency—the State only has to prove that the victim suffered from a mental illness or deficiency that rendered the victim incapable of appraising his or her conduct.

…

¶21 Moreover, when the matter to be determined is within the common understanding of the jury, lay opinion testimony may be sufficient. In light of the lack of Wisconsin precedent requiring expert testimony in cases such as this, and the lack of any statutory language defining the requisite mental illness or deficiency or requiring such testimony, we cannot conclude that expert testimony should be required in every case to establish the existence of a mental illness or deficiency rendering the victim unable to appraise his or her conduct under WIS. STAT. § 940.225(2)(c).

Of note: The court’s statutory construction analysis may be of some interest, in particular the court’s reliance on the LRB Bill Drafting Manual which, the court pointedly says, is not an extrinsic source (i.e., one that may be consulted only if the statutory text is ambiguous) but, rather, is a reference work that “assists us in determining the meaning of the statutory language itself by revealing the standards and definitions relied on by those who choose and arrange the words, phrases and punctuation found in the Wisconsin Statutes.” ¶14 n. 8. The Manual is revised biennially. Not available on-line, the librarycall number is KFW/2821.5/B5/A85.

¶25      There is no statutory ambiguity or incompatibility between, on the one hand, a victim being incapable of consent because the victim is dead and, on the other hand, subsection (3)'s requirement that sexual intercourse occur "without the consent" of the victim. In order to achieve a conviction for third-degree sexual assault under Wis. Stat. § 940.225(3), the State must still prove the element "without consent" beyond a reasonable doubt; that endeavor is subject to a simple proof when the victim is a corpse.

¶26      The defendants' ambiguity argument with respect to the consent element of the statute suggests that they believe an element of a crime is rendered superfluous merely because it is simple to prove. They are mistaken. An element of a crime is not rendered superfluous because that element might be relatively easy to prove under the facts of a particular case. Rather, an element of a statute is superfluous when it is redundant of some other portion of the statute. See, e.g., State v. Dibble, 2002 WI App 219, ¶15, 257 Wis. 2d 274, 650 N.W.2d 908 (concluding that "reckless" and "utter disregard" are two distinct elements); State v. Dauer, 174 Wis. 2d 418, 431-32, 497 N.W.2d 766 (Ct. App. 1993) (concluding that "verbal, written or printed" threats are not redundant in regard to the crime of extortion). Similarly, no redundancy is created by the "without consent" element of subsection (3).

¶27      Moreover, the presence of subsection (7), which states that Wis. Stat. § 940.225 applies whether the victim is dead or alive, does not render the "without consent" element of subsection (3) superfluous. This is so because the statute also recognizes certain circumstances in which consent is "not an issue," thereby exempting the State from having to prove the lack of consent element in limited circumstances and without removing lack of consent as an element from other provisions. § 940.225(4). The absence of the circumstance of a dead victim from the list of circumstances in which consent is "not an issue" does not cause the lack of consent to become a superfluous element of the crime; rather, the absence merely leaves the element of consent intact. Subsection (7) reinforces that the State must prove that the sexual contact or sexual intercourse occurred without the victim's consent even though the victim is dead; by the plain meaning of its terms, subsection (7)'s application is not so limited as the defendants contend.

¶57      The circuit court had discretion to determine the necessity for, extent of, and form of reinstruction of the jury when responding to its request for clarification. Hareng, 90 Wis. 2d at 166 (citations omitted). Judge Wolfgram could have exercised his discretion by instructing the jury to re-read the jury instructions in their possession in light of the jury's request for a definition of "materially" impaired. "[A] court is not obligated to provide a jury with information solely because the jury believes it is important to its decision." State v. Lombard, 2004 WI App 52, ¶20, 271 Wis.  2d 529, 678 N.W.2d 338. However, once Judge Wolfgram correctly determined that "materially impaired" was not defined by "the Waalen language," he did not erroneously exercise his discretion by responding that the jury should give undefined words in the jury instructions their ordinary meaning. "If the overall meaning communicated by the instructions was a correct statement of the law, no grounds for reversal exist." Fischer, 168 Wis. 2d at 850 (citations omitted).

¶58      We hold that the court of appeals erred when it determined that this court's decision in Waalen gave the statutory term "materially impaired" a "peculiar meaning in the context of criminal charges," Hubbard, 306 Wis. 2d 356, ¶12, and that the jury should have been instructed accordingly. Id., ¶17. Thus, the circuit court did not erroneously exercise its discretion when it responded to the jury's request for clarification by indicating that the jury should "give all words not otherwise defined in the jury instructions their ordinary meaning." This succinct answer may not always suffice, but it was correct on the facts presented.

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.

¶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).

¶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.

¶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.

¶15      First, we reject Warbelton’s argument that his prior conviction is not an element of the stalking offense of which he was convicted, i.e., the Class H felony set out in Wis. Stat. § 940.32(2m)(a). We are not persuaded by Warbelton’s claim that his prior conviction “is akin to the penalty enhancers for being a ‘repeater’ or ‘persistent repeater’ under Wis. Stat. § 939.62.” ^[3] He likens § 940.32(2m)(a) to § 939.62, which addresses increased penalties for habitual criminality, and asserts that the otherwise-available maximum sentence for the underlying substantive crime in both statutes is increased due to the perpetrator’s prior record, rather than any action that is part of the new criminal activity, such as using a dangerous weapon within the meaning of Wis. Stat. § 939.63 ^[4] or § 940.32(3)(c). …

…

¶19      In fact, the statutory language of Wis. Stat. § 940.32 explicitly demonstrates that our Wisconsin legislature has determined that a “previous conviction for a violent crime” is an element of the stalking offense proscribed in § 940.32(2m)(a). Section 940.32 carefully sets out different fact situations which aggravate the offense of stalking. While we acknowledge that some of the scenarios are status-type factors, as Warbelton submits, many of the scenarios are not. We also consider it significant that, while penalty-enhancer statutes give the sentencing court the discretion to increase or not to increase the penalty, § 940.32(2m)(a) does not give such discretion. We conclude that the legislature meant subsec. (2m)(a) to convey that a “previous conviction for a violent crime” is a substantive element of the Class H felony stalking offense, not a penalty enhancer.

Johnson received several hang-up telephone calls on April 16, 1996. Sveum told Walls that he made the calls, and Walls relayed this information to Johnson. When asked how the phone calls made her feel, Johnson testified: "Scared. It was happening again." She also testified that she "was very afraid" that Sveum would hurt her. Based on this evidence, a reasonable jury could conclude that Johnson knew that Sveum placed the phone calls and that the calls induced fear in Johnson. Accordingly, we conclude that the evidence was sufficient to support Sveum's stalking conviction.

¶13      Underlying Moore ’s argument is his assumption that the State had to prove that Tamika was shown, or apprised of, the letters before Moore could be found guilty. ^[8] Under the circumstances of this case, we disagree. Regardless of whether the letters were addressed to Tamika or whether she was aware of their contents, it is obvious that Moore attempted to dissuade Tamika through her mother, Theresa. Theresa, as the parent of the minor child, had the parental responsibility and practical authority to monitor communications by third parties with her child, and to influence whether Tamika cooperated with the court proceedings. We conclude that there was sufficient evidence to convict Moore of attempting to intimidate Tamika.

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 ^[8]   Moore also assumes that the reason he was charged with attempting to dissuade, as opposed to dissuading, Tamika was that Tamika ultimately did testify. The State does not appear to quarrel with this assumption. We will likewise assume for purposes of this opinion that because Tamika chose to testify, Moore was appropriately charged with attempting to dissuade her from testifying.

¶10      To prove attempted intimidation of Tamika, the State was required to prove that: (1) Tamika was a witness; (2) Moore attempted to dissuade her from attending a proceeding or giving testimony at a proceeding authorized by law; and (3) Moore acted knowingly and maliciously. See Wis JI—Criminal 1292 (2000). The pattern jury instruction further suggests a definition of attempt: 

Attempt requires that the defendant intended to (prevent) (dissuade) (name of victim) from attending or giving testimony and did acts which indicated unequivocally that the defendant had that intent and would have (prevented) (dissuaded) (name of victim) from attending or giving testimony except for the intervention of another person or some other extraneous factor.

Id.   The instruction defines “dissuade” as “‘to advise against’ or ‘to turn from by persuasion.’” Id. (quoting Webster’s New Collegiate Dictionary).

¶5. We disagree with the circuit court and hold that the defendant's conviction in this case is barred by the common-law year-and-a-day rule. In order to reach this conclusion, we must address four successive questions of law that this court decides independent of the circuit court but benefiting from the circuit court's analysis. The four questions and this court's answers to them are as follows:

1. Is the common-law year-and-a-day rule the law in Wisconsin? We agree with both the State and the defendant that the year-and-a-day rule has been the law of Wisconsin since statehood, preserved through Article XIV, Section 13 of the Wisconsin Constitution.

2. If the year-and-a-day rule is the law in Wisconsin, does this court have the authority to abrogate the rule? This court has the authority to develop the common law and therefore may abrogate the year-and-a-day rule.

3. If this court has the authority to abrogate the year-and-a-day rule, do sufficiently compelling reasons exist for this court to do so now? This court should abrogate a common-law rule when the rule becomes unsound. We conclude that the year-and-a-day rule is an archaic rule that no longer makes sense. Accordingly, the court abolishes the rule.

4. Should the abrogation of the year-and-a-day rule apply to the defendant in the present case? The court may change or abrogate a common-law rule either retroactively or prospectively. We conclude that purely prospective abrogation of the year-and-a-day rule best serves the interests of justice. Thus, prosecutions for murder in which the conduct inflicting the death occurs after the date of this decision are permissible regardless of whether the victim dies more than a year and a day after the infliction of the fatal injury. The prosecution for first-degree reckless homicide in the present case, however, remains subject to the year-and-a-day rule, and because the fatal injury in the present case was inflicted more than a year and a day before the death of the victim, the defendant's conviction for first-degree reckless homicide is reversed.

(This is all clear enough: The year+ rule is viable up to 5/16/03, null subsequently. Conduct ultimately resulting in death must occur on or after 5/17/03 in order to come within the new (post-abrogation) regime. Beyond that, it is "clear that Article XIV, Section 13 specifically incorporates the common law of England as it existed in 1776 into the law of this state.” ¶10. Discerning which common law rules might require resort to such authorities as this (Blackstone); or this (Bracton); or this (Hale). Keep in mind that the supreme court has the authority to abrogate your genealogical effort, ¶24, and isn’t indifferent to its exercise, see State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998).
(What, though, of the practical impact of this particular holding? It’s not known how many prosecutions are or might be affected. But State v. Trevor McKee, 2002 WI App 148, holds that neither double jeopardy not lesser-offense statutes bar prosecution for homicide when the victim dies following the defendant's conviction and sentence for assaultive offenses related to the incident ultimating resulting in that death. In short, McKee eliminates possible procedural bar to prosecution; Picotte eliminates the substantive defense of no-causation. (Causation, of course, remains challengeable, but the "substantial factor" test is so easily met that such a challenge will very rarely be viable.)