Criminal Law
Identify Theft – Elements – State Not Required to Prove Defendant Knew Personal Identifying Information Belonged to an Actual Person
State v. Moreno-Acosta, 2014 WI App 122 (filed 19 Nov. 2014) (ordered published 19 Dec. 2014)
HOLDING: In an identity theft prosecution under Wis. Stat. section 943.201(2)(a), the state must prove that the misappropriated personal identifying information belonged to an individual but need not prove that the defendant knew that the information was that of another actual person.
SUMMARY: Defendant Moreno-Acosta, an undocumented immigrant, was convicted of identity theft contrary to Wis. Stat. section 943.201(2)(a) for using H’s Social Security number (SSN) to obtain employment at a McDonald’s restaurant. At the jury trial, H identified her SSN on a photocopy of a Social Security card that was in Moreno-Acosta’s employment file. She testified that she did not know Moreno-Acosta and had never seen him before. She further stated that she had never given him permission to use her SSN.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
On appeal, the defendant argued that the state had to prove, as a separate element of the identity theft crime, that he knew that the personal identifying information he used belonged to an actual person. The trial judge refused to give a special instruction to that effect.
In a decision authored by Judge Neubauer, the court of appeals affirmed. It concluded that “to prove identity theft, the State had to establish that the defendant had the mental purpose to obtain employment or anything else of value or benefit by using personal identifying information of the victim without her consent or authorization. Thus, while the State must prove that the information used did in fact belong to an individual, it need not prove that the defendant knew that the information was of another actual person” (¶ 15).
Criminal Procedure
Expungement of Convictions – Wis. Stat. section 973.015 – Expungement Unavailable for County Ordinance Convictions
Kenosha Cnty. v. Frett, 2014 WI App 127 (filed 19 Nov. 2014) (ordered published 19 Dec. 2014)
HOLDING: The expungement statute (Wis. Stat. § 973.015) does not apply to convictions for violating county ordinances punishable only by a forfeiture.
SUMMARY: The defendant was convicted of littering in violation of the Kenosha County ordinances. Approximately one year after paying the forfeiture for this violation, she moved the circuit court to expunge the record of the conviction pursuant to Wis. Stat. section 973.015. The circuit court denied the motion. In a decision authored by Judge Gundrum, the court of appeals affirmed.
The issue before the appellate court was whether the expungement statute can be applied to a conviction, punishable only by a forfeiture, for violating a county ordinance. The court concluded that the statute does not apply.
Said the court, “[l]ooking to the language of the statute, para. (1)(a) provides that a court may order expunction ‘when a person is under the age of 25 at the time of the commission of an offense for which the person has been found guilty in a court for violation of a law for which the maximum period of imprisonment is 6 years or less.’ (Emphasis added.) We read this language as indicating that law violations for which expunction is available relate to laws that include some ‘period of imprisonment.’ Thus, where there is no ‘period of imprisonment’ associated with a law, that law is not one to which Wis. Stat. § 973.015 applies. As [defendant] Frett acknowledges on appeal, the county ordinance she violated included no potential period of imprisonment” (¶ 6).
Search Warrants – Emails – Sufficiency of Warrants
State v. Rindfleisch, 2014 WI App 121 (filed 12 Nov. 2014) (ordered published 19 Dec. 2014)
HOLDING: The search warrants commanding Internet service providers (ISPs) to produce the defendant’s email did not violate the Fourth Amendment.
SUMMARY: Defendant Rindfleisch was charged with four counts of misconduct in public office, in violation of Wis. Stat. section 946.12(3), based on a complaint alleging that she engaged in partisan campaign activities, including political fundraising, during working hours while she was a Milwaukee County employee. She moved to suppress all evidence resulting from search warrants ordering Google and Yahoo to produce from her email accounts emails between specific dates, together with the account-ownership identifying data. Her claim was that the warrants lacked sufficient particularity and thus were “general warrants” in violation of her Fourth Amendment rights. The circuit court denied the motion.
In a majority decision authored by Judge Kessler, the court of appeals affirmed. It concluded that the warrants were based on probable cause established by affidavit, were authorized by a judge, and particularly described the place to be searched and the items to be seized (see ¶ 42). With respect to the latter, the court found that the two ISPs were specifically identified by name and address, that the places within their data storage system were particularly described, and that the affidavit identified specific email accounts with which the warrants were concerned (see ¶¶ 32-33).
The ISPs returned their electronic information with an oath or affirmation that the records produced complied with the warrants and that they had redacted information from their productions that was beyond the scope of the warrant (see ¶¶ 37, 40). The defendant offered no evidence suggesting that the search exceeded the locations specified in the warrant.
The defendant argued that the Fourth Amendment, as applied to electronic communications, should be read to require an extra layer of protection not historically accorded paper documents, namely an electronic “filter” (the details of which she did not specify) to keep her “personal” or “private” material from being disclosed. She identified no specific “personal” or “private” material that had been improperly produced.
Alternatively, she suggested that a third party should have been appointed by the warrant-issuing judge to review what Google and Yahoo produced. That third person would be the arbiter of what, within the data produced, would be available to the government. Said the court in response, “[w]e are not persuaded” (¶ 39).
Judge Fine filed a dissenting opinion.
Searches – Exigent Circumstances
State v. Parisi, 2014 WI App 129 (filed 19 Nov. 2014) (ordered published 19 Dec. 2014)
HOLDING: Exigent circumstances justified the warrantless entry into an apartment where police believed people were smoking marijuana.
SUMMARY: Police officers smelled the odor of burning marijuana emanating from an apartment. One officer heard voices in the apartment but no one answered the door when the officer knocked several times. A drug-sniffing dog also “alerted” to the apartment door. Concerned that the people inside might be destroying evidence, the officers entered without a warrant. In plain view, they found evidence of marijuana usage and possession, based on which they obtained a search warrant. The defendant pleaded guilty after the circuit court denied her motion to suppress the evidence based on the warrantless entry.
The court of appeals affirmed in an opinion written by Judge Gundrum. Essentially, the court held that the police officers had probable cause to believe persons were smoking – and thus “destroying” – marijuana in the apartment. Exigent circumstances justified the entry even without any other signs of overt destruction, such as flushing toilets. The officer’s knock on the door was itself lawful; under case law, it did not impermissibly generate the exigency. Police officers need only a “reasonable belief” that a delay in procuring a search warrant would risk destruction of evidence (see ¶ 12).
Voir Dire – Jurors’ Promises – Nullification – Plain Error
State v. Zdzieblowski, 2014 WI App 130 (filed 6 Nov. 2014) (ordered published 19 Dec. 2014)
HOLDING: A prosecutor’s voir dire of prospective jurors did not violate the defendant’s rights or justify a new trial.
SUMMARY: The defendant, age 73, was stopped while driving and charged with sixth-offense operating while intoxicated (OWI). At the time of his arrest for this offense, he was prohibited from driving with more than a 0.02 blood alcohol concentration (BAC), and a separate bond condition required absolute sobriety. When the defendant was stopped, the defendant’s BAC was 0.035. During voir dire, the prosecutor extracted promises from jurors that they would decide the case based on the evidence and law (for example, they would convict if convinced of the defendant’s guilt beyond a reasonable doubt). During closing argument, the prosecutor emphasized the jury’s promises. The defendant did not object to the voir dire questions or to the closing argument. The jury convicted him.
The court of appeals affirmed in an opinion authored by Judge Kloppenburg. Essentially, the defense contended that the combination of promises and their emphasis in closing argument “diminished” (“eroded”) the defendant’s prospects for jury nullification (see ¶ 8). No Wisconsin case had addressed the propriety of the prosecutor’s voir dire questions. Authority from other states, however, supported the questions.
“The principles that can be derived from this persuasive authority are that voir dire questions that assume proof of, or demand consideration of, only what the law requires are proper because they ask that the jurors do no more than promise to fulfill their duty to follow the law, and do not limit the jurors’ consideration of any pertinent factors or invite them to prejudge any particular fact. Under this view, the prosecutor’s question [in this case] was not a violation of [the defendant’s] right to a trial by jury. We are persuaded by this view” (¶ 14).
Based on the record before it, the court held that there was no plain error and that the real controversy had been fully tried. And even assuming the prosecutor’s conduct was error, it was harmless.
Family Law
Children – Guardianships – Placement
Tina B. v. Richard H., 2014 WI App 123 (filed 13 Nov. 2014) (ordered published 19 Dec. 2014)
HOLDING: The circuit court properly denied a biological father’s petition for a change of his child’s placement and properly granted the foster parents a guardianship under Wis. Stat. chapter 48 but denied their Wis. Stat. chapter 54 petition for guardianship.
SUMMARY: EH, born in 2005, was placed in her current foster home in 2007. Her biological father petitioned for EH’s change of placement from the foster parents’ home to his home. The foster parents objected and in turn requested guardianship over EH under Wis. Stat. chapter 48 and chapter 54. The circuit court held a joint hearing on all petitions and then denied the father’s petition while granting the foster parents’ guardianships under both chapters 48 and 54. The court later reversed its order on the chapter 54 petition because the hearing was held more than 90 days after that petition’s filing. Both sides appealed.
The court of appeals affirmed in an opinion authored by Judge Blanchard. As to the foster parents’ appeal, the trial judge properly denied their guardianship petition under chapter 54. Hearings on chapter 54 petitions must be held within 90 days after filing or the court loses competency. Wis. Stat. § 54.44(1)(a). Nor can parties waive the time limit, according to persuasive case law (see ¶¶ 23, 27).
The biological father’s appeal challenged, on three grounds, only the denial of his petition for placement. The court of appeals held first that the father failed to demonstrate any impropriety in the court’s conduct of a joint hearing on all petitions (see ¶ 38). The discussion addresses substantive distinctions among the three different petitions at play here. Second, the circuit court properly applied the best interests of the child standard in denying the father’s petition, especially considering the child’s close relationship with the foster parents and how long she has lived with them (see ¶ 50). Third, the circuit court properly ordered the sequestration of witnesses, including a county social worker (see ¶ 55).
Insurance
Actual Cash Value – Bad Appraisal – Bad Faith
Coppins v. Allstate Indemnity Co., 2014 WI App 125 (filed 12 Nov. 2014) (ordered published 19 Dec. 2014)
HOLDING: Insurance covering “actual cash value” of a duplex was not limited to market value; issues of fact precluded summary judgment on bad-faith and contract claims.
SUMMARY: A fire destroyed a duplex. An Allstate policy covered the duplex’s “actual cash value” but did not define the term. Allstate’s appraiser placed the property’s current market value at approximately $50,000, even though its own claims adjustor initially valued it at more than three times that amount using another method. The plaintiffs’ appraisers relied on replacement value, finding a much higher amount. The circuit court granted summary judgment to Allstate based on another appraiser’s (the policy “umpire”) current market value approach that set the duplex’s value at approximately $75,000.
The court of appeals reversed in an opinion authored by Judge Curley. The appraiser-umpire relied on by the circuit court “did not understand how to calculate ‘actual cash value.’ Contrary to what Allstate argues, the fact that the policy does not define ‘actual cash value’ does not mean that the determination is some sort of free-for-all where an appraised can utilize any calculation of his or her choosing based on nothing more than feelings” (¶ 29).
Taking judicial notice from several Internet sources, including the insurance commissioner’s office and Allstate’s own website, the court held that “actual cash value should have been calculated primarily by subtracting depreciation from the cost to replace the damaged materials” (¶ 30). “If Allstate planned to focus on the property’s market value to determine coverage, the policy should have clearly said so” (¶ 31). “Because the appraiser essentially substituted market value for actual cash value, and because there is no basis in the policy for the appraiser’s substitution, we conclude that the appraiser did not understand his contractually assigned task and that the award must be set aside” (¶ 32).
The court also held that issues of fact precluded summary judgment. It highlighted Allstate’s rejection of its own claims adjustor’s initial calculation of actual cash value, which was substantially higher than a second appraisal based on market value (see ¶ 35).
Property – “Full Value” – Raze Orders – Interest
Haynes v. American Family Mut. Ins. Co., 2014 WI App 128 (filed 4 Nov. 2014) (ordered published 19 Dec. 2014)
HOLDING: An insured whose home, in which she conducted her business, was subject to a raze order was entitled to the property’s full value, not the cost of repair.
SUMMARY: The insured’s home, in which she also provided day care, was extensively damaged by fire. The city issued a raze order that directed the insured to “raze and remove” the building because it was “unreasonable to repair” it. Neither the owner nor her insurer, American Family, appealed the raze order. The insurance policy promised the policy’s “full value” if the property were “wholly destroyed” (¶ 3). The insurer instead offered the cost to repair or replace the structure, which was significantly less money.
The circuit court ruled in favor of the insurer based on the city’s representation that despite the raze order, it “almost always” gave the owner the option to rebuild. The court also declined to impose 12 percent interest on the tendered replacement cost.
The court of appeals reversed in part and affirmed in part in an opinion authored by Judge Fine. The circuit court erred in finding that the insurer owed only the building’s replacement value. The home was wholly destroyed within the meaning of Wis. Stat. section 632.05(2), which “requires insurance companies to pay their insured the full value of the insured-value of the property under these circumstances” (¶ 15). “The unappealed Raze Order, which … applied the mandated statutory formula, is conclusive” (¶ 16). Thus, the insurer owed its insured approximately $245,000 – not $131,000.
The insured was not entitled, however, to 12 percent interest pursuant to Wis. Stat. section 628.46 based on the insurer’s failure to pay its settlement offer (approximately $131,000) within 30 days. The $131,000 was “not the statutorily requisite undisputed liability” – it represented a compromise, not the “actual amount” of damages (¶ 21).
