State v. Moua

10 Citing cases

  1. State v. Arron A.-R. (In re Arron A.-R.)

    868 N.W.2d 198 (Wis. Ct. App. 2015)

    ¶ 8 In addition, as to count two, Arron submits that the trial court's mistaken belief that Wis. Stat. § 948.02(1)(c) encompassed sexual contact as well as sexual intercourse requires this court to reverse his conviction for that count and remand the case to the trial court so that a finding of not guilty can be entered.¶ 9 The State responds that, as to count one, the trial court found S.F.'s version of the events more credible than Arron's. S.F.'s allegations were also corroborated by her friend C.M. As to the second count, the State encourages this court to either amend the dispositional order to second-degree sexual assault, found in Wis. Stat. § 948.02(2), or attempted first-degree sexual assault, found in Wis. Stat. §§ 948.02(1)(c) and 939.32. As support for its request, the State cites State v. Moua, 215 Wis.2d 511, 573 N.W.2d 202 (Ct.App.1997), where this court found that second-degree sexual assault was a lesser-included offense of first-degree sexual assault.¶ 10 The standard for determining whether sufficient evidence supports the verdict is well established.

  2. Smith v. Jenkins

    Case No. 09-C-725 (E.D. Wis. Mar. 21, 2011)

    Smith, 768 N.W.2d at * 3. The court of appeals noted under Wisconsin law "[i]f a reasonable view of the evidence can support a guilty verdict beyond a reasonable doubt for both the greater and the lesser included offense, then no lesser included instruction may be given." Id. (citing State v. Moua, 573 N.W.2d 202, 205 (Wis. Ct. App. 1997)). If, however, a reasonable view of the evidence supports a guilty verdict on the lesser-included offense but casts doubt on an element of the greater offense, both verdicts should be submitted.

  3. State v. Smith

    2009 WI App. 56 (Wis. Ct. App. 2009)   Cited 1 times

    "A lesser included offense means that all the statutory elements of [the lesser] offense can be demonstrated without proof of any fact or element in addition to those that must be proved for the greater offense." Statev. Moua, 215 Wis. 2d 511, 519, 573 N.W.2d 202 (Ct. App. 1997). The State acknowledges that second-degree sexual assault of a child is a lesser included offense of first-degree sexual assault of a child.

  4. State v. Carruth

    1999 UT 107 (Utah 1999)   Cited 6 times
    Concluding that the prosecution may request jury instructions for lesser offenses necessarily included in those charged

    See, e.g., State v. Lovelace, 322 N.W.2d 673, 675 (Neb. 1982) ("In sum the lesser included offense is one all the elements of which are necessarily included in the greater."); State v. Shane, 465 S.E.2d 640, 643 (W.Va. 1995) (stating "offense is not a lesser included offense if it requires the inclusion of an element not required in the greater offense" (internal quotation omitted)); State v. Moua, 573 N.W.2d 202, 205 (Wis.Ct.App. 1997) ("A lesser included offense means that all the statutory elements of this offense can be demonstrated without proof of any fact or element in addition to those that must be proved for the greater offense."); State v. Keffer, 860 P.2d 1118, 1134 (Wyo. 1993) (stating "one offense is not `necessarily included' in another unless the elements of the lesser offense are a subset of the elements of the charged offense" (internal quotation omitted)). ¶ 18 We remain convinced that the principles set forth in Baker accurately reflect the correct operation of section 76-1-402 of the Utah Code and rule 21(e) of the Utah Rules of Criminal Procedure.

  5. State v. Scott

    2017 WI App. 40 (Wis. Ct. App. 2017)   Cited 2 times

    In either case, whether considered first-degree sexual assaults or second-degree sexual assaults, Scott was in violation of the Class C felony of engaging in repeated acts of sexual assault of the same child, whether under WIS. STAT . § 948.025(1)(b) (2005-06) or WIS. STAT . § 948.025(1)(e) (2007-08). See State v. Moua , 215 Wis.2d 511, 519-20, 573 N.W.2d 202 (Ct. App. 1997) (holding that second-degree sexual assault is a lesser-included offense of first-degree sexual assault because "[i]f the State proves that the child is under thirteen, a necessary element of first-degree sexual assault under § 948.02(1), then the State has proved all the elements for the offense of second-degree sexual assault, since it has proved that a child is under sixteen").¶23 Thus, as to Scott, the difference between first-degree sexual assault and second-degree sexual assault is the age of the victim; under thirteen years of age in the former and under sixteen years of age in the latter.

  6. State v. Jones

    879 N.W.2d 809 (Wis. Ct. App. 2016)

    ¶ 28 “Whether the evidence at trial supports the submission of a lesser included offense is a question of law,” which we review de novo. State v. Moua, 215 Wis.2d 511, 517, 573 N.W.2d 202 (Ct.App.1997). We apply a two-part test to determine whether to instruct the jury on a lesser offense.

  7. State v. Martin

    2012 WI App. 73 (Wis. Ct. App. 2012)

    A lesser-included instruction should be given when there are reasonable grounds in the evidence for acquittal of the greater charge and conviction of the lesser charge even when a defendant objects to the instruction. See State v. Moua, 215 Wis.2d 511, 519, 573 N.W.2d 202, 205 (Ct.App.1997). Here, Martin was charged with armed robbery.

  8. State v. Mack

    776 N.W.2d 100 (Wis. Ct. App. 2009)

    For example, if a defendant knowingly had sexual contact with a child between the ages of 14 and 17 who was related to him by a degree of kinship closer than second cousin, he would be guilty of incest with a child but would not be guilty of first-degree sexual assault of a child. Mack's reliance on State v. Moua, 215 Wis. 2d 511, 573 N.W.2d 202 (Ct. App. 1997), is misplaced. In Moua, this court determined that second-degree sexual assault of a child was a lesser included offense of first-degree sexual assault of a child because, by proving that a defendant had sexual contact with a victim who was under the age of 13, the State also proved that the defendant had sexual contact with a victim who was under the age of 16, and was thus guilty of second-degree sexual assault of a child.

  9. State v. Jones

    640 N.W.2d 564 (Wis. Ct. App. 2002)

    The question is whether a reasonable view of the evidence supports guilt of the lesser-included offense and reasonable doubt as to some element of the greater offense. State v.Moua, 215 Wis.2d 511, 518, 573 N.W.2d 202 (Ct.App. 1997). We agree with the circuit court that the passage of time between the assault and Jones's arrest does not yield a logical inference that Jones never possessed a knife.

  10. State v. Fitzgerald

    2000 WI App. 55 (Wis. Ct. App. 2000)   Cited 11 times   1 Legal Analyses
    Discussing application of the administrative rule to probationers

    When considering a request for a lesser-included offense instruction, the court must first determine whether "the lesser offense is, as a matter of law, a lesser included offense of the crime charged." State v. Moua, 215 Wis.2d 511, 517, 573 N.W.2d 202 (Ct.App. 1997). If so, then the court considers whether the evidence justifies the instruction. Seeid.