Fenske v. State

I respectfully dissent. On this second appeal to our court by defendant Stan T. Fenske, questions of law are at issue that were not raised or considered in the first appeal. The first appeal, on which Fenske’s conviction was affirmed, considered only a question of sufficiency of the evidence. This second appeal attacks our affirmance in the first appeal on the ground that it was based on a theory of guilt that differs from the prosecutor’s theory on which the case was tried or on which the jury convicted. As such, Fenske asserts he has suffered a violation of his constitutional right to trial…