COURT OF APPEALS

DECISION

DATED AND FILED

April 20, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP970-CR Cir. Ct. No. 2018CF154

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

CHRISTOPHER LYNN MOORE,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Marinette County: JAMES A. MORRISON, Judge. Affirmed. 

Before Stark, P.J., Hruz and Seidl, JJ. 

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. Christopher Moore appeals from a drug conviction 

and an order denying, in part, his postconviction motion to clarify or modify a 
No. 2020AP970-CR

2

condition of his extended supervision. He challenges a condition of his 

supervision requiring him to obtain preapproval from his probation agent before 

using prescription drugs. We affirm.

BACKGROUND

¶2 Based upon numerous items seized during a traffic stop, the State 

charged Moore with one count of possession with intent to deliver cocaine, one 

count of possession with intent to deliver ecstasy, and one count of possession of 

drug paraphernalia, each as a repeat offender and as a second or subsequent 

offense. Moore eventually pleaded no contest to the count of possession with 

intent to deliver cocaine, in exchange for the dismissal of the other counts as 

read-in offenses, dropping the sentence enhancers, and the dismissal of a charge in 

another case. 

¶3 The circuit court sentenced Moore to five years’ initial confinement 

and five years’ extended supervision. When imposing conditions for Moore’s 

extended supervision, the court stated:

Absolute sobriety, no alcohol, no drugs, even legal drugs. 

The only exception to that will be legal drugs that have 

been prescribed by your physician and that are taken 

pursuant to the prescription and only after the agent 

approves. If you happen to live anywhere in the world 

where THC is legal, it is illegal in Wisconsin, and 

therefore, you may not use it. 

 ....

It’s illegal here. It’s illegal today. So even if they legalize 

it tomorrow, it’s illegal to you for the rest of your sentence, 

no matter where in the universe you live. If you need to 

take a prescription medication, if, for instance, you might 

have prescription medication directed as part of a—as part 

of a treatment program, you can do that, but only if your 

agent approves in advance.
No. 2020AP970-CR

3

The judgment of conviction memorialized this condition of extended supervision 

with the notation: “No alcohol, no illegal or legal drugs except with a valid 

prescription by Dr. and agent approved.” 

¶4 Moore moved to modify or clarify the condition that he obtain 

preapproval for “legal drugs.” He claimed that the preapproval condition 

represented an erroneous exercise of discretion and violated his Eighth 

Amendment right against cruel and unusual punishment because it was overly

broad. Moore argued that the condition, as written, would prohibit things such as 

drinking a cup of green tea without first calling a doctor and his agent, and it 

would prevent medical personnel from administering epinephrine in response to an 

allergic reaction. Moore proposed that the condition be reworded to state: “No 

alcohol, no illegal drugs, no marijuana, no reasonably abusive prescription 

medication without a valid prescription and approval by the agent; however, 

medically necessary drugs can be used in time of emergency.” 

¶5 The circuit court granted the motion in part. At the postconviction 

hearing, the court clarified:

What I always say and what I intend to say is that he may 

not use any alcohol, any illegal drugs, including marijuana, 

whether it’s legal in some other state or not, it’s illegal for 

him; or he may not use any prescription medication except 

pursuant to a valid prescription, taken as prescribed, and 

with the advance approval of his agent, the only exception 

being stuff he gets in the hospital when he’s unconscious.

That’s what I always say.

The court agreed that the preapproval condition for “legal drugs” could be 

modified in conformity with the court’s revised wording at the postconviction

hearing. The court also clarified that the preapproval condition did not apply to 

caffeine. The court subsequently entered an order directing that the judgment of 
No. 2020AP970-CR

4

conviction be amended to state: “No alcohol, no illegal drugs, no marijuana, no 

prescription drugs without advance approval of an agent and pursuant to a doctor’s 

prescription.” However, the court refused to further modify the preapproval 

condition by limiting it to “reasonably abusive prescription medication.” 

¶6 Moore now appeals. He contends that the amended condition of 

supervision still represents an erroneous exercise of discretion and a violation of 

the Eighth Amendment because it requires preapproval for what he deems are 

“non-abusive prescription drugs” and “life-saving emergency drugs.”

DISCUSSION

¶7 As a threshold matter, we disagree with Moore’s characterization of 

the preapproval condition of his supervision as applying to “life-saving emergency 

drugs.” Many prescription drugs are used to treat potentially life-threatening 

conditions, and thus could be viewed as “life-saving.” However, medical 

personnel issue written prescriptions for drugs to patients in advance of, not in 

response to, an emergency situation. Drugs administered by medical personnel in 

an emergency situation are not obtained or used by prescription, and they are 

therefore outside the scope of the preapproval condition at issue here. Any other 

interpretation of the preapproval condition would be absurd. See State v. Lo, 228 

Wis. 2d 531, 537, 599 N.W.2d 659 (Ct. App. 1999) (conditions of supervision 

should be given “commonsense” constructions). We therefore limit our discussion 

below to whether requiring preapproval for what Moore refers to as “non-abusive 

prescription drugs” represents an erroneous exercise of discretion or a violation of 

the Eighth Amendment.

¶8 A circuit court has wide discretion to impose “reasonable and 

appropriate” conditions of supervision. State v. Stewart, 2006 WI App 67, ¶11, 
No. 2020AP970-CR

5

291 Wis. 2d 480, 713 N.W.2d 165. We review the reasonableness of such 

conditions under the erroneous exercise of discretion standard, “measured by how 

well they serve their objectives: rehabilitation and protection of the state and 

community interest.” Id. In addition, we will independently determine whether a 

particular condition violates a defendant’s constitutional rights. Id., ¶12.

¶9 Moore first contends the preapproval condition imposed by the 

circuit court is neither reasonable nor appropriate. He argues that requiring an 

agent’s preapproval for his use of non-abusive prescription drugs does not further 

the goal of rehabilitation because he was not charged with abusing such drugs. He 

further asserts that the public would have no need to be protected from his use of

non-abusive prescription drugs. We disagree with both points.

¶10 A condition that would assist the supervised individual “in 

conforming his or her conduct to the law” is reasonably related to both the 

rehabilitation of the offender and the protection of the public. State v. Oakley, 

2001 WI 103, ¶¶18-21, 245 Wis. 2d 447, 629 N.W.2d 200. Here, the read-in 

offenses and Moore’s extensive criminal history showed that Moore had been

selling more than one type of illegal drug and that he was also using illegal drugs 

himself. Moore also admitted to both presentence investigation report authors 

that that he had used and sometimes abused numerous legal intoxicating 

substances in the past—including alcohol, tobacco, and prescription pills. It is not 

unreasonably “theoretical,” as Moore contends, to consider that Moore might turn 

to selling or trading prescription drugs in an attempt to replace his lost income 

stream, or to continue to feed his own drug habit by abusing prescription drugs. 

¶11 Moreover, we are not persuaded the term “non-abusive prescription 

drugs” is useful, because any prescription drug could be abused if taken in 
No. 2020AP970-CR

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excessive quantities, or if used by a person to whom it was not prescribed or to 

whom it was prescribed based upon invented or exaggerated ailments. Moore’s 

agent would be in a position to observe whether Moore was, in fact, acting in 

conformity with any claimed ailments for which he sought prescriptions. In short, 

requiring Moore to obtain preapproval for prescription drugs is a reasonable and 

appropriate measure to ensure that Moore can obtain and use only those 

prescriptions that truly meet his medical needs and that he is unlikely to sell, trade, 

or abuse himself.

¶12 Moore next contends that requiring him to obtain agent approval 

before using prescription drugs constitutes a “cruel and unusual punishment” that 

could adversely impact his health. See U.S. CONST. amend. VIII. He cites no case 

in which a similar preapproval condition has been found unconstitutional, 

however, and he provides no argument as to how the preapproval condition here 

would qualify as “punitive” under the intents-effects tests used to evaluate Eighth 

Amendment claims. See State v. Muldrow, 2018 WI 52, ¶¶30-31, 381 Wis. 2d 

492, 912 N.W.2d 74. Instead, Moore argues that the condition is cruel and 

unusual because it is “grossly disproportionate to the severity of the crime” and 

“so excessive and unusual ... as to shock public sentiment.” 

¶13 The disproportionality test Moore relies upon is generally used to 

determine whether the length of a sentence is unduly harsh or unconscionable. See

State v. Ninham, 2011 WI 33, ¶85, 333 Wis. 2d 335, 797 N.W.2d 451. Again, 

Moore has cited no case applying the disproportionality test to a condition of 

probation in the context of an Eighth Amendment claim. Even if the 

disproportionality test could be applied to a condition of probation, we have 

already explained why the preapproval condition at issue here was reasonable and 

appropriate. For the same reasons, we do not find it to be a disproportionate 
No. 2020AP970-CR

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response to Moore’s conviction for possession with intent to deliver cocaine, in 

conjunction with the additional read-in offenses and Moore’s criminal history. We 

conclude the circuit court properly denied Moore’s Eighth Amendment claim, as 

well as his challenge to the court’s exercise of its discretion.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5. (2019-20).