Defendants Option Not Presenting Evidence In Motion to Dismiss

In State v. Kelley, 107 Wis. 2d 540, 319 N.W.2d 869 (1982), the supreme court reiterated that "where a defendant moves for a dismissal ... at the close of the prosecution's case and when the motion is denied, '... the introduction of evidence by the defendant, if the entire evidence is sufficient to sustain a conviction, waives the motion to dismiss.'" Kelley, 107 Wis. 2d at 544. Thus, a defendant has a dilemma: if the motion to dismiss is denied, the defendant "has the option of either not presenting any evidence on his behalf and preserving the ruling for appeal or abandoning his motion and introducing his defense." Id. at 545.