No decisions were released.

• Criminal Law/ Appeal Barred
  
  State v. Gray
  Docket: 2007AP001039 09-03-08
  

  PER CURIAM. David L. Gray appeals from an order denying his postconviction "motion to correct" as procedurally barred. We conclude that Gray's "motion to correct" is procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-82, 517 N.W.2d 157 (1994), for his failure to allege why he did not (adequately) raise these issues on direct appeal, or in his two previous postconviction motions. Therefore, we affirm.
• Criminal Law/ Constitutional Law-Due Process/ Destruction of Evidence/ Exculpatory Evidence
  
  State v. Pride
  Docket: 2007AP002296 09-03-08
  

  PER CURIAM. Melvin Pride appeals from a judgment convicting him of possessing cocaine with intent to deliver as a second or subsequent offense, and from an order denying his postconviction motion. Pride claims that the police destroyed apparently exculpatory evidence, thereby violating his right to due process of law. Because we conclude that the police destroyed evidence that was no more than potentially useful to the defense, we reject Pride's contentions and affirm.
• Criminal Law/ Evidence
  
  State v. Martin
  Docket: 2007AP001293 09-03-08
  

  PER CURIAM. William Martin appeals from a judgment of conviction for robbery. The issue is whether there was sufficient evidence to support the jury's guilty verdict, and to deny Martin's motion for a directed verdict of acquittal. We conclude that there was sufficient evidence in the State's case-in-chief to support a guilty verdict against Martin for robbery, and that there was necessarily sufficient evidence to defeat Martin's motion for a directed verdict. Therefore, we affirm.
• Criminal Law/ Evidence
  
  State v. Wuerzberger
  Docket: 2007AP002085 09-03-08
  

  KESSLER, J. After entering a guilty plea to one count of fleeing an officer and one count of operating a vehicle without the owner's consent, William Lee Wuerzberger appeals from the judgment of conviction and the denial of his postconviction motion. The appeal is grounded on denial of his motion to suppress evidence of his identification, which he asserts was obtained in violation of State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582. We conclude that Dubose is not controlling and affirm the judgment.
• Criminal Law/ Evidence/ Evidence Ruling/ New Trial/ Defendant's Visible Restraint/ Judicial Authority-Discretion
  
  State v. Wilber
  Docket: 2007AP002327 09-03-08
  

  KESSLER, J. Danny L. Wilber appeals from a judgment convicting him of first-degree intentional homicide by use of a dangerous weapon contrary to WIS. STAT. §§ 940.01(1)(a) and 939.63 (2003-04), and from an order denying his motion for postconviction relief. Wilber argues that he is entitled to a new trial because: (1) the trial court erroneously admitted evidence concerning burned shoes to establish consciousness of guilt; and (2) the trial court erroneously exercised its discretion when it ordered that Wilber be placed in a wheelchair with restraints during closing argument. We reject his arguments and affirm.
• Criminal Law/ Evidence/ Line Ups
  
  State v. Dodd
  Docket: 2007AP000802 09-03-08
  

  PER CURIAM. Jason R. Dodd appeals from a judgment of conviction for armed robbery, and from a post-remand order confirming the denial of his suppression motion applying State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582. The issue is whether the showup identification conducted prior to Dubose would have nevertheless been valid pursuant to Dubose's exigent circumstances exception. We conclude that the showup identification was justified under the totality of the circumstances pursuant to the exigent circumstances exception in Dubose. Therefore, we affirm.
• Criminal Law/ Ineffective Assistance of Counsel/ Appeal Barred
  
  State v. Jines
  Docket: 2007AP000214 09-03-08
  

  PER CURIAM. Landris T. Jines appeals from an order summarily denying his postconviction motion. We conclude that Jines has failed to "affirmatively prove" the prejudice necessary to prevail on an ineffective assistance of counsel claim. Therefore, we affirm.
• Criminal Law/ Ineffective Assistance of Counsel/ Statutes/ Statutory Construction-Interpretation/ Constitutional Law/ Evidence Ruling/ Judicial Authority-Discretion/ Searches
  
  State v. Sileno
  Docket: 2007AP002955 09-03-08
  

  LAROCQUE, J. Joseph P. Sileno appeals from a judgment entered following a trial to the court, wherein Sileno was found guilty of possession of a machine gun in violation of WIS. STAT. § 941.26(1)(a) (2005-06). He also appeals from an order denying his postconviction motion. Sileno asserts four claims for our review: (1) his trial counsel provided ineffective assistance by failing to notify the Attorney General's office when making the claim that § 941.26(1)(a) was unconstitutional; (2) the trial court should have granted the motion to dismiss on the ground that § 941.26(1)(a) was unconstitutional; (3) the trial court erred in denying the motion to suppress; and (4) the trial court erroneously exercised its discretion when it refused to modify the sentence based on new factors. Because Sileno failed to assert any prejudice as a result of trial counsel's failure to notify the Attorney General; because Sileno failed to establish that the statute involved was unconstitutional; because the trial court did not err in denying the suppression motion; and because there was no erroneous exercise of sentencing discretion or new factors, we affirm.
• Criminal Law/ Jurors/ Mistrial/ Judicial Authority-Discretion
  
  State v. Jaja
  Docket: 2008AP000058 09-04-08
  

  DYKMAN, J. Bright Jaja appeals from a judgment following a jury verdict convicting him of knowingly violating a domestic abuse injunction. See WIS. STAT. § 813.12(8)(a). Jaja asserts that he was denied his right to a fair trial when the complaining juror, Jolynn Steurer, made comments to jurors intended to influence their verdict during a recess at trial. He argues that the trial court erroneously exercised its discretion in denying his motion for a mistrial and that his conviction must be reversed. We disagree, and therefore affirm.
• Criminal Law/ Plea Withdrawal/ Judicial Authority-Discretion/ Colloquy
  
  State v. Scott
  Docket: 2007AP001311 09-03-08
  

  PER CURIAM. Steven Dionne Scott appeals from a corrected judgment of conviction for a forcible sexual assault, and from a postconviction order denying his motion for sentence credit. The issue is whether the trial court erroneously exercised its discretion when it summarily denied Scott's motion for presentence plea withdrawal. We conclude that Scott is not entitled to an evidentiary hearing on his plea withdrawal motion because the allegations that arguably constitute a fair and just reason are conclusory or are conclusively belied by the record. Therefore, we affirm.
• Criminal Law/ Pleas/ Constitutional Law/ Plea Withdrawal/ Sentencing/ "Read in Offenses"
  
  State v. Voss
  Docket: 2008AP000379 09-03-08
  

  PER CURIAM. Todd Voss appeals a judgment of conviction, entered upon his no contest plea, for one count of first-degree reckless homicide by delivery of methadone, contrary to WIS. STAT. § 940.02(2)(a). Voss also appeals an order denying his motion for postconviction relief. He asserts there was no factual basis for his plea and, further, it was constitutionally impermissible for the court to consider read-in charges at sentencing absent his admission to those crimes. We conclude the record adequately establishes a factual basis for Voss's plea and the read-ins were appropriately considered. Accordingly, we affirm the judgment and order.
• Criminal Law/ Sentencing/ Judicial Authority-Discretion
  
  State v. Heron
  Docket: 2007AP002318 09-04-08
  

  PER CURIAM. Terrence Heron appeals a judgment convicting him of possessing cocaine with intent to deliver, and carrying a concealed weapon. He also appeals an order denying postconviction relief. The issues are whether the trial court properly exercised its sentencing discretion, and whether the court sentenced him upon inaccurate information. We affirm.
• Criminal Law/ Sentencing/ Judicial Authority-Discretion/ Constitutional Law-Due Process
  
  State v. Trattner
  Docket: 2007AP001124 09-03-08
  

  PER CURIAM. Steve L. Trattner has appealed from a judgment convicting him upon a no contest plea of first-degree reckless homicide in violation of WIS. STAT. § 940.02(1) (2005-06) for the murder of his wife. He was sentenced to thirty-five years of initial confinement and ten years of extended supervision. Trattner has also appealed from an order denying his postconviction motion for resentencing.
• Criminal Law/ Sentencing/ Sentencing Modification
  
  State v. Mosley
  Docket: 2007AP002099 09-03-08
  

  PER CURIAM. Jamel C. Mosley, pro se, appeals from an order denying a motion for sentence modification. We affirm.
• Damages/ Contracts
  
  Espitia v. Fouche
  Docket: 2007AP001963 09-03-08
  

  PER CURIAM. Linda Espitia appeals a money judgment of $12,129.57 entered in her favor and against Gordon Fouche, her former fiancé. Espitia contends that Fouche's admitted default on the parties' mediated agreement entitles her to $25,000 in liquidated damages. We agree with the trial court's analysis and affirm.
• Department of Corrections/ Writ of Habeas Corpus/ Harmless Error
  
  Jacobs v. D.O.C.
  Docket: 2007AP002474 09-04-08
  

  PER CURIAM. This is an appeal from an order granting the Department of Corrections' motion to quash or dismiss Chris Jacobs's petition for a writ of habeas corpus. The trial court explained that it was dismissing the petition because it was not verified, and because Jacobs was in prison pursuant to a final judgment of a court. We agree that Jacobs's petition was not verified. We therefore affirm.
• Family Law/ Divorce/ Property Division/ Marital Estate/ Valuation
  
  Worm v. Worm
  Docket: 2007AP002583 09-04-08
  

  PER CURIAM. Sue Worm appeals from a divorce judgment dividing marital property between Sue and Gerald Worm and from an order denying her motion to reopen and reconsider that judgment. Sue argues that the trial court erred in dividing the marital property according to the appraised values because it resulted in the trial court unequally dividing the marital property without considering the required statutory factors. Sue also argues that the trial court erred in denying her motion to reopen and reconsider the judgment because the trial court relied on false and misleading testimony in dividing the property as it did. We conclude that Sue's arguments lack merit and therefore affirm.
• Family Law/ TPR/ Evidence/ Ineffective Assistance of Counsel/ Best Interest of Child
  
  Sheboygan County D.H.H.S. v. Heather M.
  Docket: 2008AP000230 09-03-08
  

  BROWN, C.J. Heather M. appeals from orders terminating her parental rights to her five year old daughter, Monica, under WIS. STAT. § 48.417(1)(a), and denying post-dispositional relief. Her basic complaint is that the jury should not have heard evidence of physical discipline because the jury's only question was whether she failed to meet Monica's physical and emotional needs. She posits that, since the Department did not charge her with child abuse, such evidence was irrelevant and prejudicial. She passes off her acts as perfectly reasonable "physical discipline." We disagree. Child safety is necessary to meet a child's physical and emotional needs. Thus, evidence of physical discipline and Heather's relationships are relevant to whether Heather is likely to meet that condition. Accordingly, we affirm. We further reject Heather's other claims of unfair prejudice because the evidence did not undermine the outcome.
• Personal Injury/ Damages/ Insurance/ Default Judgment/ Excusable Neglect
  
  Holliday v. Arch Insurance Company
  Docket: 2007AP001038 09-03-08
  Holliday v. Arch Insurance Company
  Docket: 2007AP001038E 09-03-08
  

  FINE, J. Arch Insurance Company appeals a judgment awarding George F. and Colleen Holliday $1,045,918.94 in damages for injuries George Holliday sustained after a school bus owned by Joy Farm Transportation, Inc., hit his bicycle. The circuit court entered a default judgment against Arch after it failed to timely answer the Hollidays' second amended complaint alleging that Arch was an excess insurer for Joy Farm. Arch claims that: (1) default was not warranted because its failure to timely answer was the result of what it asserts was excusable neglect; (2) if Arch did default, the circuit court erred when it precluded Arch from contesting Joy Farm's liability; and (3) there was no evidence to support the circuit court's award of damages for George Holliday's loss of future earning capacity. We affirm.
• Personal Injury/ Safe Place Statute/ Evidence/ Insurance/ Liability/ Verdicts/ New Trial/ Jury Instructions/ Negligence/ "Make Whole Doctrine"/ Damages
  
  Szalacinski v. Campbell
  Docket: 2007AP000667 09-03-08
  Recommended for Publication
  

  CURLEY, P.J. Grand Marquis Inn and its insurer, American Family Insurance (unless otherwise specified, collectively referred to as Grand Marquis), appeal from judgments entered in favor of Patricia and Robert Szalacinski and Leon and Shirley Gonnering, following a jury trial. Grand Marquis challenges the evidence presented at trial, arguing that it failed to establish a violation of Wisconsin's safe-place law. In addition, Grand Marquis argues that no credible evidence was presented that causally connected any hotel defect and the injuries alleged and that the claims against it must be dismissed because the conduct of Grand Marquis was not a proximate cause of those injuries. In the alternative, Grand Marquis asks that a new trial be granted because the jury verdict was contrary to law and to the weight of the evidence and resulted from errors in the special verdict and jury instructions. Lastly, American Family Insurance contends that its cross-claim was fully established, that it was not subject to the made whole doctrine, and that it is entitled to a pro-rata share of funds paid by the insurers of Christopher Campbell and Tameka Lukes.
• Property/ Adverse Possession/ Evidence
  
  Percy v. Herrmann
  Docket: 2006AP002548 09-03-08
  

  PER CURIAM. Harlan and Brenda Herrmann appeal pro se from an order granting summary judgment in favor of Mark and Debbie Percy. The Percys sought a declaration of interest in a parcel of land to which, by counterclaim, the Herrmanns asserted an adverse interest, among other allegations. The circuit court ruled that the Herrmanns' affidavits did not establish at least twenty years' uninterrupted adverse possession, and dismissed the Herrmanns' remaining claims for failure to file supporting affidavits. We affirm.
• Small Claims/ Creditor/ Debtor/ Jurisdiction/ Frivolous Claims
  
  Parkland Plaza Veterinary v. Gerard
  Docket: 2007AP002147 09-03-08
  

  SNYDER, J. Anne Gerard appeals from an order affirming the court commissioner's dismissal with prejudice and on the merits rendered in her favor. That order dismissed a small claims action by which Parkland Plaza Veterinary Clinic SC attempted to collect payment allegedly owed to it by Gerard. Parkland ultimately moved to dismiss with prejudice and the court so ordered. As best we can tell, Gerard contends that the matter should not have been dismissed because arguments she raised before the court commissioner were never satisfactorily addressed. Gerard never conceded that the small claims court had jurisdiction. While maintaining that argument, Gerard also demanded that Parkland comply with her discovery requests. Gerard seeks sanctions against Parkland and the trial court, compensatory damages and costs, and punitive damages from Parkland, Parkland's attorney, and the trial court. We ascertain nothing in the record or from the arguments of the parties that would support such relief. Furthermore, we observe that Gerard obtained a favorable ruling in the circuit court; moreover, nothing in the order is left unresolved or could be interpreted as against Gerard's interest. We affirm the order.
• Statutes/ Forfeiture/ Statutory Construction-Interpretation/ Notice
  
  St. Croix County v. Rushfeldt
  Docket: 2008AP000848 09-03-08
  St. Croix County v. Rushfeldt
  Docket: 2008AP000849 09-03-08
  

  BRUNNER, J. St. Croix County appeals a judgment granting James Rushfeldt's motion to dismiss two forfeiture complaints. The County contends the circuit court erred when it concluded WIS. STAT. § 172.015 required a peace officer to give a contemporaneous removal notice to an owner whose livestock was on a highway. The County argues prior notice may be sufficient to show an owner knowingly permitted livestock to run at large on a highway and failed to remove them. We agree and therefore reverse and remand for further proceedings consistent with this decision.
• Summary Judgment/ Indemnify/ Contracts/ Insurance/ Wrongful Death/ Safe Place Statute
  
  Hunsaker v. F.E.A.P. of Milwaukee
  Docket: 2007AP002342 09-03-08
  

  CURLEY, P.J. Lillibridge Healthcare Services, Inc. (Lillibridge) appeals from a final judgment entered in favor of Covenant Healthcare System, Inc. (Covenant), n/k/a Wheaton Franciscan Services, Inc., after the trial court granted Covenant's motion for summary judgment. On appeal, Lillibridge argues that the trial court erred in granting summary judgment to Covenant because: (1) the trial court incorrectly determined that the Management Agreement of February 12, 2001, required Lillibridge to indemnify Covenant for all claims asserted in the plaintiff's amended complaint; (2) the Management Agreement does not require indemnification for safe-place obligations of the owner of the premises; and (3) any of Lillibridge's obligations pursuant to the Management Agreement are covered by an insurance policy issued to Covenant.
• Wrongful Death/ Negligence/ Evidence/ Statutes
  
  Reid v. Graebner Enterprises, Inc.
  Docket: 2008AP000044 09-04-08
  

  LUNDSTEN, J. Mary Reid appeals a circuit court judgment dismissing her wrongful death action following a jury finding that the defendant, Hospitality Inn, was not negligent in the pool drowning death of Mary's husband, Jordan Reid. We assume, for argument's sake only, that Hospitality Inn was negligent as a matter of law for the reason that Mary asserts, but we conclude that Mary points to no evidence from which a reasonable jury could have found that the alleged negligence caused Jordan's death. Thus, even if Mary is correct regarding negligence, the court would have been required to direct a verdict against Mary, as a matter of law, because the evidence was insufficient to prove causation. Accordingly, we affirm the judgment.