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    Wisconsin Lawyer
    June 04, 2010

    Court of Appeals Digest

    This column summarizes selected published opinions of the Wisconsin Court of Appeals. Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

    Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

    Wisconsin LawyerWisconsin Lawyer
    Vol. 83, No. 6, June 2010

    Criminal Law

    Possession of Child Pornography – Purposely Viewing Digital Images on the Internet

    State v. Mercer, 2010 WI App 47 (filed 31 March 2010) (ordered published 26 April 2010)

    As described by the court of appeals, the issue in this case was “whether individuals who purposely view digital images of child pornography on the Internet, even though the images are not found in the person’s computer hard drive, nonetheless knowingly possess those images in violation of Wis. Stat. § 948.12(1m) (2007-08)” (¶ 1). Section 948.12(1m) provides as follows: “Whoever possesses any undeveloped film, photographic negative, photograph, motion picture, videotape, or other recording of a child engaged in sexually explicit conduct under all of the following circumstances [is guilty of a class D felony]: (a) The person knows that he or she possesses the

    The defendant’s employer installed monitoring software on employees’ work computers. The software tracked the following general information about computer use: the computer being used, which user was logged into that computer at any particular time, the amount of time the computer was used each day, and the program(s) being used. The investigation that resulted in criminal charges against the defendant was launched after the monitoring system issued a series of alerts that suggested a pattern of the defendant surfing the Internet for, among other subjects, pornographic Web sites depicting adults and children. Ultimately the state charged the defendant with 14 violations of the statute cited above, and a jury convicted him on all charges. In an opinion authored by Chief Judge Brown, the court of appeals affirmed the convictions.

    The appellate court concluded that “an individual knowingly possesses child pornography when he or she affirmatively pulls up images of child pornography on the Internet and views those images knowing that they contain child pornography. Whether the proof is hard drive evidence or something else, such as the monitoring software here, should not matter because both capture a ‘videotape’ of the same behavior. And images in either place can be controlled by taking actions like printing or copying the images” (¶ 31).

    In this case, the evidence supporting the verdict tended to show, and the jury could find from it, that the defendant had a habit of surfing the Internet for pornography. As described by the court, “[h]e searched with terms associated with child pornography and looked at images and text stories. And his searches were not an isolated instance. He had searched using those terms on at least fifty different days. He was able to navigate directly to a web portal specific to sex. Moreover, on the day in question, he did not click on a website, see a child pornography image, and exit the website (indicating a mistake) – he clicked to look at a magazine and its images, had the image on his screen until he clicked back, at which point he looked at another magazine and its images and another and another and another. Then he left, did something else, and returned to look at still more magazines and images. And each time he pulled an image from the Internet onto his screen he controlled how long it was displayed on his screen and he had the ability to and knew how to print, save, or copy it. Moreover, the jury heard evidence from which it could infer that [the defendant] deleted the files where the forensic examiners would have found the child pornography stored in his hard drive. We conclude that there was sufficient evidence of knowing possession as a matter of law” (¶ 33) (footnotes omitted).

    Child Enticement – Wis. Stat. section 948.07 – Definition of “Secluded Place”

    State v. Pask, 2010 WI App 53 (filed 31 March 2010) (ordered published 26 April 2010)

    Wisconsin’s law prohibiting child enticement provides as follows: “Whoever, with intent to commit any of the following acts, causes or attempts to cause any child who has not attained the age of 18 years to go into any vehicle, building, room or secluded place is guilty of a Class D felony.” Wis. Stat. § 948.07. The issue before the court of appeals in this case was the meaning of secluded place in this statute. Neither statute nor case law defines the term.

    The defendant argued on appeal that “the definition of ‘secluded place’ must mean … that the defendant in fact ‘removes’ the victim from any view by the public. … [A] ‘secluded place’ is a place without any public protection whatsoever; in other words, only completely screened or hidden places qualify” (¶ 14).

    In a decision authored by Chief Judge Brown, the court of appeals held that nothing in the statute or Wisconsin case law limits the term secluded place to locations that are completely removed from the public, as the defendant contended. The court cited State v. Hanson, 182 Wis. 2d 481, 513 N.W.2d 700 (Ct. App. 1994), in which it explained that the child-enticement statute addresses the “luring and secluding of children” because a secluded place “provides the opportunity, with substantially less risk of detection, for the person to exercise force and control over the child for purposes of sexual gratification” (¶ 15).

    In this case the court concluded that “[r]educing the risk of detection does not require the ‘secluded place’ to be completely removed from the public’s protection…. So in the context of child enticement, a ‘secluded place’ would include any place that provides the enticer an opportunity to remove the child from within the general public’s view to a location where any intended sexual conduct is less likely to be detected by the public” (id.).

    At the trial in this case the jury was instructed that a secluded place is “a place screened or hidden from view or remote from others” (¶ 1). The appellate court found that “a screened or hidden place (partially or completely) would qualify as a ‘secluded place.’ And a place need not even be screened or hidden or remote if some other aspect of the place lowers the likelihood of detection. All the statute requires is that the place provides a means by which to exclude the child and reduce the risk of detection” (¶ 16).

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    Criminal Procedure

    Confessions – Involuntariness

    State v. Reynolds, 2010 WI App 56 (filed 16 March 2010) (ordered published 26 April 2010)

    The defendant was charged with homicide and related felonies after he shot to death a law enforcement officer during the course of a gas station robbery. The circuit court denied Reynolds’s motion to suppress incriminating statements he made during interrogation, and he was convicted.

    The court of appeals affirmed the conviction in an opinion authored by Judge Brennan. The police repeatedly interrogated Reynolds about his involvement in various robberies and later the homicide. Although he suffered from an apparent “panic attack” during one session, during which he had the “dry heaves,” the court nonetheless held his later statements were voluntary. The court rebuffed Reynolds’s argument that a detective’s appeal to his “conscience” rendered his statements involuntary.

    The court cited examples of other more manipulative tactics that had withstood scrutiny under the totality-of-the-circumstances test. “Reynolds did not make an incriminating statement until after being informed of and waiving his Miranda rights. This is not an instance where a defendant chose to exercise a right and was then approached by officers for questioning. Reynolds – an adult with an extensive criminal background, who was literate in the English language, and who had been advised of his rights on at least five different occasion in the seven days leading up to his confession – indicated he understood his Miranda rights and waived those rights before confessing to shooting Agent Balchunas. When we view that fact in combination with Reynolds’ other personal characteristics and the totality of the detectives’ behavior leading up to his confession, we conclude that his confession was voluntary and not the result of coercive police conduct” (¶ 51).

    Confessions – Jailhouse Informants

    State v. Lewis, 2010 WI App 52 (filed 31 March 2010) (ordered published 26 April 2010)

    A jury convicted Lewis of several felonies in connection with an armed robbery that followed a dice game. While in jail awaiting trial, Lewis made incriminating statements to a cellmate, Gray, a federal prisoner who hoped to reduce his own sentence by informing on other inmates. The record revealed that Gray had done this several other times. The circuit court rejected Lewis’s contention that Gray’s conduct on behalf of the prosecution violated Lewis’s Sixth Amendment right to counsel under the Massiah doctrine. See Massiah v. United States, 377 U.S. 201 (1964).

    The court of appeals affirmed in an opinion, authored by Chief Judge Brown, in which the court wrestled with a multifactor test first set forth in United States v. Henry, 447 U.S. 264 (1980). Lewis’s right to counsel had attached, so the issue was whether the government had deliberately elicited an incriminating response through the informant, Gray. “Applying the three-factor test to this case, the third factor, the custody of the defendant is clearly present. So is the second factor, that the informant (Gray) was a fellow inmate. The first factor, however, is not present. Gray was never under the direction or control of the government, and there was no evidence that Gray received instructions from the government about Lewis or anyone else in the Waukesha county jail. Nor was he ever a paid informant” (¶ 20). The court adopted federal law holding that the government’s knowledge that an informant “hopes” to receive a benefit does not create an implicit agreement that is a predicate for a Massiah violation (see ¶ 23). Nor is the government under some duty to segregate such inmates: “Lewis is really contending that the government somehow had an affirmative duty to know Gray’s past history as a jailhouse informant and to keep Gray away from Lewis” (¶ 25).

    Sentencing – Court’s Failure to Consider Sentencing Guidelines

    State v. Barfell, 2010 WI App 61 (filed 10 March 2010) (ordered published 26 April 2010)

    In State v. Grady, 2007 WI 81, 302 Wis. 2d 80, 734 N.W.2d 364, the Wisconsin Supreme Court held that Wis. Stat. section 973.017(2)(a) (2005-06) imposed an obligation on a circuit court at sentencing to consider sentencing guidelines and to indicate on the record that it had fulfilled this obligation. The supreme court mandated that for every sentencing occurring on or after Sept. 1, 2007, the record of the sentencing hearing must demonstrate that the court actually considered the sentencing guidelines.

    In the present case, sentencing occurred on Oct. 3, 2008. However, the circuit court did not consider the sentencing guidelines and did not state on the record it had considered the guidelines. The defendant, Barfell, filed an appeal seeking a resentencing hearing, at which the circuit court would be required to consider the sentencing guidelines. It is significant to note that “[w]hile this appeal was in progress, the Wisconsin legislature completed work on the 2009-10 Biennial Budget and repealed Wis. Stat. § 973.017(2)(a). See 2009 Wis. Act 28, § 3386m (eff. July 1, 2009). This was necessitated by the defunding of the Wisconsin Sentencing Commission in the 2007-08 Biennial Budget” (¶ 4).

    In a decision authored by Judge Anderson, the court of appeals concluded that the defendant is not entitled to relief under the theories he advanced in this litigation. Among his arguments, the defendant contended that the repeal of section 973.017(2)(a) does not render its application moot for a sentencing that occurred before the effective date of the budget bill and that the repeal should not apply retroactively. The court of appeals disagreed.

    “The retroactive application of the repeal of the statute is compelled by the abolition of the sentencing commission in the 2007-08 Biennial Budget, effective October 29, 2007, almost one year before Barfell was sentenced. By the time Barfell appeared for sentencing, there was no sentencing commission in existence to adopt sentencing guidelines. It was impossible for the sentencing court to carry out its obligation under Wis. Stat. § 973.017(2)(a), to consider the ‘sentencing guidelines adopted by the sentencing commission.’ Because the commission had been defunded, the sentencing guidelines were outdated when Barfell was sentenced. Without sentencing guidelines, now it is impossible to order Barfell resentenced and to have the sentencing guidelines considered. Nothing we order can have any practical legal effect. Therefore, the issue is moot” (¶ 9).

    The appellate court further held that “[t]he ex post facto clause of the federal and state constitution and Wis. Stat. § 990.04 do not afford Barfell any relief since they do not apply to the repeal of a procedural statute” (¶ 14).

    Intrastate Detainer Act – Failure to Comply with Time Requirements Subject to Guilty-plea-waiver Rule

    State v. Asmus, 2010 WI App 48 (filed 23 March 2010) (ordered published 26 April 2010)

    The defendant was convicted after pleading guilty to two counts of identity theft. On appeal, she argued that the circuit court should have dismissed the complaints because the state failed to bring her to trial within 120 days after she made a request, pursuant to the Intrastate Detainer Act, for a prompt disposition of the case. See Wis. Stat. § 971.11.

    In a decision authored by Judge Hoover, the court of appeals affirmed. It concluded that the defendant waived the issue by pleading guilty (see ¶ 1). “A guilty plea constitutes a waiver of all nonjurisdictional defects and defenses. State v. Kelty, 2006 WI 101, ¶18, 294 Wis. 2d 62, 716 N.W.2d 886. This rule applies even though the defendant attempts to preserve an issue by raising it in the circuit court. State v. Skanfer, 176 Wis. 2d 304, 312 n.2, 500 N.W.2d 369 (Ct. App. 1993)” (¶ 3). The court of appeals concluded that “[f]ailure to bring a prisoner to trial within 120 days under the Intrastate Detainer Act is not a jurisdictional defect” (¶ 4). Therefore it is subject to the guilty-plea-waiver rule.

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    Employment Law

    Work Injuries – Rehiring

    deBoer Transp. Inc. v. Swenson, 2010 WI App 54 (filed 25 March 2010) (ordered published 26 April 2010)

    Swenson missed several months of work as a truck driver for deBoer Transportation after injuring his knee while on the job. deBoer required Swenson to participate in a reorientation program for drivers who had missed a lot of work. Part of the program was a “check-ride,” which would have compelled Swenson to be away from home for a night. Swenson refused to do the check-ride after deBoer declined to accommodate Swenson’s need to care for his terminally ill father. Swenson was not rehired. He filed a complaint with the Labor and Industry Review Commission (LIRC), which ruled that accommodating Swenson would not have compromised safety or been a financial burden. The circuit court affirmed LIRC.

    The court of appeals reversed in an opinion written by Judge Lundsten. The court agreed with deBoer that the commission erroneously demanded more than a “reasonable cause” for its refusal to rehire Swenson. “[T]here is no evidence that deBoer singled out Swenson in applying its check-ride policy. In addition, it is undisputed that deBoer’s longstanding practice was based on deBoer’s belief that the check-ride is a means of ensuring safe driving and that, as a general matter, having safe drivers is a legitimate business concern for deBoer. And, there is no evidence that deBoer’s refusal to accommodate Swenson had anything to do with Swenson’s injury. To the contrary, the evidence discloses that deBoer was in the process of rehiring Swenson and had taken several steps toward that end. So far as the evidence shows, the only reason Swenson was not rehired was because he did not participate in the check-ride. When deBoer declined to accommodate Swenson by tailoring a check-ride to meet Swenson’s needs or by paying Swenson’s additional care expenses, and when Swenson refused to incur the expense of paying for care for his father while he was away on the check-ride, the result was that Swenson was not rehired” (¶13).

    The court held “that the reasonable cause standard in Wis. Stat. § 102.35(3) does not contemplate requiring employers to either deviate from a facially reasonable and uniformly applied policy, or explain why it would be burdensome to do so, when a returning employee requests the deviation to accommodate a non-work and non-injury-related personal need. The policy here was facially reasonable because the policy furthers deBoer’s interest in employing safe drivers. To hold otherwise would place an unreasonable burden on employers” (¶ 14). Moreover, the legislature did not impose on employers the burden of judging which nonwork, noninjury-related requests need to be accommodated if reasonably possible (see ¶ 15).

    In sum, “the commission erred by determining that deBoer failed to show reasonable cause. Reasonable cause is shown here by deBoer’s uniform application of its longstanding safety testing procedure to Swenson, combined with the absence of evidence supporting an inference that deBoer refused to rehire Swenson because of his injury. Stated differently, under the facts in this case, there is no basis for the conclusion that deBoer did not have reasonable cause to require Swenson to participate in the check-ride and, therefore, no basis for the conclusion that ‘reasonable cause’ was lacking” (¶ 17).

    In dissent, Judge Dykman took issue with the majority’s use of “deBoer’s uniform and long-standing practice” as part of the court’s interpretation of “reasonable cause” under the statute (¶ 21).

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    Lemon Law

    Vehicle Dealers – Affirmative Misrepresentations

    Goudy v. Yamaha Motor Corp., 2010 WI App 55 (filed 24 March 2010) (ordered published 26 April 2010)

    Goudy purchased a Yamaha motorcycle that was substantially modified by the dealer. Goudy had many problems with the motorcycle and later filed this lawsuit against Yamaha and the dealer, Winnebagoland, asserting lemon law violations and other claims. The circuit court granted summary judgment in favor of Yamaha and the dealer.

    The court of appeals affirmed in part and reversed in part in a decision written by Judge Neubauer. The court affirmed the dismissal of the lemon law and warranty claims against Yamaha and the dealer in a fact-intensive discussion. For example, Yamaha escaped liability because the dealer installed “nonstock” parts and accessories (see ¶ 16), and the dealer eluded liability because it was not a manufacturer as that term is defined under the lemon law (see ¶ 19).

    Goudy fared better in his claim under the Deceptive Trade Practices Act (Wis. Stat. § 100.18), which prohibits sellers from making deceptive, false, or misleading representations to buyers (see ¶ 23). The court rejected Goudy’s claim that Winnebagoland violated section 100.18 by failing to mention that its modifications might limit or void Yamaha’s warranty; case law precluded the argument that a “nondisclosure” is an assertion or statement of fact under the statute. Nonetheless, there was a disputed issue of material fact about whether the dealer affirmatively represented that the warranty covered the oft-dysfunctional motorcycle. “[W]hile Winnebagoland contends that the Purchase Contract is correct in that Goudy did purchase an 04 Yamaha XVS11S which was covered by a New Vehicle Manufacturer Warranty, a material issue of fact remains as to whether the modifications made by Winnebagoland so altered the motorcycle as to render these underlying ‘truths’ meaningless for purposes of warranty coverage” (¶ 28).

    Motor Vehicle Law

    Failure to Dim Headlights – Wis. Stat. section 347.12 (1)(b) – Elements of Offense

    State v. Tomaszewski, 2010 WI App 51 (filed 23 March 2010) (ordered published 26 April 2010)

    The defendant was arrested for operating while intoxicated based on evidence gathered during a traffic stop for a violation of Wis. Stat. section 347.12(1)(b), which provides as follows: “Whenever the operator of a vehicle equipped with multiple-beam headlamps approaches or follows another vehicle within 500 feet to the rear, the operator shall dim, depress, or tilt the vehicle’s headlights so that the glaring rays are not reflected into the eyes of the operator of the other vehicle.” According to testimony at the suppression hearing, the officer observed a vehicle driven by the defendant following closely behind a semi truck. The defendant’s high-beam headlights were on, and the officer estimated that 400 feet separated the defendant’s vehicle and the truck. The defendant passed the semi, dimming his lights only as he approached the semi’s passenger compartment. The officer then stopped the defendant.

    The circuit court concluded that on these facts the officer was justified in conducting the traffic stop. On appeal, the defendant argued that there was no evidence that the glaring rays of his vehicle’s high beams reflected into the eyes of the semi truck driver. Moreover, he asserted no such evidence could be produced because a semi truck lacks a rear windshield through which the lights could shine. The state responded that no such evidence was necessary because the statutory language “so that the glaring rays are not reflected into the eyes of the operator of the other vehicle” merely describes the purpose of requiring dimmed headlights and does not create an element of the offense (¶ 8).

    In a decision authored by Judge Brunner, the court of appeals affirmed. It concluded that “Wis. Stat. § 347.12(1)(b) does not require proof that the headlights reflected into the eyes of another driver. The statute directs drivers operating within 500 feet to dim their headlights, and concludes by describing the purpose of this requirement: to prevent the glaring rays from reflecting into another driver’s eyes. [The defendant’s] interpretation would require an ordinary driver using high beams to know whether his or her headlights will impair another driver’s vision. This interpretation is absurd; drivers are in no position to determine whether their vehicle’s high beams glare into the eyes of other drivers. To avoid this problem, the statute assumes the use of high beams within 500 feet will cause impairment, and prohibits their use” (¶ 10).

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    Sexually Violent Persons Law

    Supervised Release – Burden of Proof

    State v. Rachel, 2010 WI App 60 (filed 24 March 2010) (ordered published 26 April 2010)

    Rachel was ordered committed as a sexually violent person under Wis. Stat. chapter 980 in 1999. A circuit court denied his petition for supervised release in what was a “close call.”

    The court of appeals affirmed in an opinion authored by Judge Snyder. First, the court held that under the 2005 revisions to chapter 980, the legislature shifted the burden of proof regarding supervised release from the state to the petitioner. “The criteria that are to be affirmatively demonstrated include: a showing of ‘significant progress in treatment,’ a substantial probability that the petitioner will not re-offend while in the community, ‘reasonably available’ treatment options in the community, a reasonable expectation that the petitioner will comply with treatment requirements, and a ‘reasonable level of resources’ will provide for ongoing treatment needs and ‘safe management’ of the petitioner while on supervised release. See Wis. Stat. § 980.08(4)(cg). It would be impractical, if not absurd, to place the burden on the State to demonstrate factors weighing in favor of release because the State has no incentive to do so” (¶ 12). The court also upheld the constitutionality of shifting the burden of proof to the petitioner (see ¶ 16).

    Second, the court held that a petitioner’s burden is to establish his or her suitability for supervised release by clear and convincing evidence, not a simple preponderance of the evidence. This higher burden, the court explained, is driven by the need for “public safety” (see ¶ 18).

    Finally, the court found that sufficient evidence supported the circuit court’s determination. Although the trial judge chided the state for making matters more complicated for Rachel through “illusive” standards, Rachel ultimately failed to establish three of five criteria. “The court indicated that Rachel had more work to do in ‘Phase Three’ of his treatment, that a more ‘specific and definable’ supervision plan was needed, and that the court required a ‘more definite manner of treatment that would assist [the] Court in knowing that there’s not a substantial probability that Mr. Rachel would engage in sexual violence if he were on supervised release’” (¶ 29).

    Minimum Wage – Due Process

    State ex rel. Tran v. Speech, 2010 WI App 58 (filed 31 March 2010) (ordered published 26 April 2010)

    Tran and Fankhauser, both of whom are “patients” at the Wisconsin Resource Center (WRC) under chapter 980 commitments, challenged the decision by the WRC warden to reduce wage rates for patients to below the minimum wage. The circuit court rejected their pro se claims and demands for a writ of certiorari.

    The court of appeals affirmed in an opinion authored by Judge Anderson. Federal case law establishes that persons civilly committed under chapter 980 are not covered by the Fair Labor Standards Act (see ¶ 15). “This interpretation of the federal law matches our understanding of Wisconsin law. Just as persons civilly committed because they were sexually violent are not intended to be and are not employees under the federal law, they are not intended to be and are not employees under Wis. Stat. ch. 104, Wisconsin’s minimum wage law” (¶ 16). Nor could the court “fathom” why the petitioners thought that Wis. Stat. section 51.61(1)(b) supported their claims. “[T]he history of the statute’s original language and its amended and current language discloses conscious legislative intent to initially require that patients covered by § 51.61 be paid at minimum wage levels – reflecting an assumption that Wis. Stat. ch. 104 did not apply to labor by those patients – and later to eliminate any directive that a patient covered by § 51.61 be paid at minimum wage levels” (¶ 20). Finally, the petitioners failed to show any protected liberty or property interest necessary for a substantive-due-process claim.  

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