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    Wisconsin Lawyer
    October 01, 2016

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel D. Blinka & Thomas J. Hammer

    Criminal Law

    Habitual Criminality – Previous Convictions – Five-Year Lookback Rule

    State v. Cooper, 2016 WI App 63 (filed 27 July 2016) (ordered published 31 Aug. 2016)

    HOLDING: The circuit court correctly determined for purposes of the habitual offender statute that the defendant had a prior felony conviction within the five-year lookback window preceding the commission of his present offense; time spent in actual confinement serving a sentence for a prior operating while intoxicated (OWI) conviction was properly excluded in calculating the lookback window.

    SUMMARY: This case concerns Wisconsin's habitual offender (repeater) statute. See Wis. Stat. § 939.62. Under this statute a defendant faces enhanced penalties if he or she was convicted of one felony or three misdemeanors during the five-year period (lookback period) immediately preceding the commission of the present crime. For purposes of this statute the prior felony or misdemeanors do not include motor vehicle offenses codified in the Motor Vehicle Code. In computing the five-year lookback period, "time which the actor spent in actual confinement serving a criminal sentence shall be excluded." Wis. Stat. § 939.62(2).

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    In this case the defendant's present crime (an OWI-sixth offense) was committed in 2013. He had a felony drug conviction in 2004. The circuit court determined that the 2004 conviction was within the five-year lookback from the new 2013 crime; in reaching this conclusion, the court excluded time during which the defendant was in confinement serving various sentences, including 365 days he was confined for an OWI-fifth offense. Having concluded that the defendant was a "habitual criminal," the circuit court sentenced him to the maximum term of imprisonment for the OWI-sixth offense and enhanced that sentence by an additional four years for the habitual criminality.

    On appeal, the defendant claimed that the circuit court erred in excluding the 365 days spent in confinement for the OWI-fifth offense when calculating the five-year lookback period because the prior OWI is a motor vehicle offense. If he is correct, the 2004 prior drug felony would fall outside the lookback period.

    In an opinion authored by Judge Gundrum, the court of appeals affirmed. It concluded that the special definitions of "felony" and "misdemeanor" in the repeater statute, which preclude counting prior motor vehicle offenses when determining whether a defendant's criminal record qualifies the defendant for habitual-criminal status, have no bearing when determining the five-year lookback and excluding from that calculation "time" a defendant "spent in confinement" on a "criminal sentence." The latter computation is made "without any regard to the type of offense underlying that time" (¶ 9).

    For this reason, the appellate court concluded that "in computing the five-year period at issue, the circuit court properly excluded the 365 days Cooper was confined on his OWI fifth conviction" (¶ 13).

    Criminal Procedure

    Traffic Stops – Consent to Search – Extension of Stop

    State v. Floyd, 2016 WI App 64 (filed 6 July 2016) (ordered published 31 Aug. 2016)

    HOLDING: A deputy sheriff was lawfully detaining defendant Floyd when he asked Floyd for permission to search his person and Floyd voluntarily consented to the search; accordingly, the circuit court did not err in denying Floyd's motion to suppress physical evidence obtained during a search of his person.

    SUMMARY: Defendant Floyd appealed his judgment of conviction, arguing the circuit court erred in denying his motion to suppress evidence of illegal drugs discovered on him during a traffic stop. He contended inter alia that the arresting deputy unlawfully 1) extended the stop beyond the time necessary to issue various citations and 2) searched Floyd's person without his voluntary consent.

    Around 6:45 p.m. on the day in question, a deputy sheriff stopped Floyd's vehicle because the registration was suspended. During the deputy's two-to-three-minute initial contact with Floyd, Floyd said he had neither a driver's license nor insurance but did have a Wisconsin identification card. During this initial contact, the deputy also observed air fresheners in every vent of the vehicle as well as hanging off the rear-view mirror.

    Based on his six years of training and experience as a law enforcement officer, the deputy suspected "there might be some criminal activity going on in the vehicle" because "[u]sually the air fresheners or the amount of them are – is an agent that is used to mask the smell of narcotics" (¶ 3). The deputy knew the area of the stop to be a "high crime area" with "large quantities" of drug and gang activity and further suspected possible criminal activity because, among other things, the windows of Floyd's vehicle were tinted.

    After observing the air fresheners, the deputy returned to his squad and prepared three citations for Floyd related to the suspended registration and lack of insurance and a driver's license and contacted dispatch to request a canine unit or alternatively a "cover" squad. No canine unit was available, but another officer was sent to the scene. After approximately five or six minutes, the deputy reinitiated contact with Floyd. Still in possession of the three citations and Floyd's identification card, the deputy asked Floyd to exit the vehicle, which Floyd did, so that the deputy could explain the citations to him. According to the deputy, at that point Floyd was "not free to leave" because the deputy still had to explain the citations to him and return his identification.

    The deputy confirmed at the hearing that he could have explained the citations to Floyd while Floyd remained seated in the vehicle; however, he asked Floyd to exit the vehicle "to make sure that he did not drive away." As Floyd got out of the car, the deputy asked him if he had "any weapons or anything on him that could hurt" the deputy, to which Floyd responded that he did not. The deputy "asked him then if I could search him for my safety and he said yes, go ahead" (¶ 6).

    During the search, the deputy located illegal drugs that led to the charges in this case. The circuit court denied Floyd's motion to suppress the drugs.

    In a majority opinion authored by Judge Gundrum, the court of appeals affirmed. First, the court concluded that the traffic stop had not been "extended" when the request to search was made.

    "At the time the deputy asked Floyd for permission to search him, Floyd was still lawfully detained pursuant to his violations for operating a motor vehicle with a suspended registration and without a driver's license or insurance. That part of this traffic stop had not concluded in that the deputy had yet to return Floyd's identification to him and issue and explain the three citations. The deputy properly could have explained the citations to Floyd either while Floyd was still seated in the vehicle or after asking Floyd to exit it. The deputy chose the latter" (¶ 11).
    Next, the court concluded that even if the stop were extended, the extension was lawful "because the deputy reasonably suspected criminal drug-related activity" (¶ 13). Calling the question of reasonable suspicion in this case "a very close call," the court held that, based on the facts and circumstances described above, "the deputy's suspicion 'there might be some criminal activity going on in the vehicle' was reasonable and warranted a brief extension of the traffic stop for further investigation" (¶ 16).

    "In sum, at the time the deputy asked Floyd if he could search his person, the deputy had lawfully asked him to step from the vehicle and was lawfully detaining him on two independent grounds: (1) the traffic stop related to the registration, driver's license, and insurance violations was still properly ongoing and (2) the deputy had reasonable suspicion illegal drug activity might well be afoot" (¶ 17).

    Lastly, the court concluded that Floyd voluntarily consented to the search of his person. There is no suggestion the deputy used misrepresentation, deception, or trickery to persuade Floyd to consent to the search of his person. Nor would a reasonable person in Floyd's position have felt threatened or physically intimidated: only the backup officer joined the deputy at the scene, serving as "cover" for the deputy; there is no evidence that either officer drew a weapon or threatened Floyd in any way; Floyd was not handcuffed at the time of the search request; and the traffic stop was performed during the early evening in July, when it would have been light outside, with both pedestrian and vehicular traffic in the area.

    The circuit court found the deputy did not delay in preparing the citations. When the deputy asked Floyd if he could search Floyd for the deputy's safety, Floyd responded, "yes, go ahead," which suggests the atmosphere surrounding the encounter between the deputy and Floyd was not hostile at the time of the deputy's search request.

    While there is no evidence the deputy specifically informed Floyd he could withhold his consent to the search, there is also no evidence suggesting Floyd's physical or emotional condition was such that he was not able to either freely assent to or refuse the search. There is no evidence in the record that Floyd was under the influence of an intoxicant or did not understand the deputy's request to search him.

    "We conclude the totality of the circumstances were such that Floyd would have felt free to decline the deputy's request to search his person; yet, he did not. His consent to the search was voluntary" (¶ 19).

    Accordingly, because the deputy was lawfully detaining Floyd when he asked Floyd for permission to search his person and Floyd voluntarily consented to the search, the circuit court did not err in denying Floyd's motion to suppress (see ¶ 20).

    Judge Reilly filed a concurring opinion.


    Text Messages – Shiffra Hearing

    State v. Giacomantonio, 2016 WI App 62 (filed 12 July 2016) (ordered published 31 Aug. 2016)

    HOLDING: In a child-sexual-abuse prosecution, text messages on the victim's phone were properly admitted over objections on grounds of authentication, hearsay, and original writings; the circuit court properly refused to conduct a Shiffra hearing.

    SUMMARY: A jury convicted the defendant for sexually exploiting a child but acquitted him of incest with child by step-parent. The circuit court refused to conduct an in camera review of the victim's mental-health records under the Shiffra doctrine (see State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993)) and also admitted key evidence of text messages found on the victim's cell phone. The court of appeals affirmed in an opinion authored by Judge Brennan.

    The victim's mother gave the victim's cell phone to police after starting to suspect that abuse had occurred. Police officers took photos of incriminating text messages from the defendant, which were introduced at trial over objection. The appellate court held that the texts were properly admitted.

    First, circumstantial evidence adequately supported the texts' authenticity. The opinion features an excellent discussion of the authentication standard, including out-of-state authority (see ¶ 26). Second, the texts' admissibility also complied with the original writings ("best evidence") rule, whether they are deemed "originals" or "duplicates" (¶¶ 30-31).

    Third, the screen shots, when read in court by the police officer, were admissible under the hearsay rule ("the detective's reading of them was nothing more than merely reading a document") (¶ 35). Finally, any error in their admission was harmless.

    Turning to the Shiffra issue, the court held that the trial judge appropriately refused to conduct an in camera examination of the victim's mental-health records. The defendant fell "far short of the threshold requirements" that justify such a hearing (¶ 47).

    Expert Medical Testimony – Reliability

    Bayer v. Dobbins, 2016 WI App 65 (filed 6 July 2016) (ordered published 31 Aug. 2016)

    HOLDING: In a medical malpractice case, the circuit court erred when it excluded proffered expert medical testimony by the defense regarding the cause of a child's injuries during birth.

    SUMMARY: The plaintiffs brought this medical malpractice action against a doctor when their daughter, Unity, suffered a permanent right brachial plexus (shoulder) injury during birth. They alleged that the doctor's reaction to Unity's shoulder dystocia, an "obstetrical emergency," caused the injuries. The defense contended that Unity's injury was caused instead by "maternal forces of labor" during birth. The circuit court granted the plaintiffs' motion to exclude any expert medical testimony regarding maternal forces of labor, finding it insufficiently reliable under Wis. Stat. section 907.02. The defense brought this interlocutory appeal.

    The court of appeals reversed in an opinion, authored by Judge Stark, that held that the circuit court erroneously exercised its discretion in excluding the maternal-forces-of-labor testimony. The failure stemmed from drawing distinctions unsupported by scientific authority (see ¶ 23) and by ignoring other research that supported the theory (see ¶¶ 24, 25.) Case law from other jurisdictions with rules identical to Wis. Stat. section 907.02 have admitted evidence of the maternal forces of labor (see ¶ 31). Wisconsin case law also supports the admissibility of conflicting expert testimony.

    "Ultimately, this is a case in which opinion in the relevant scientific field is divided regarding whether maternal forces of labor can cause permanent brachial plexus injuries. However,

    '[t]he mere fact that some experts may disagree about the reliability of [the maternal forces theory] does not mean that testimony about [that theory] violates the Daubert standard…. If experts are in disagreement, it is not for the court to decide which of several competent theories has the provenance'" (¶ 36) (internal quotations omitted). The accuracy of those views is for the jury.


    Car Auctions – "Agents"

    Romero v. West Bend Mut. Ins. Co., 2016 WI App 59 (filed 13 July 2016) (ordered published 31 Aug. 2016)

    HOLDING: A driver employed by one auto auctioneer was not acting as the agent of another auto auctioneer, who owned the vehicle the driver was in when the accident that seriously injured the plaintiffs occurred.

    SUMMARY: Fairview is a corporation that buys vehicles at auction and sells them at other auctions. Fairview owned a Ford Explorer that it arranged to sell at an auto auction run by Badger State Auto Auction Inc. (BSAA). Fairview was insured by Addison Insurance and BSAA by West Bend Mutual Insurance Co. While driving the Ford Explorer at the BSAA auction, a BSAA employee struck and seriously injured several people.

    In the ensuing litigation, West Bend paid a settlement and acquired BSAA's rights under Fairview's policy with Addison. West Bend cross-claimed against Addison, asserting that the BSAA employee was also an "agent" of Fairview covered by the Addison policy. The circuit court granted summary judgment in favor of West Bend, also finding that Addison's policy was primary.

    The court of appeals reversed in an opinion authored by Judge Hagedorn. The court closely parsed the policy language, including later policy revisions, in light of statutes that govern insurers' restrictions on coverage (see ¶ 29). Once it isolated the policy's pertinent coverage language, the court held that the BSAA driver was not an "agent" of Fairview (¶ 34).

    "While the term 'agent' may be ambiguous in certain statutes or contracts, it nevertheless contains enough definitional content to exclude certain persons who are clearly not agents. Agency – in the context of Wis. Stat. § 632.32 on which [the policy language] is based – has a sufficiently clear common law meaning and application" (¶ 37). Wisconsin case law has "accepted and applied" the definition of agency found in the Restatement (Second) of Agency (1958). The "most-important factor" is the "extent of the control retained over the details of the work" by the putative agent (¶ 38). The driver "was employed by BSAA to drive vehicles subject to BSAA's control" (¶ 44). Fairview had no voice in these activities.

    Motor Vehicle Law

    Causing Death by Knowingly Operating a Vehicle After Revocation of the Operating Privilege – Defendant Properly Convicted of Class H Felony

    State v. Lazo Villamil, 2016 WI App 61 (filed 20 July 2016) (ordered published 31 Aug. 2016)

    HOLDING: The defendant was properly convicted of a Class H felony for causing death while knowingly operating a vehicle after the revocation of his operating privilege.

    SUMMARY: On Oct. 30, 2012, defendant Lazo Villamil's vehicle collided with the rear end of another vehicle, killing the operator of that vehicle. The defendant's operating privilege was revoked at the time, and he was charged with, and ultimately pleaded guilty to, one count of violating Wis. Stat. section 343.44(1)(b) (2009-10) and (2)(ar)4 (eff. Mar. 1, 2012) for causing the death of another person while operating after revocation (OAR), a Class H felony.

    In the course of his plea, Lazo Villamil admitted that when he operated the vehicle, he knew his license was revoked. The circuit court sentenced him to the maximum penalty of three years of initial confinement followed by three years of extended supervision.

    On appeal, the defendant argued that the statutory provisions cited above are ambiguous as to whether he should have been convicted of and sentenced for a misdemeanor or a felony, and therefore, under the rule of lenity, he should be convicted of and sentenced on a misdemeanor. He further contended that the statutory scheme is unconstitutional on due-process and equal-protection grounds because it does not provide fair notice of the conduct that is prohibited or adequate standards for when a defendant should be prosecuted and adjudicated for a misdemeanor or a felony. Lastly, he asserted that he is entitled to resentencing because the court failed to consider specific factors enumerated in Wis. Stat. section 343.44(2)(b) when it sentenced him.

    In a decision authored by Judge Gundrum, the court of appeals affirmed in part and reversed in part.

    Section 343.44(1)(b) provides that no person whose operating privilege has been duly revoked may "knowingly operate a motor vehicle upon any highway in this state during the period of revocation." Under Wis. Stat. section 343.44(2)(ar)4. (eff. March 1, 2012) the penalty for OAR causing death is specified as follows: "Any person who violates sub. (1)(b) and, in the course of the violation, causes the death of another person shall be fined not less than $7,500 nor more than $10,000 or imprisoned for not more than one year in the county jail or both, except that, if the person knows at the time of the violation that his or her operating privilege has been revoked, the person is guilty of a Class H felony" (emphasis added by court). 

    The defendant argued that Wis. Stat. section 343.44(2)(ar)4. establishes a misdemeanor for causing death while driving OAR but then establishes the same offense as a felony "if" the violator "knows" at the time of the violation "that his or her operating privilege has been revoked."

    Said the court, "The problem is that this 'knowledge' distinction is ultimately illusory because a person cannot violate the misdemeanor provision unless he or she 'knows' his/her license has been revoked because the underlying OAR offense – 'sub. (1)(b)' – requires such knowledge. See § 343.44(1)(b); see also WIS JI—CRIMINAL 2621. Thus, both the misdemeanor and felony offenses require knowledge by the offender that his/her license has been revoked and essentially have the same elements" (¶ 6).

    Because either the felony or misdemeanor provision could apply to the defendant's conduct, the defendant urged application of the rule of lenity and contended that he should only be convicted of a misdemeanor. The appellate court declined to apply the rule of lenity because it was able to resolve the statutory ambiguity by resort to the legislative history of Wis. Stat. section 343.44(2)(ar)4. (see ¶ 8).

    That history "shows the legislature's intent to treat an OAR causing death offense as a misdemeanor if the operator did not know his/her license had been revoked and as a Class H felony if the operator knew. The legislature, however, failed to remove the 'knowledge' element from the misdemeanor language of §§ 343.44(1)(b)/343.44(2)(ar)4., and thus failed to accomplish the first part of this intent. Nonetheless, in a situation like that now before us, where Lazo Villamil caused the death of another and knew his license had been revoked, the legislative history shows, and Lazo Villamil acknowledges, the legislature intended to treat such an offense as a Class H felony" (¶ 12).

    The court of appeals also rejected the defendant's argument that the statutory scheme described above violates due process and equal protection. "He contends this is so because these statutory provisions do not provide fair notice of the conduct that is prohibited or adequate standards for when a defendant should be prosecuted and adjudicated for a misdemeanor or a felony" (¶ 14).

    However, overlapping criminal statutes with different penalty schemes do not violate constitutional principles unless the prosecutor selectively bases the charging decision on an unjustifiable standard such as race, religion, or other arbitrary classification. See United States v. Batchelder, 442 U.S. 114 (1979). The defendant did not allege any improper basis for the prosecutor's decision to charge him with a felony rather than a misdemeanor offense in this case (see ¶ 18).

    The court of appeals also rejected the defendant's claim that the statutes in question are void due to vagueness. "[W]e conclude the provisions at issue here are not unconstitutionally vague. There is no question what conduct is prohibited or what standard must be applied by prosecutors and courts" (¶ 19).

    The appellate court did, however, reverse and remand the case for resentencing. The record fails to show that the circuit court considered statutorily specified OAR sentencing factors as required by Wis. Stat. section 343.44(2)(b).

    "[W]e conclude that the record of the sentencing hearing must demonstrate that the court actually considered the factors specifically enumerated in § 343.44(2)(b)" (¶ 28) (internal citation and quotations omitted). "A court erroneously exercises its sentencing discretion when it fails to consider factors it is required by statute to consider" (¶ 29).

    Real Property

    Partition Action – Apportionment – Use and Occupancy Offsets

    Johnson v. Johnson, 2016 WI App 60 (filed 6 July 2016) (filed 31 Aug. 2016)

    HOLDING: When apportioning proceeds in a partition action, the circuit court erred in granting an offset for "rent-free living by a cotenant."

    SUMMARY: Parents quitclaimed their residence to their five children in 1999, retaining a life estate in the property. The mother moved to a nursing home and the father died in 2013. Three of the children filed this partition action, which named their brother Kevin as a defendant. Kevin had lived in the house "rent free" with his mother's permission. When calculating the apportionment of the proceeds, the circuit court assessed against Kevin a $4,800 contribution for rent, which it distributed to his siblings.

    The court of appeals reversed in an opinion authored by Judge Seidl. Carefully reviewing Wisconsin law, the court distinguished several cases that had required a cotenant in possession to reimburse cotenants for the value of use and possession of premises under very different circumstances (see ¶ 22).

    "[T]here is a presumption that rent-free living by a cotenant in an owned property is equitable. The long-standing rule in Wisconsin, adopted from the majority of jurisdictions, is essentially that, absent other pertinent factors, a cotenant owner is not liable for rent to fellow cotenants who have neither been excluded from the premises nor demanded rent" (¶ 24). Thus, the offset was in error.

    Worker's Compensation

    Definition of "Employer" – Meaning of One "Who Usually Employs 3 or More Employees"

    Noyce v. Aggressive Metals Inc., 2016 WI App 58 (filed 28 July 2016) (ordered published 31 Aug. 2016)

    HOLDING: Defendant Aggressive Metals Inc. was not an "employer" within the meaning of the Worker's Compensation Act when plaintiff Noyce suffered a workplace injury.

    SUMMARY: On or about Dec. 27, 2010, Noyce approached the owners of Aggressive Metals seeking employment. The sole employees of Aggressive Metals at that time were the owners Neil and Nick Holland, who had been working together for Aggressive Metals since shortly after Neil started the company in February 2010. Aggressive Metals offered Noyce one week's work helping install insulation in the building in which Aggressive Metals was housed.

    On his last day of work, Jan. 4, 2011, Noyce sustained substantial injuries while working for Aggressive Metals when he fell through a ceiling. Aggressive Metals did not have worker's compensation coverage when the injuries occurred. After an investigation, the Department of Workforce Development Uninsured Employer's Fund (the Fund) determined that Aggressive Metals was subject to the Worker's Compensation Act (the Act) and provided temporary disability benefits and medical expenses to Noyce related to his injuries.

    The Labor and Industry Review Commission (LIRC) concluded that Aggressive Metals is not liable to Noyce or to the Fund for any compensation or reimbursement for Noyce's injuries because Aggressive Metals was not subject to the Act under Wis. Stat. section 102.04 on the date of Noyce's injuries. The circuit court affirmed LIRC's decision. In an opinion authored by Judge Higginbotham, the court of appeals also affirmed.

    Under Wis. Stat. section 102.04(1)(b), an employer is defined, in pertinent part, as: "1. Every person who usually employs 3 or more employees for services performed in this state, whether in one or more trades, businesses, professions, or occupations, and whether in one or more locations. 2. Every person who usually employs less than 3 employees, provided the person has paid wages of $500 or more in any calendar quarter for services performed in this state. Such employer shall become subject on the 10th day of the month next succeeding such quarter" (¶ 13).

    It was undisputed that Aggressive Metals became an employer, as defined by Wis. Stat. section 102.04(1)(b)2., on Jan. 10, 2011. Pursuant to that subdivision, Aggressive Metals became an employer because it paid its employees more than $500 in the last quarter of 2010, and thus, under the language of the subdivision, became an employer "on the 10th day of the month next succeeding such quarter" (¶ 14).

    Whether Aggressive Metals was an employer six days earlier, on Jan. 4, 2011, the day that Noyce suffered his injuries, required the court to interpret and apply Wis. Stat. section 102.04(1)(b)1., specifically the clause, "who usually employs 3 or more employees."

    The statute does not define the term "usually." Relying on dictionary definitions of the term, the court concluded that an employer is a person "who [ordinarily, customarily, or habitually] employs 3 or more employees" or "who [more often than not] employs 3 or more employees" (¶ 15). Applying this definition, Aggressive Metals was not an employer within the meaning of Wis. Stat. section 102.04(1)(b)1. when Noyce was injured.

    "It is undisputed that Noyce was offered limited, short-term work as Aggressive Metals' third employee, and that Aggressive Metals had been operating with no more than two employees since the company started approximately ten months earlier. Noyce points to no evidence that Aggressive Metals employed three or more employees at any time prior to hiring Noyce, and our review of the record reveals that no such evidence exists. Based on the record before us, it is clear that Aggressive Metals did not ordinarily, customarily, or habitually employ three employees at the time Noyce was injured. Similarly, it cannot reasonably be argued that when Aggressive Metals took on Noyce as a third employee for a few days it met the definition of employing three employees more often than not. Thus, Aggressive Metals was not an employer within the meaning of subdivision (1)(b)1. when Noyce suffered his work-related injury" (¶ 16).


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