Vol. 73, No. 9, September 2000

Court of Appeals Digest

| Criminal Law | Criminal Procedure |
| Employment Law | Frivolous Actions |
| Juries | Lemon Law | Open Records Law |
| Probate | Sexually Violent Persons |

Second Degree Sexual Assault of a Child – Elements

State v. Olson, 2000 WI App 158 (filed 22 June 2000) (ordered published 26 July 2000)

The 18-year-old defendant was charged with two counts of second degree sexual assault of a child arising out of an incident in which she had sexual intercourse with two boys, aged 14 and 15. For purposes of this offense, the term "sexual intercourse" is defined as "vulvar penetration as well as cunnilingus, fellatio, or anal intercourse between persons or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal opening either by the defendant or upon the defendant's instruction. Emission of semen is not required." Wis. Stat. § 948.01(6).

The circuit court instructed the jury that, in order to find the defendant guilty, it had to find that sexual intercourse occurred and that the victim had not attained the age of 16 at the time of the sexual act. The court denied a defense request for an instruction that the jury also had to find that the sexual intercourse occurred either as a result of an intentional direct act of the defendant or as a result of an act by the victim that was done in compliance with affirmative instructions of the defendant. The jury found the defendant guilty.

In a decision authored by Judge Eich, the court of appeals reversed. Construing the statute quoted above, the court concluded that the phrase "by the defendant or upon the defendant's instruction" was intended by the legislature to modify the entire list of prohibited activities – including "vulvar penetration" and "cunnilingus" – and establishes that, in order for sexual intercourse, as defined, to occur, the defendant has to either affirmatively perform one of the specified actions on the victim, or instruct or direct the victim to perform one of them on himself or herself. The defendant was entitled to the inclusion of this information in the jury instructions. The circuit court erred in rejecting the defendant's requested instruction and the appellate court accordingly reversed the conviction and ordered a new trial.

Criminal Procedure State Prison Inmates – Incarceration in Out-of-state Prisons Upheld

Evers v. Sullivan, 2000 WI App 144 (filed 1 June 2000) (ordered published 26 July 2000)

In this case the circuit court concluded that the Department of Corrections (DOC) lacks the legal authority to transfer inmates of Wisconsin prisons to facilities outside the state without their consent. The DOC appealed and the court of appeals, in a decision authored by Judge Deininger, reversed.

The inmates argued that Wisconsin Statutes authorized DOC to enter into contracts for the transfer and confinement of Wisconsin inmates at public and private facilities in other states, but that absent the consent of an individual inmate, DOC may not effect an out-of-state transfer. DOC responded that the legislature's grant of authority to enter into these contracts carries with it the authority to do the thing contracted for, and that any other reading of the statute is unreasonable.

The court of appeals concluded that the language of the controlling statute (Wis. Stat. section 301.21) plainly evinces a legislative intent to authorize DOC to both enter into contracts with entities operating correctional facilities in other states, and to then transfer Wisconsin inmates for incarceration at those facilities pursuant to those contracts. Had the legislature wished to restrict DOC's authority to implement the contracts or to limit its authority to the transfer of "volunteers" only, it could easily have said so.

The inmates also contended that their sentences "to the Wisconsin state prisons" give them an expectation that they will serve their entire sentences in Wisconsin correctional facilities and that they thus have a liberty interest enforceable under state law that would be infringed upon if DOC transfers them to an out-of-state institution. The appellate court also rejected this argument.

Collateral Attack on Guilty Plea – Plea Accepted Via Closed-circuit Television

State v. Peters, 2000 WI App 154 (filed 16 May 2000) (ordered published 26 July 2000)

The defendant was convicted of a fifth offense of operating after revocation of his operating privilege. Before pleading no contest to this charge, he filed a motion attacking, for sentencing purposes, the validity of his second OAR conviction that occurred several years earlier. The basis for the attack on the earlier conviction was that the guilty plea procedure that resulted in the prior conviction was conducted via closed-circuit television.

In a majority decision authored by Judge Peterson, the court of appeals concluded that the closed-circuit television procedure for accepting the plea violated Wis. Stat. section 971.04(1), which provides that the defendant shall be present at the arraignment and at the imposition of sentence. The defendant did not explicitly waive his right to be physically present.

Despite this violation of statutory criminal procedure, the court of appeals still needed to decide whether the defendant established a violation of a constitutional right that affects the reliability of the prior conviction. Wisconsin courts have recognized that the presence of the defendant is required as a constitutional condition of due process to the extent that a fair and just hearing would be thwarted by his absence. In this instance the court concluded that the closed-circuit television procedure did not violate the defendant's due process rights. During the hearing, the court clarified for the defendant the elements of the offense to which he was pleading and the ramifications of a decision to waive counsel. The court explained the constitutional rights the defendant would be waiving by entering his plea. The court went on to cover all of the other matters required by law for the taking of a valid plea. Further, the judge was able to observe the defendant's demeanor and the defendant was able to observe the judge. On this record the appellate court concluded that the fairness and justness of the closed-circuit hearing was not thwarted by the defendant's physical absence.

In footnote the court also observed that the defendant was properly sentenced in the earlier case via closed-circuit television. Although a defendant has a due process right to be present at a sentencing hearing and to be afforded the right of allocution, the record clearly and convincingly shows that the sentencing hearing was conducted fairly and that the defendant had every opportunity to address the court.

Judge Hoover filed a concurring opinion.

At-will Employee – Public Policy

Batteries Plus v. Mohr, 2000 WI App 153 (filed 7 June 2000) (ordered published 26 July 2000)

Mohr sued his former employer, Batteries Plus (BP), alleging wrongful discharge. A jury found that Mohr's discharge violated public policy. The discharge concerned the repayment of travel expenses.

The court of appeals, in a decision written by Judge Anderson, affirmed. The case posed the following issue: Whether the public policy exception to the at-will employment doctrine is violated where "an employee is terminated as a result of a dispute over the reimbursement of travel expenses previously paid by an employer" (¶ 11). Prior case law held "that Wis. Stat. § 103.455 contains a 'fundamental and well-defined public policy exception' to the employment-at-will doctrine" (¶ 16). BP unsuccessfully argued that section 103.455 did not apply "because it accepted full responsibility for the overpayment and the overpayment was not a work-related loss but an administrative foul-up"; thus, "its attempts to secure repayment from Mohr did not amount to the economic coercion proscribed by the statute."

The court held that "the exception to the employment-at-will doctrine found in section 103.455 prohibits an employer from using its coercive economic power to shift the burden of operating its business to the employee, including the employer's overpayment of travel expenses or wages" (¶ 18). Finally, the evidence supported the jury's verdict. (The court also addressed an "offer of settlement" issue, which it resolved in Mohr's favor.)

Frivolous Actions Jurisdiction – Evidentiary Hearings

Lucareli v. Vilas County, 2000 WI App 157 (filed 27 June 2000) (ordered published 26 July 2000)

In a previous appeal the court held that the Lucarelis had filed a frivolous action against a DNR employee and also had processed a frivolous appeal. The court remanded the case to the circuit court to determine the amount of attorney fees. The circuit court held a hearing and awarded attorney fees based on an affidavit by the assistant attorney general who handled the case. The Lucarelis again appealed.

The court of appeals, in a decision written by Judge Peterson, affirmed in an opinion that addresses two issues. First, the Lucarelis argued that the circuit court lacked "subject matter jurisdiction to determine the amount of reasonable attorney fees associated with their frivolous appeal." The "fundamental flaw" in this argument was that the court of appeals itself had imposed the sanction. Following "long-standing procedure," the appellate court had remanded the matter to the circuit court to determine the amount of reasonable attorney fees (¶ 8).

Second, the Lucarelis were not entitled to "pre-hearing discovery" and an evidentiary hearing on the issue of the amount of attorney fees. The trial court provided the Lucarelis with a "meaningful opportunity to submit counter-affidavits and/or arguments that could have created a material issue of fact involving defense counsel's affidavit" (¶ 11). They failed to do so. The circuit court possessed the expertise to evaluate the attorney fees as described in the defense attorney's affidavit.

Subjective Bias – Removal – Making the Record

State v. Gilliam, 2000 WI App 152 (filed 15 June 2000) (ordered published 26 July 2000)

The defendant appealed his conviction for homicide, arguing that one juror should have been removed for subjective bias. The court of appeals, in a decision written by Judge Vergeront, affirmed. The record showed that the juror stated he would probably convict the defendant of homicide "based on the fact that he was in possession of a gun at the time of the victim's death" (¶ 7). The record revealed that defense counsel had asked a series of "confusing or ambiguous questions." The court of appeals therefore deferred to the trial court's "better vantage point" of determining how jurors actually "understood" the questions. The court remarked that "[I]n order to establish bias, the questions to jurors must be precise, and ambiguities must be clarified with follow-up questions" (¶ 14).

Releases – 30-day Period

Chariton v. Saturn Corp., 2000 WI App 148 (filed 21 June 2000) (ordered published 26 July 2000)

A car manufacturer, Saturn, appealed a finding that it failed to comply with "the Lemon Law's 30-day time frame in which to replace the consumer's vehicle or refund the purchase price."

The court of appeals, in a decision written by Judge Brown, affirmed. Prior case law held "that 30 days means 30 days; a dispute between the consumer and the manufacturer about the amount of refund does not toll the 30-day period in which the manufacturer must act." In this case the court held that the "same is true of a dispute over the breadth of a release" (¶ 1). The Lemon Law "does not contemplate that the consumer be required to sign a general release in order to obtain a refund. ... Rather than merely acknowledge that Saturn had fulfilled its obligations under the Lemon Law, the release Saturn wanted [the consumer] to sign would have barred any suit against anyone about anything having to do with the car"(¶ 5).

911 Calls – DAT Copies

State ex rel. MPA v. Jones, 2000 WI App 146 (filed 13 June 2000) (ordered published 26 July 2000)

The Milwaukee Police Association (MPA) petitioned the court for a writ of mandamus compelling the police department to produce a digital audio tape (DAT) recording of a 911 call pursuant to the open records law. The department contended that an analog tape sufficed. The court granted the writ, the department appealed, and the court of appeals affirmed.

Judge Schudson, writing for the court, determined that Wis. Stat. section 19.36(4) clearly and unambiguously "allows for exactly what the MPA has requested – access to the source 'material' and the opportunity for 'examination and copying'" (¶ 17). The court rejected the department's "tortured" argument that the original communication occurred through human speech and did not take a digital format.

Annuities – Marital Property Agreements (MPAs) – Conflicts Between Annuity Contracts and MPAs

Reichel v. Jung, 2000 WI App 151 (filed 14 June 2000) (ordered published 26 July 2000)

The children of Ronald Jung appealed from an order of the circuit court dismissing their claim seeking the proceeds of an annuity owned by their father prior to his death. The children argued that the annuity transferred to their father's estate pursuant to a "Marital Property Classification Agreement" executed by Ronald and his wife Dianne. [The children are from Ronald's first marriage; Dianne was his second wife.] Dianne countered that the terms of the annuity should dispose of the policy because it expressly directed ownership to pass to her as "co-annuitant."

In a decision authored by Judge Snyder, the court of appeals agreed with Dianne that the terms of the annuity controlled this dispute. The court followed Wisconsin law concerning nonprobate transfers at death and joint accounts with the right of survivorship. Pursuant to Wis. Stat. section 705.20, the annuity passed to Dianne as a nonprobate transfer of property, thereby defeating the marital agreement's classification of the annuity as individual property and the bequest in Ronald's will of individual property to his children. Further, the court concluded that under Wis. Stat. section 705.04, the annuity constituted a joint account that transferred to Dianne as Ronald's survivor.

In some cases a marital agreement must yield to the terms of a previously agreed upon contractual arrangement. Under Wis. Stat. section 705.20, a contractual arrangement that creates a nonprobate transfer of property will defeat a marital agreement that does not make such a transfer. Under section 705.04(1), a joint account with the right of survivorship will defeat a marital agreement that seeks to transfer funds otherwise. The court acknowledged that this result places the onus on marital partners to be knowledgeable of the terms of contractual arrangements that are included within their marital agreements. This result, however, did not strike the court as particularly troubling because "it will encourage marital parties to become more aware of the terms of their prior contractual arrangements and to express more clearly their intentions in planning their estate."

Stayed Sentences – Discharge

State v. White, 2000 WI App 147 (filed 4 April 2000) (ordered published 26 July 2000)

The defendant was convicted for substantial battery on March 13. The court did not sentence him then. Several weeks later he was committed for institutional care as a sexually violent person under Wis. Stat. chapter 980. The chapter 980 commitment involved unrelated offenses. Following the commitment, the circuit court sentenced him to 23 months in prison on the substantial battery charge but stayed the sentence until such time as he is discharged from the chapter 980 commitment or granted supervised release in a nonsecure facility.

The court of appeals, in a decision written by Judge Schudson, affirmed. Based on the case law and its construction of the statutes, the court concluded "that a circuit court has authority to stay a sentence for 'legal cause' during the period of a defendant's commitment under Wis. Stat. chapter 980." It also held "that a circuit court, in deciding whether to stay a sentence during the period of a chapter 980 commitment, must exercise discretion on a case-by-case basis in order to balance and give effect to the goals of both mental health treatment and incarceration" (¶ 11).