author: BROWN, P.J.

text:
    In re the Marriage of: Lori Trost, Petitioner-Respondent, v. Keith D. Trost, Respondent-Appellant.
    Court of Appeals

      No. 99-1236.

      Submitted on briefs May 18, 2000.

    Decided August 2, 2000.

    2000 WI App 222
    (Also reported in 619 N.W.2d 105.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Keith Trost, pro se.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Joe E. Kremkoski of Racine.
    Before Brown, P.J., Anderson and Snyder, JJ.
   BROWN, P.J.

¶ 1. Keith D. Trost appeals a trial court order setting a placement schedule for his daughter Alice. The trial court modified placement within two years of the initial order setting placement. Absent an allegation and a showing that "the current custodial conditions are physically or emotionally harmful to the best interest of the child," Wis. Stat. § 767.325(1)(a) (1997-98), a trial court does not have authority to change placement within two years of the initial placement order. See Paul M.J. v. Dorene A.G., 181 Wis. 2d 304, 307, 510 N.W.2d 775 (Ct. App. 1993). We reverse the portion of the trial court's order that set a new placement schedule. We affirm, however, the portion of the order refusing to change the amount Keith pays in child support because the record supports the trial court's conclusion that Keith did not show a change in circumstances warranting modification of support.

¶ 2. Keith and Lori Trost were divorced by stipulated agreement approved by the court on July 10, 1997. Under that agreement, Lori had primary physical placement of the couple's daughter Alice. Keith had physical placement "at reasonable and liberal times" including, at a minimum, Monday through Friday after day care until 5:15 p.m. and alternating weekends. The plan did not work out; Keith and Lori had disagreements about Alice's placement. Dissatisfied with the amount of time he was seeing Alice, Keith sought to have the placement agreement enforced. He also sought modification of his child support obligation.

¶ 3. The trial court recognized that Keith's claim was that Lori was "not holding up her end of the bargain" and went on to state that it did not "view that as a change of placement issue" but rather "as an enforcement issue." The court then went on to declare that the existing schedule was "absolutely meaningless" because it gave Keith placement during the day when Alice was in school. The trial court continued:

So we're starting all over again not in terms of primary placement. She has it. She's keeping it. You understand. We're within two years. So she has primary placement. So don't talk about changing primary placement, Mr. Trost, because unless you can prove some type of physical or mental harm to that child, that's not on the table.
However, what is on the table is a visitation schedule. That's what is on the table because the visitation schedule that you've agreed to is not really a visitation schedule as long as the child is in school.... We're going to get away from such other reasonable times and as parties agree because that's not going to work. . . . It's going to be a set schedule....

The trial court then set a new placement schedule by which Keith had physical placement on alternating weekends, Monday evenings when there were 4H meetings, alternating Wednesday evenings during the summer and alternating Tuesday evenings during the school year. Keith argues that it was error for the trial court to modify the initial placement order.

¶4. Normally, whether to modify a placement order is committed to the discretion of the trial court. See Andrew J. N. v. Wendy L. D., 174 Wis. 2d 745, 764-66, 498 N.W.2d 235 (1993). Here, however, the question is not whether the trial court properly exercised its discretion in modifying the placement order but whether the trial court had authority to modify the placement order within two years of the initial placement order. Thus, it is a question of law we review de novo. See Paul M.J., 181 Wis. 2d at 310.

¶ 5. The quote above, along with other parts of the record, shows that the trial court operated under the mistaken view that Wis. Stat. § 767.325(l)'s two-year prohibition on modification of placement orders applied only to modification of primary placement, not physical placement, the modern term for what used to be known as visitation. See Jocius v. Jocius, 218 Wis. 2d 103, 112, 580 N.W.2d 708 (Ct. App. 1998). But the two-year prohibition on modification applies to any order of physical placement "if the modification would substantially alter the time a parent may spend with his or her child." Section 767.325(1)(a)2. Absent a showing that the current arrangement is harmful to the child or a showing that the modification is not a substantial alteration in the time spent between parent and child, the court has no authority to intervene during the two-year "truce" period. See Paul M.J., 181 Wis. 2d at 311. Here, the trial court made an explicit finding that "[tjhere has not been a sufficient showing that the current placement... is harmful to the physical or emotional well-being of the . . . child." Additionally, under the original order, Keith saw the child on every weekday after day care and every other weekend. Under the modified order, Keith sees the child on Mondays if there is a 4H meeting, alternating Wednesday evenings during the summer and alternating Tuesday evenings during the school year. It cannot be disputed that the change represents a substantial alteration in the time Keith is able to spend with the child. Thus, once the trial court determined that there was nothing harmful to the child in the original order and further determined a change that would be substantial, the trial court thereafter had no authority to modify the placement order. We thus vacate that portion of the trial court's order modifying the initial physical placement order.

¶ 6. Keith also argues that his child support should be reduced because he is a "shared-time payer." See Wis. Admin. Code § DWD 40.02(25). Wisconsin Stat. § 767.32(1) allows a trial court to modify a child support order "only upon a finding of a substantial change in circumstances." But Keith's situation when he began these proceedings was the same as when he entered into the stipulated agreement. If Keith objected to the child support terms in the agreement he should have brought up his shared-time argument when the agreement was being negotiated. The trial court told Keith that the support portion of the order was going to remain the same "unless you can establish some substantial change of circumstances which I haven't heard yet." The record supports the trial court's conclusion. We affirm that portion of the order refusing to modify child support.

¶ 7. In conclusion, we reverse that part of the order setting a new placement schedule and affirm that part keeping child support the same. Keith is now in the same position he was when he initiated these proceedings. We note, however, that the two-year "truce" period is now up. Thus, the trial court is now free to modify the initial placement schedule should the issue arise again.

By the Court. — Order affirmed in part; reversed in part and cause remanded.

       All references to the Wisconsin Statutes are to the 1997-98 version.

       Wisconsin Stat. § 767.325(1) states in part:
      (1) SUBSTANTIAL MODIFICATIONS, (a) Within 2 years after initial order. Except as provided under sub. (2), a court may not modify any of the following orders before 2 years after the initial order is entered under s. 767.24, unless a party seeking the modification, upon petition, motion, or order to show cause shows by substantial evidence that the modification is necessary because the current custodial conditions are physically or emotionally harmful to the best interest of the child:
      1. An order of legal custody.
      2. An order of physical placement if the modification would substantially alter the time a parent may spend with his or her child.


source: Caselaw Access Project

author: SNYDER, J.

license: Public Domain

text:
    State of Wisconsin, ex rel. Robert Garel, Petitioner-Appellant, v. Kenneth Morgan, Respondent-Respondent.
    Court of Appeals

      No. 99-1642.

      Submitted on briefs August 15, 2000.

    Decided September 6, 2000.

    2000 WI App 223
    (Also reported in 619 N.W.2d 285.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs oí Robert Garel, pro se.
    On behalf of the respondent-respondent, the cause was submitted on the brief of Karla Z. Keckhaver, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, Anderson and Snyder, JJ.
   SNYDER, J.

¶ 1. Robert Garel appeals from an order of the circuit court dismissing his amended petition for writ of habeas corpus and ordering the Department of Corrections to extend his mandatory release date by 180 days as a sanction for providing false information to the court pursuant to Wis. Stat. § 807.15(2)(c) (1997-98). We conclude that §807.15 does not apply to Garel, and we therefore reverse the order of the circuit court.

FACTS

¶ 2. This case has a lengthy and complex history, which this court will attempt to succinctly summarize. On December 8, 1995, Dane County Circuit Court Judge Mark Frankel denied Garel's request for certio-rari review of his probation and parole revocations in two consolidated cases. On August 21,1997, this court affirmed the circuit court's decision, and on November 20, 1997, the Wisconsin Supreme Court denied Garel's petition for review.

¶ 3. Garel then filed a motion to vacate Judge Frankel's December 8, 1995 order on the grounds that the decision violated the mandates of Drow v. Schwarz, 220 Wis. 2d 415, 583 N.W.2d 655 (Ct. App. 1998). On October 8, 1998, Judge Frankel granted Garel's motion to vacate and transferred the case to Judge Daniel Moeser, the court of conviction, pursuant to Drow. See id. On December 7, 1998, Judge Moeser concluded that Judge Frankel correctly decided Garel's petitions for certiorari review. Judge Moeser then entered Judge Frankel's decision nunc pro tunc to December 7, 1998.

¶ 4. On December 16, 1998, Garel filed a motion to reopen and/or vacate Judge Moeser's December 7, 1998 decision. Judge Moeser denied this motion and Garel missed the deadline for appeal.

¶ 5. During this same period, Garel also commenced a civil rights damage suit in Dane county circuit court alleging transgressions similar to those Judge Frankel had rejected. On August 17,1998, Dane County Circuit Court Judge Sarah B. O'Brien dismissed the case because Judge Frankel's decision was preclusive. In October 1998, Garel moved to reopen this case based upon the vacation of Judge Frankel's December 8, 1995 order and subsequent transfer to Judge Moeser. In December 1998, Judge O'Brien denied Garel's motion to reopen based upon Judge Moeser's adoption of Judge Frankel's decision. Garel filed another motion to vacate Judge O'Brien's original order, but on February 1, 1999, Judge O'Brien denied this motion to vacate.

¶ 6. At some point, Garel filed another lawsuit, a habeas corpus challenge to his probation and parole revocations, based upon ineffective assistance of counsel. This case was dismissed, and in August 1998, this court ruled that Garel was not constitutionally entitled to counsel at his revocation hearings.

¶ 7. The case at hand was commenced in September 1998 when Garel filed a petition for habeas corpus review of Judge Frankel's December 8,1995 decision in Racine county circuit court. On September 30, 1998, the Racine county circuit court dismissed Garel's petition for failure to state a claim.

¶ 8. Garel then filed several motions. On October 12,1998, he filed a supplemental amended petition for writ of habeas corpus; a notice of motion and motion for relief from judgment or order; a motion for reconsideration; and a motion to file supplemental petition. On October 19, 1998, Garel filed a motion to vacate decision and reopen. On November 30, 1998, he filed a notice of motion and motion for appointment of counsel. On December 14,1998, Garel filed a brief in support of these motions; the brief was signed by Garel on December 8,1998.

¶ 9. On February 25, 1999, Kenneth Morgan filed a motion to dismiss Garel's petition and to sanction Garel for providing false information to the court pursuant to Wis. Stat. § 807.15(2)(c). Attached to Morgan's motion was Judge Moeser's December 7, 1998 nunc pro tunc order adopting Judge Frankel's December 8,1995 order; Garel's December 16,1998 motion to vacate Judge Moeser's decision; and Judge O'Brien's February 1, 1999 order refusing to question the validity of Judge Moeser's decision. On April 22,1999, Garel filed a reply brief. Attached to Garel's reply brief was Judge Moeser's nunc pro tunc order; however, Garel again argued that Judge Moeser had no authority to adopt Judge Frankel's order and attempted to challenge his probation and parole revocations.

¶ 10. On April 23, 1999, a hearing was held on the above motions. The court dismissed the case and orally ordered that Garel's mandatory release date be extended for six months for providing false information to the court pursuant to Wis. STAT. § 807.15(2)(c). Garel appeals this dismissal and order extending his mandatory release date.

DISCUSSION

¶ 11. Garel raises many issues on appeal. He alleges that his constitutional due process rights, as implicated in Wis. Stat. § 807.15, were violated because he was not afforded any procedural due process or hearing rights when the circuit court extended his mandatory release date, that he was not given full written notice of the alleged violations under § 807.15(2), that the hearing to extend his mandatory release date is quasi-criminal in nature and therefore his constitutional right to counsel was violated when he was not provided an attorney during this proceeding, that his mandatory release date cannot be extended when there is a discrepancy between the oral and written court orders, and that the 180-day extension of his mandatory release date is too harsh under Wis. Admin. Code § DOC 302.21. However, we need not address these numerous arguments because the statute upon which the circuit court rested its authority to extend Garel's mandatory release date, § 807.15, does not apply to Garel.

¶ 12. This issue presents a question of statutory interpretation. A question of statutory interpretation is one that we review de novo. See Gorton v. Hostak, Henzl & Bichler, S.C., 217 Wis. 2d 493, 502, 577 N.W.2d 617 (1998). Consequently, we need not defer to the decision of the circuit court for the circuit court is in no better position to interpret the statute than this court. See McGarrity v. Welch Plumbing Co., 104 Wis. 2d 414, 419, 312 N.W.2d 37 (1981).

¶ 13. Wisconsin Stat. § 807.15 provides in part:

(1) In this section, "prisoner" has the meaning given in s. 801.02 (7) (a) 2.
(2) In any action or special proceeding, including a petition for a common law writ of certio-rari, brought by a prisoner, the court may, on its own motion or on the motion of any party, order the department of corrections to extend the prisoner's mandatory release date calculated under s. 302.11 (1) . . .if the court finds that any of the following applies:
(a) The action or special proceeding was filed for a malicious purpose.
(b) The action or special proceeding was filed solely to harass the party against which it was filed.
(c) The prisoner testifies falsely or otherwise knowingly offers false evidence or provides false information to the court.
(3) (a) Subject to pars, (b) and (c), if a court orders the department of corrections to extend a prisoner's mandatory release date . . . the order shall specify the number of days by which the mandatory release date ... is to be extended or the good time deprived.
(b) An order -under sub. (2) to extend a prisoner's mandatory release date . . . may not require the prisoner to serve more days than provided for under the prisoner's sentence.
(4) This section applies to prisoners who committed an offense on or after September 1, 1998. (Emphasis added.)

Subsection (4) is dispositive to this appeal; it specifically states that § 807.15 applies only to prisoners who committed an offense on or after September 1,1998.

¶ 14. "Offense” is not defined anywhere in Wis. Stat. § 807.15. After a review of the record revealed that this issue was never addressed at the circuit court level, this court ordered Morgan to address whether the term "offense" refers to the criminal offense for which the prisoner is incarcerated. Morgan concedes that the drafting records for 1997 Wis. Act 133, which created § 807.15, do not provide any insight as to legislative intent. Morgan argues that it is unclear from the plain language of subsec. (4) whether "offense" applies to "an inmate's litigation abuse 'offense' or an inmate's criminal 'offense,'" and thus it is reasonable to interpret "offense" as used in § 807.15(4) as referring to an abusive litigation offense. We disagree.

¶ 15. When we construe a statute, our primary objective is to give effect to legislative intent. See Erbstoeszer v. American Cas. Co., 169 Wis. 2d 637, 642, 486 N.W.2d 549 (Ct. App. 1992). Our first resort is to the language of the statute itself. See id. Courts are obliged to give statutory language its ordinary and accepted meaning. See id. In the absence of a statutory definition, all words must be construed according to their common and approved usage. See Swatek v. County of Dane, 192 Wis. 2d 47, 61, 531 N.W.2d 45 (1995). Common and approved usage of a word may be established by reference to a dictionary definition. See id.

¶ 16. "Offense" is defined as a "violation or infraction of a moral or social code; transgression or sin .... [a] transgression of law; crime." American Heritage Dictionary 863 (2d College ed. 1982). Black's Law Dictionary defines "offense" as a "violation of the law; a crime, often a minor one." Black's Law Dictionary 1108 (7th ed. 1999). Where statutory language is clear, reference to extrinsic aids, such as legislative history or the rules of statutory construction, is unnecessary. See Holdmann v. Smith Lab., Inc., 151 Wis. 2d 813, 816, 447 N.W.2d 69 (Ct. App. 1989).

¶ 17. The plain and unambiguous language of Wis. Stat. § 807.15 clearly indicates that this statute was intended to apply only to those prisoners who committed a crime on or after September 1, 1998. It is apparent from the briefs that Garel is in prison as a result of probation and parole revocations from a 1995 or earlier conviction. His underlying crime plainly predates the September 1, 1998 date set forth in § 807.15(4).

¶ 18. In sum, the circuit court did not have the authority to extend Garel's mandatory release date pursuant to Wis. Stat. § 807.15. Section 807.15 applies only to those prisoners who have committed an offense on or after September 1,1998, and Garel's offense predates September 1, 1998. Consequently, § 807.15 cannot be applied to him.

By the Court. — Order reversed.

       All references to the Wisconsin Statutes are to the 1997-98 version.

       This decision addresses only the extension of Garel's mandatory release date as a sanction pursuant to Wis. Stat. § 807.15, and not the court's dismissal of the petition itself. The only issues briefed by either party address the court's extension of Garel's mandatory release date. "On appeal, issues raised but not briefed or argued are deemed abandoned." State v. Ledger, 175 Wis. 2d 116, 135, 499 N.W.2d 198 (Ct. App. 1993).

       While Drow v. Schwarz, 220 Wis. 2d 415, 583 N.W.2d 655 (Ct. App. 1998), was good law at the time Garel filed this motion, the Wisconsin Supreme Court ultimately reversed this court's ruling in Drow. See Drow v. Schwarz, 225 Wis. 2d 362, 592 N.W.2d 623 (1999), as amended on denial of reconsideration, 226 Wis. 2d 826, 599 N.W.2d 410 (Wis. June 25, 1999) (No. 97-1867).


author: PETERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Stuart D. Yates, Defendant-Appellant.

    Court of Appeals

      Nos. 99-1643-CR, 99-1644-CR.

      Submitted on briefs August 14, 2000.

    Decided September 6, 2000.

    2000 WI App 224
    (Also reported in 619 N.W.2d 132.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Martha K. Askins, assistant state public defender, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Lara M. Herman, assistant attorney general.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.

       Petition to review denied.

   PETERSON, J.

¶ 1. Stuart Yates appeals the judgment convicting him of second-degree sexual assault of a child, and an order denying his post-conviction motion to withdraw his no contest plea. Yates' motion alleged that his plea was not knowing and voluntary because the trial court failed to inform him of the presumptive mandatory release date pursuant to WlS.- Stat. § 302.ll(lg)(am). We reject Yates' argument and affirm the judgment of conviction and order denying post-conviction relief.

BACKGROUND

¶ 2. Yates was charged with various offenses in three separate cases. He entered no contest pleas to one count of second-degree sexual assault of a child and one count of theft. As part of a plea agreement, the other charges were dismissed and the State recommended probation with no more than six months in jail as a condition of that probation. During the plea colloquy, the court did not inform Yates that he would be subject to a presumptive mandatory release date on the sexual assault conviction, pursuant to Wis. Stat. § 302.11(lg)(am). The circuit court accepted Yates' pleas and found him guilty.

¶ 3. At sentencing, the circuit court declined to follow the State's recommendation. It sentenced Yates to five years' imprisonment for sexual assault and imposed and stayed a three-year sentence for theft. Yates filed a motion to withdraw his plea to the sexual assault charge. He argued that the circuit court should have informed him that he would be subject to a presumptive mandatory release date. The circuit court denied the motion because it determined that the effect of the presumptive mandatory release date was a collateral consequence of the plea. This appeal followed.

ANALYSIS

¶ 4. Permitting withdrawal of a guilty or no contest plea is a discretionary decision for the circuit court. See State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 635, 579 N.W.2d 698 (1998). "After sentencing, a defendant who seeks to withdraw a guilty or no contest plea carries a heavy burden." Id. The defendant must establish by clear and convincing evidence that the trial court should permit the defendant to withdraw the plea to correct a manifest injustice. See id. The constitution requires that a plea be voluntarily, knowingly and intelligently entered and that a manifest injustice occurs when it is not. See id. at 636-37. Whether a plea was voluntarily, knowingly and intelligently entered is a legal issue that we review independently. See State v. Bangert, 131 Wis. 2d 246, 283-84, 389 N.W.2d 12 (1986). However, we accept the trial court's findings of evidentiary or historical facts unless they are clearly erroneous. See id.

¶ 5. A plea is not knowingly, voluntarily, and intelligently entered when a defendant does not know what sentence could actually be imposed. See Warren, 219 Wis. 2d at 636. Before accepting a guilty or no contest plea, the court is required to "[a]ddress the defendant personally and determine that the plea is made voluntarily with an understanding of the nature of the charge and the potential punishment if convicted." Wis. Stat. § 971.08(l)(a).

¶ 6. When "informing defendants of their rights, courts are only required to notify them of the 'direct consequences' of their pleas." Warren, 219 Wis. 2d at 636 (quoting Bradley v. United States, 397 U.S. 742, 755 (1970)). The courts are not required to inform defendants of consequences that are merely collateral to the plea. See id. A defendant who is not apprised of the direct consequences of a plea does not knowingly, voluntarily and intelligently enter a plea and is entitled to withdraw it to correct a manifest injustice. However, no manifest injustice occurs when a defendant is not apprised of a collateral consequence. See State v. Madison, 120 Wis. 2d 150, 159, 353 N.W.2d 835 (Ct. App. 1984).

¶ 7. Direct consequences of a plea have a "definite, immediate, and largely automatic effect on the range of the defendant's punishment." State v. James, 176 Wis. 2d 230, 238, 500 N.W.2d 345 (Ct. App. 1993). Collateral consequences do not automatically flow from the plea, but rather will depend upon a future proceeding, or may be contingent on a defendant's future behavior. See State v. Myers, 199 Wis. 2d 391, 394-95, 544 N.W.2d 609 (Ct. App. 1996). Therefore, we must determine whether the presumptive mandatory release date is a direct or collateral consequence of Yates' no contest plea.

¶ 8. Under Wis. Stat. § 302.11(1), inmates are entitled to mandatory release on parole after completing two-thirds of their sentence. However, 1993 Wisconsin Act 1994 amended the mandatory release statute. Instead of an automatic release date after completing two-thirds of a prison sentence, an inmate convicted of any crime enumerated in the statute is subject to presumptive mandatory release. See Wis. Stat. § 302.11(lg)(b). In those cases, the parole commission may deny mandatory release on the grounds of protection of the public, or the inmate's refusal to participate in treatment or counseling. The parole commission can conceivably deny release until the inmate has served the full sentence.

¶ 9. Yates argues that the presumptive mandatory release date directly controls the amount of time he will have to serve in prison. Once he reaches two-thirds of his sentence, the parole commission will have the discretion to hold him for the full length of his sentence. Yates believes that the presumptive mandatory release date affects his present rights, not some potential future right. We disagree.

¶ 10. In James, we concluded that a defendant need not be notified of the collateral consequences of probation revocation because the possibility of revocation is controlled by the defendant's own actions and by the discretionary acts of an administrative agency. See James, 176 Wis. 2d at 244 n.6.

¶ 11. The same is true for Yates. Whether he will be denied mandatory release upon completion of two-thirds of his sentence depends on his conduct following sentencing and the discretionary decisions of the parole commission. Whether Yates would be denied mandatory release was purely speculative when he entered his plea. Therefore, the plea did not have a definite, immediate, and automatic effect on the range of his punishment.

¶ 12. In Myers, we concluded that the potential for the defendant to be committed as a sexual predator following his sexual assault conviction was a collateral consequence because his commitment as a sexual predator was contingent on a future commitment hearing. See Myers, 199 Wis. 2d at 394-95. The commitment itself did not flow from the conviction. While the underlying conviction was a requirement for the commitment, the conviction itself would not trigger commitment. See id. A future commitment would depend upon the defendant's condition at the time of the sexual predator proceeding. See id.

¶ 13. Similarly, the parole commission's decision regarding Yates' release will require consideration of his rehabilitation and possible threat to the public. It will also require consideration of Yates' participation in mandated institutional treatment or counseling. This requirement is dependent upon Yates' behavior while incarcerated. His future behavior could not be anticipated by the circuit court at the time the plea was entered. Yates’ potential serving of the full sentence imposed by the circuit court does not automatically flow from the plea and is dependent on factors other than the plea itself.

¶ 14. As in Myers, even though Yates is exposed to the possibility of further incarceration, he is not automatically subject to it. The trial court recognized this at the postconviction hearing, stating that "[w]e don't know if this is going to apply to Mr. Yates at all." The parole commission can release Yates at any time after the first parole eligibility date and "a substantial part of that is in Mr. Yates' hands in terms of how he cooperates with the Department of Corrections and the parole commission."

¶ 15. There is a possibility that Yates may be required to serve more than two-thirds of his sentence, but that is yet to be determined. That determination will be based on Yates' progress and behavior and his participation in treatment or counseling. See Wis. Stat. § 302.11(lg)(b). Yates' release is dependent upon the assessment of the parole commission at the time of his presumptive mandatory release. The commission's assessment could not be known at the time the plea was entered or the sentence imposed. Yates was only exposed to potential further action; he was not automatically subject to it.

¶ 16. Additionally, Yates' presumptive mandatory release is in the hands of the parole commission and not the circuit court. In some circumstances, "a particular consequence is deemed 'collateral' because it rests in the hands of another government agency or different tribunal." See State v. Kosina, 226 Wis. 2d 482, 486, 595 N.W.2d 464 (Ct. App. 1999) (quoting Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir. 1988)).

¶ 17. In State v. Santos, 136 Wis. 2d 528, 531, 401 N.W.2d 856 (Ct. App. 1987), we determined that deportation is a collateral consequence of a plea despite the fact that Wis. Stat. § 971.08(1)(c) requires the circuit court to inform a defendant of the possibility of deportation. Deportation requires the action of the Immigration and Naturalization Services. Similarly, Yates' exposure to a possible denial of release at two-thirds of his sentence is wholly in the hands of another governmental body. Therefore, presumptive mandatory release cannot be said to flow directly from the plea. It is collateral in nature.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted.

       Wisconsin Stat. § 302.11(lg)(am) provides: "The mandatory release date established in sub. (1) is a presumptive mandatory release date for an inmate who is serving a sentence for a serious felony committed on or after April 21, 1994, but before December 31,1999."

       Initially, Yates moved to withdraw his pleas to both the sexual assault and theft charges. In addition to the argument presented above, he claimed: (1) he was not made aware that a consequence of his conviction was that he would have to register as a sex offender upon release from prison; and (2) the trial court should have advised him that it did not intend to follow the State's sentence recommendation. Yates filed a motion to hold this case in abeyance in light of two cases which were pending in the supreme court. We granted the motion. As a result of the court's decision in State v. Bollig, 2000 WI 6, 232 Wis. 2d 561, 605 N.W.2d 199, and State v. Williams, 2000 WI 78, 236 Wis. 2d 293, 613 N.W.2d 132, Yates has abandoned these two additional arguments.

       Wisconsin Stat. § 302.11 provides:
      (1) The warden or superintendent shall keep a record of the conduct of each inmate, specifying each infraction of the rules. Except as provided in subs, (1g), (1m), (1q), (1z), (7) and (10), each inmate is entitled to mandatory release on parole by the department. The mandatory release date is established at two-thirds of the sentence. Any calculations under this subsection or sub. (1q) (b) or (2) (b) resulting in fractions of a day shall be rounded in the inmate's favor to a whole day.

       Wisconsin Stat. § 302.11(lg)(b) provides:
      Before an incarcerated inmate with a presumptive mandatory release date reaches the presumptive mandatory release date specified under par. (am), the parole commission shall proceed under s. 304.06 (1) to consider whether to deny presumptive mandatory release to the inmate. If the parole commission does not deny presumptive mandatory release, the inmate shall be released on parole. The parole commission may deny presumptive mandatory release to an inmate only on one or more of the following grounds:
      1. Protection of the public.
      2. Refusal by the inmate to participate in counseling or treatment that the social service and clinical staff of the institution determines is necessary for the inmate, including pharmacological treatment using an antiandrogen or the chemical, equivalent of an antiandrogen if the inmate is a serious child sex offender as defined in s. 304.06 (lq) (a).


text:
    Jessica Perra, Plaintiff-Appellant, Primecare Health Plan, Inc., Plaintiff, v. Menomonee Mutual Insurance Company, Richard Lauer and Twyla Lauer, Defendants-Respondents.
    Court of Appeals

      No. 00-0184.

      Submitted on briefs July 31,2000.

    Decided September 6, 2000.

    2000 WI App 215
    (Also reported in 619 N.W.2d 123.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Robert L. Elliott of Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the briefs of Douglas W. Lehrer and Brad W. Matthiesen of Mohr & Anderson, S.C. of Hartford.
    Before Brown, P.J., Anderson and Snyder, JJ.

       Petition to review denied.

   SNYDER, J.

¶ 1. Jessica Perra, a minor,

appeals from an order granting partial summary judgment to Richard Lauer and Twyla Lauer (Lauer) and Menomonee Mutual Insurance Company, Lauer's liability insurer. The circuit court held that a minor cannot maintain a cause of action under Wis. Stat. § 103.65 (1997-98) for absolute liability when the Department of Workforce Development (DWD) has not listed the minor's employment at the time of injury as a prohibited employment pursuant to Wis. Admin. Code § DWD 270.06. Perra argues on appeal that a violation of § 103.65 creates a cause of action under Wisconsin's child labor laws and an employer is absolutely liable for said violation, even if the minor's employment is not listed in § DWD 270.06 as a prohibited employment. Menomonee Mutual and Lauer argue that the list of prohibited employments contained in § DWD 270.06 provides employers with notice of all prohibited employment, and a specific violation of the directives of this list is required to find absolute liability for a violation of child labor laws. We agree with Menomonee Mutual and Lauer and affirm the circuit court's order.

BACKGROUND

¶ 2. The facts are undisputed. On April 22,1995, seventeen-year-old Perra was injured while working at a farm owned by Lauer. Perra was operating Lauer's cement mixer, mixing seed, when she was injured. The fingers of Perra's left hand sustained severe injury when her hand became caught in the gears of the cement mixer.

¶ 3. Perra and her health insurer, Primecare Health Plan, Inc., initiated this action against Lauer and Menomonee Mutual on February 12,1998, for the injuries Perra received on April 22,1995. In the second cause of action of the amended complaint, Perra alleged a cause of action against Lauer for employing her as a minor in an employment that was dangerous or prejudicial to her life, health, safety or welfare contrary to WiS. Stat. § 103.65. During pretrial discovery presented to the court during summary judgment motions, safety experts for both sides asserted that an unguarded, in-running nip joint of the cement mixer made Perra's employment a dangerous one.

¶4. After other various pretrial motions were resolved, on February 11, 1999, Menomonee Mutual and Lauer moved for partial summary judgment dismissing the amended complaint's second cause of action on the grounds that Perra's employment at the time she was injured, the operation of a cement mixer by a seventeen-year-old, was not employment prohibited by Wis. Admin. Code, §DWD 270.06. After a briefing schedule and a hearing where oral arguments were presented, the circuit court ruled in favor of Menomonee Mutual and Lauer and granted partial summary judgment. The matter then proceeded to a jury trial on the negligence claim alone. The jury found Lauer negligent, but also found that this negligence was not the cause of Perra's injuries. The circuit court then issued an order dismissing the matter on its merits. Perra appeals only the circuit court decision relating to summary judgment.

DISCUSSION

¶ 5. We review the circuit court's grant of summary judgment using the same methodology as the circuit court. See City of Beaver Dam v. Cromheecke, 222 Wis. 2d 608, 613, 587 N.W.2d 923 (Ct. App. 1998). That methodology is well known and need not be repeated here except to observe that summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. See id.; WlS. Stat. § 802.08(2). Because there are no material facts at issue in this case, we must determine which party is entitled to judgment as a matter of law. See Gorton v. Hostak, Henzl & Bichler, S.C., 217 Wis. 2d 493, 501-02, 577 N.W.2d 617 (1998).

¶ 6. Here, the issue presents a question of statutory and administrative rule interpretation. A question of statutory interpretation we review de novo. See id. at 502. Interpretation of an administrative regulation, like that of a statute, is also characterized as a question of law. See McGarrity v. Welch Plumbing Co., 104 Wis. 2d 414, 419, 312 N.W.2d 37 (1981). The result of such characterization is that on review we need not defer to the decision of the circuit court, for the circuit court is in no better position to interpret the regulation than this court. See id.

¶ 7. The statutes and administrative regulations at issue here, specifically Wis. Stat. §§ 103.65 and 103.66 and Wis. Admin. Code § DWD 270.06, involve Wisconsin's child labor laws. Wisconsin's child labor laws were enacted to prevent minors from being employed or allowed to work in hazardous occupations and to protect minors, other employees and frequenters who could be harmed as a result of the minor's employment in the hazardous employment. See Beard v. Lee Enters., Inc., 225 Wis. 2d 1, 18-19, 591 N.W.2d 156 (1999).

¶ 8. Perra argues that while Wis. Stat. § 103.66 gives the DWD permissive authority to determine and catalog which jobs for minors are per se dangerous or hazardous, Wis. Admin. Code § DWD 270.06 is not an exclusive list of prohibited employments. We disagree.

¶ 9. The child labor laws cannot be interpreted as a series of distinct statutory and administrative provisions but must be read as one cohesive enactment. See McGarrity, 104 Wis. 2d at 427. Wisconsin Admin. Code § DWD 270.06 in particular cannot be read in isolation; it must be read in conjunction with Wis. Stat. §§ 103.65 and 103.66. See McGarrity, 104 Wis. 2d at 427. Statutes and rules that assist in implementing a chapter's goals and policies should be read in pari materia. See Beard, 225 Wis. 2d at 11 n.7. In pari materia refers to statutes and regulations relating to the same subject matter or having a common purpose. See id. The statutory construction doctrine of in pari materia requires a court to read, apply and construe statutes relating to the same subject matter together. See id. "The child labor laws are to be viewed as one cohesive enactment . . . and should be read in pari materia." Id. (citation omitted).

¶ 10. Wisconsin Stat. § 103.65 delineates general standards for the employment of minors and states:

(1) A minor shall not be employed or permitted to work at any employment or in any place of employment dangerous or prejudicial to the life, health, safety, or welfare of the minor or where the employment of the minor may be dangerous or prejudicial to the life, health, safety or welfare of other employes or frequenters.
(2) No minor shall be employed or permitted to work at any employment for such hours of the day or week, or such days of the week, or at such periods of the day as shall be dangerous or prejudicial to the life, health, safety or welfare of such minor.

Wisconsin Stat. § 103.66 addresses the DWD's specific powers and duties relating to the employment of minors:

(1) The department may investigate, determine and fix reasonable classifications of employments, places of employment and minimum ages for hazardous employment for minors, and may issue general or special orders prohibiting the employment of minors in employments or places of employment prejudicial to the life, health, safety or welfare of minors, and may carry out the purposes of ss. 103.64 to 103.82. In fixing minimum ages for hazardous employment for minors under this subsection, the department shall permit the employment of a minor 14 years of age or over as a laboratory assistant for a nonprofit, community-based organization that provides educational opportunities in medically related fields if the minor is under the direct supervision of a mentor and the laboratory at which the minor is employed complies with 10 CFR 20.1207 and 29 CFR 1910.1030.
(2) The department may investigate and fix reasonable classifications of employments and hours of employment for minors and may issue general or special orders fixing maximum hours of employment for minors per day and per week, máxi-mum days of employment per week, hours at which employment shall begin and end and the duration of lunch and other rest periods as are necessary to protect the. life, health, safety, and welfare of minors.
(3) These investigations, classifications and orders provided for in subs. (1) and (2) shall be made as provided under s. 103.005. These orders are subject to review as provided in ch. 227. (Footnote added.)

It is through § 103.66 that the legislature has specifically empowered the DWD to promulgate rules regulating the employment of minors. See Beard, 225 Wis. 2d at 19.

¶ 11. As Wis. Stat. § 103.66 allows, the DWD has established specific classifications of employments, places of employment and minimum ages for hazardous employment in Wis. Admin. Code § DWD 270.06. Section DWD 270.06 precisely designates the employments and places of employment that are deemed dangerous or prejudicial to the life, health, safety and/or welfare of minors under the ages specified. Because § DWD 270.06 must be read in conjunction with § 103.66, it is clear that the employment classifications of § DWD 270.06 are fixed, i.e., exclusive and exhaustive.

¶ 12. We are further guided by a well-established principle of statutory construction: expressio unius est exclusio alterius or, in other words, the express mention of one matter excludes other similar matters not mentioned. See State v. Cetnarowski, 166 Wis. 2d 700, 710, 480 N.W.2d 790 (Ct. App. 1992). "[T]he enumeration of specific alternatives in a statute is evidence of legislative intent that any alternative not specifically enumerated is to be excluded." C.A.K. v. State, 154 Wis. 2d 612, 621, 453 N.W.2d 897 (1990).

¶ 13. Wisconsin Admin. Code § DWD 270.06 provides an extensive and meticulous inventory of employments, places of employment and minimum ages for hazardous employment. It is a thorough articulation of fixed and specific prohibited employment classifications, places of employment and minimum ages of employment. If we read § DWD 270.06 as one element of a comprehensive statutory and regulatory child labor law scheme, employing expressio unius est exclusio alterius as a method of statutory construction, we conclude that the DWD intended for this list of prohibited employments to be both exhaustive and exclusive. Both the breadth and the specificity of the subsections confirm this interpretation. An occupation must be listed in § DWD 270.06 for there to be absolute liability.

¶ 14. We now address whether Perra's employment at the time of injury falls into one of the employment categories listed in Wis. Admin. Code § DWD 270.06. Perra was employed by Lauer's farm as an agricultural employee. As to agricultural employment, § DWD 270.06 prohibits such employment to minors in the following manner:

(22) AGRICULTURE: (a) Finding and declaration of facts as to specific occupations. The following occupations in agriculture are particularly hazardous for the employment of minors 12 through 15 years of age.

It is undisputed that Perra was seventeen years old at the time of the injury, and that the agricultural employment prohibition is limited to minors from ages twelve through fifteen years.

¶ 15. The DWD provides a rule to encompass any employment not specifically enumerated in Wis. Admin. Code § DWD 270.06. This provision generally prohibits "[occupations which are found to be hazardous for the employment of minors or detrimental to their health or well-being." Section DWD 270.06(33). The inclusion of subsec. (33), a catchall to include any dangerous or hazardous employment not specifically listed in § DWD 270.06, is additional evidence that the included list is intended to be exhaustive. We conclude, as did the circuit court, that agricultural employment is a specifically enumerated employment in § DWD 270.06, that Perra's agricultural employment is not prohibited as a hazardous occupation under § DWD 270.06, and, therefore, that Perra did not state a cause of action for absolute liability under Wis. Stat. § 103.65.

¶ 16. This does not mean that a minor who is injured in an employment not listed in Wis. Admin. Code § DWD 270.06 is without recourse; such a minor may still have available to him or her a cause of action for negligence. But without a specific allegation that the minor was employed in a § DWD 270.06 prohibited employment, no absolute liability exists pursuant to Wis. Stat. § 103.65.

¶ 17. Perra's heavy reliance on McGarrity; Beard; D.L. v. Huebner, 110 Wis. 2d 581, 329 N.W.2d 890 (1983); and Fire Insurance Exchange v. Cincinnati Insurance Co., 2000 WI App 82, 234 Wis. 2d 314, 610 N.W.2d 98, is misplaced. None of these cases squarely address the issue currently before this court. In three of these cases, McGarrity, Beard and Huebner, there was no question that a violation of WlS. STAT. § 103.65 took place, for each minor was engaging in an employment specifically prohibited by Wis. Admin. Code § DWD 270.06. Reliance on Fire Insurance Exchange is equally misguided. In Fire Insurance Exchange, the minor was not working in one of the specific employments listed in § DWD 270.06 as hazardous per se. However, the circuit court failed to develop sufficient facts to determine if the injured minor fell into the catchall category of § DWD 270.06(33), and thus the case was remanded to the circuit court for such a determination. See Fire Ins. Exch., 2000 WI App 82 at ¶ 23; This is not the case in the situation at hand. Agriculture is a prohibited employment pursuant to § DWD 270.06. However, agriculture's age restrictions are limited to minors between the ages of twelve and fifteen years. Nowhere does § DWD 270.06 limit the agricultural employment of a seventeen year old.

¶ 18. In sum, because Perra's employment at the time of her injury does not fit within any of the prohibited employments set forth in Wis. Admin. Code § DWD 270.06, and because this list must be construed as an exhaustive list, she has not stated a cause of action for absolute liability under Wis. Stat. § 103.65.

CONCLUSION

¶ 19. We agree with Menomonee Mutual and Lauer that Perra has not stated a cause of action under Wis. Stat. § 103.65 because her employment at the time of her injury was not specifically enumerated in Wis. Admin. Code §DWD 270.06. The circuit court appropriately granted Menomonee Mutual and Lauer summary judgment on this issue. The circuit court's order is hereby affirmed.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 1997-98 version.

       Previously the Department of Workforce Development (DWD) was known as the Department of Industry, Labor and Human Relations (DILHR). As of May 13, 1997, DILHR was changed to DWD. See 1997 Wis. Act 3, §§ 151, 230.

       Wisconsin Stat. § 103.005 addresses the powers, duties and jurisdiction of the DWD.

       Wisconsin Admin. Code § DWD 270.06 states:

        The employments and places of employment designated herein shall be deemed to be dangerous or prejudicial to the life, health, safety, and/or welfare of minors under the ages specified, and their employment may be dangerous or prejudicial to the life, health, safety and/or welfare of other employes or frequenters and no employer shall employ or permit such minors to work in such employments.
      Section DWD 270.06 then provides a detailed list of employments, places of employment and minimum ages for the hazardous employment of minors.

       Both Perra and Menomonee Mutual and Lauer spend a great deal of time and effort discussing the distinction between strict and absolute liability pursuant to WlS. STAT. § 103.65. It is well-established law that an employer is absolutely liable for a violation of WlS. Admin. Code § DWD 270.06. But the first issue addressed should be whether there was a violation of § DWD 270.06. Without a violation, the issue of absolute liability under § 103.65 need not be addressed.


text:
    State of Wisconsin, Plaintiff-Respondent, v. Lawrence J. Fields, Defendant-Appellant.
    Court of Appeals

      No. 00-0694-CR.

      Submitted on briefs August 9, 2000.

    Decided September 6, 2000.

    2000 WI App 218
    (Also reported in 619 N.W.2d 279.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Daniel R. Goggin II of Goggin & Goggin, Neenah.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of M. Cathleen Huber, assistant district attorney, Appleton.
    Before Cane, C.J., Hoover, P.J., ánd Peterson, J.

       Upon the court's own motion, and order dated August 31, 2000, this decision is by a three-judge panel.

   PETERSON, J.

¶ 1. Lawrence Fields appeals a judgment of conviction for operating after revocation, second offense. Fields pled no contest to the charge following denial of his motion to suppress evidence on the grounds of an unlawful stop of his vehicle. We conclude that the officer lacked reasonable suspicion to stop. We therefore reverse the judgment and remand with directions to grant Fields' suppression motion.

BACKGROUND

¶ 2. At the suppression hearing officer Alphian Metoxen testified that he was on patrol in a marked squad car. Just before midnight he was driving southbound on Van Boxtel Road approaching the intersection with Ranch Road. Van Boxtel has stop signs at the intersection for both northbound and southbound traffic. Ranch has no stop signs. The intersection is located in a rural area.

¶ 3. When Metoxen was fifty to seventy yards from the intersection, he noticed a northbound vehicle stopped at the stop sign on Van Boxtel. He did not recall if the vehicle had a turn signal flashing. There was no other traffic.

¶ 4. After Metoxen stopped at the stop sign for southbound traffic, the northbound vehicle stayed stopped for five to ten seconds. It then pulled away from the stop sign and Metoxen stopped it. Fields was the driver.

¶ 5. The prosecutor asked Metoxen why he stopped the vehicle. The transcript reads:

Q Why do you do that?
A Reasons for suspicious activity.
Q What did the vehicle do that you thought was suspicious?
A Resting at the stop sign before I got there and then staying there as if waiting for me to go first.
Q Why did you find that to be suspicious?
A Just for the mere fact that it had stopped and there was no reason. There was no traffic. There wasn't a stoplight. It could have gone well before I left.
Q And what then made you think that that was suspicious of any type of potential illegal activity or improper activity?
A Because it just seemed like it was just resting waiting for me to go and then it'd just go the opposite way I'm going.
Q What then was potentially illegal? What did you think that it was — that caused you to think that it might be involved in something that was inappropriate?
A Possibly might be a drunk driver, you know, someone whose license is revoked or suspended, just something out of the ordinary, whether it's first trying to find out, you know, what kind [of] vehicle they got right there.

¶ 6. The prosecutor also asked Metoxen about his experience. Metoxen, who had been a police officer for three years, testified that a vehicle usually stops under these circumstances for several seconds less. The length of time Fields' stopped was unusual. Further, late at night, vehicles regularly try to evade squad cars by traveling in opposite directions, pulling into driveways or making other maneuvers to get out of sight. Past stops in those situations have yielded criminal activity on occasion.

¶ 7. A passenger in Fields' vehicle also testified at the suppression hearing. He contradicted Metoxen in several respects. The trial court found Metoxen more credible and disregarded the passenger's testimony.

¶ 8. The trial court denied the suppression motion. First, it commented that the stop was justified under the community caretaker doctrine. The court thought the delay at the stop sign could mean someone was in need of help, might have a medical condition, or might be under duress. Second, the court thought the circumstances justified suspicion of an intoxicated driver, someone with a guilty mind about driving status, someone trying to hide contraband or conceal himself or herself.

STANDARD OF REVIEW

¶ 9. When we review a motion to suppress evidence, we will uphold the circuit court's findings of fact unless they are clearly erroneous. See State v. Eckert, 203 Wis. 2d 497, 518, 553 N.W.2d 539 (Ct. App. 1996). However, the application of constitutional principles to the facts is a question of law we decide without deference to the circuit court's decision. See State v. Patricia A.P., 195 Wis. 2d 855, 862, 537 N.W.2d 47 (Ct. App. 1995).

DISCUSSION

¶ 10. To execute a valid investigatory stop consistent with the Fourth Amendment prohibition against unreasonable searches and seizures, a law enforcement officer must reasonably suspect, in light of his or her experience, that some kind of illegal activity has taken or is taking place. See State v. Richardson, 156 Wis. 2d 128, 139, 456 N.W.2d 830 (1990). In Wisconsin the reasonable suspicion standard has been codified in WlS. STAT. § 968.24. The question whether the officer's suspicion was reasonable is a common sense test: was the suspicion grounded in specific, articulable facts and reasonable inferences from those facts that the individual was committing a crime. See State v. Waldner, 206 Wis. 2d 51, 56, 556 N.W.2d 681 (1996). An inchoate and unparticularized suspicion or hunch will not suffice. See id. However, the officer is not required to rule out the possibility of innocent behavior. See State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990).

¶ 11. Before turning to the primary analysis, two issues are quickly dispatched. First, Fields bases much of his appellate argument on the testimony of his passenger. However, the trial court disregarded the passenger's testimony because it conflicted with the more credible testimony of the police officer. The court is the arbiter of credibility. See Lessor v. Ritchie, 221 Wis. 2d 659, 667, 586 N.W.2d 1 (Ct. App. 1998). Therefore, we also disregard the passenger's testimony and limit our review to the testimony of the officer.

¶ 12. Second, the judge upheld the stop not only on the basis of reasonable suspicion, but also on the basis of the community caretaker doctrine. The State, however, does not attempt to justify the stop on this basis. That is just as well, since community caretaking functions must be "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." State v. Anderson, 142 Wis. 2d 162, 166, 417 N.W.2d 411 (Ct. App. 1987). Thus, the stop cannot be upheld on that basis.

Evasion: Guilty Mind

¶ 13. Metoxen's primary emphasis in his testimony seemed to be a suspicion that Fields was going to try to evade him. In Anderson, our supreme court held that because "flight from the police is a strong indication of'mens rea,' i.e., a guilty mind or a guilty purpose, we conclude that behavior which evinces in the mind of a reasonable police officer an intent to flee from the police is suspicious behavior sufficient to justify a temporary investigative stop." See Anderson, 155 Wis. 2d at 79. Anderson sighted a squad car in an alley near where he lived, then turned his car away and onto a city street and sped up. The court concluded that "[f]light at the sight of police is undeniably suspicious." Id. at 84.

¶ 14. Anderson is helpful because it involves actual flight. That factor was important in the decision, as seen by the disagreement between the majority and concurrence over whether flight was actually demonstrated in the record. See id. at 91 (Heffernan, C.J., concurring). Thus, while the court approved flight as a basis for a stop, it has never suggested that a temporary pause, which might or might not be preliminary to evasive behavior, is reasonable suspicion of unlawful activity. Here, Fields did not flee or evade. The officer only thought the longer-than-normal stop might be a prelude to evasion. But after Fields pulled away from the stop sign, the officer stopped him immediately.

¶ 15. Another factor in Anderson is worthy of mention. Anderson turned his vehicle away when it was clear to the officers that he had observed the squad car. Thus, the court could infer a guilty mind. Here, there is no evidence that Fields knew that he was facing a squad car. The setting for this event was the middle of farm country around midnight. There is no testimony about artificial lighting. While the officer was driving a marked squad, he did not say how it was marked or how Fields would recognize it as a police vehicle in the dark. It cannot be inferred that Fields recognized it as a squad when the vehicle was still fifty to seventy yards from the intersection. And by the time the police vehicle came to a stop at the intersection in the dark, the evidence does not show whether headlights were enough to illuminate the identity of the squad car. The record is thus devoid of any facts from which an inference can be made as to whether Fields could identify the other vehicle as a squad car. Without these facts, there is no basis for the further inference of a guilty mind. Without that underpinning, Anderson does not permit the stop.

¶ 16. Even if Fields could identify the squad car by the time it stopped at the intersection, we are only talking about a delay from that point of five to ten seconds. Further, the officer said that a normal stop is only several seconds less. This minimum number of seconds is too scant a basis for inferring a guilty mind.

Articulable Facts

¶ 17. If the facts do not give rise to an inference of a guilty mind, then they must in some other way support an objective basis for suspecting that unlawful activity was afoot. See State v. Allen, 226 Wis. 2d 66, 75-76, 593 N.W.2d 504 (Ct. App. 1999). Metoxen posited that the facts might suggest a drunk driver or someone whose license was revoked or suspended. The court also mentioned the possibility of someone trying to hide contraband or conceal himself or herself.

¶ 18. The best the State was able to do for an analogous case is Waldner. There the court found reasonable suspicion in the totality of circumstances: traveling at 12:30 a.m. on a main street at a slow rate of speed, stopping at an intersection where there was no stop sign or stop light, turning onto a cross street and accelerating at a high rate of speed, parking and pouring a mixture of liquid and ice from a plastic glass onto the roadway. The court acknowledged that any of these facts standing alone might not suffice. See Waldner, 206 Wis. 2d at 58. It further recognized that Waldner did nothing illegal. Nevertheless, "a reasonable police officer . . . cannot ignore the reasonable inference that they might also stem from unlawful behavior." Id. at 61.

¶ 19. However, this case is a far cry from Waldner. There are far fewer facts here and the inferences require a much greater leap. Professor LaFave has noted that reactions of a suspect are a particularly murky area of the law of reasonable suspicion. He summarizes some of the cases:

Thus, it has properly been held that the "hesitancy of a car to pass a police cruiser and a glance at the police by a passenger," a "startled look at the sight of a police officer," appearing nervous when a police car passed, looking away from police activity in the vicinity, pointing toward police, driving off at a normal speed or quickening one's pace upon seeing the police are not, standing alone, sufficient bases for an investigative stop. By contrast, such stops have been upheld when the individual made repeated efforts to avoid police contact, when he engaged in a combination of several different possibly furtive actions, and when the person engaged in a rather extreme means of avoidance such as high-speed flight.

Wayne R. LaFave, Search and Seizure § 9.4(f), at 180-81 (3d ed. 1995).

¶ 20. A closer look at some of these cases is helpful to determine how other courts view analogous scenarios. In State v. Wiese, 525 N.W.2d 412 (Iowa 1994), slow driving in the absence of erratic driving, interference with traffic, or the posted limit did not constitute grounds for a stop. In State v. Brown, 509 N.W.2d 69 (N.D. 1993), driving at a slower than usual speed did not by itself create reasonable suspicion of driving while under the influence. In State v. Reynolds, 899 P.2d 540 (Mont. 1995), waiting seven to ten seconds at an intersection plus "bordering on traveling too fast" did not support a particularized suspicion of wrongdoing. In Kappel v. Director, DOT, 602 N.W.2d 718 (N.D. 1999), stopping at a stop sign for ten seconds at 1 a.m., then weaving in the lane of traffic was a sufficient basis to stop. The North Dakota court reached the same result in State v. Guthmiller, 499 N.W.2d 590 (N.D. 1993), where an anonymous person reported a drunk driver, described the vehicle and its location, officers then located the vehicle and drove up behind it at a stop sign where the vehicle stopped for a few seconds. The concurrence was careful to point out that the pause at the stop sign, without the anonymous tip, would not have been enough to trigger reasonable suspicion. See id. at 593.

¶ 21. These cases support the conclusion that something more was required in order to lawfully stop Fields' vehicle. No doubt Metoxen had a hunch that something was going on. But an investigative stop cannot be based on an "inchoate and unparticularized suspicion or 'hunch'. . . ." Terry v. Ohio, 392 U.S. 1, 27 (1968). The "Fourth Amendment requires at least a minimal level of objective justification for making the stop." Illinois v. Wardlow, 120 S.Ct. 673, 676 (2000).

¶ 22. The State, in its argument, relies on Metoxen's training and experience. In Brown v. Texas, 443 U.S. 47, 52 n.2 (1979), the Court observed that training and experience enables law enforcement officers to perceive and articulate meaning that would not arouse suspicion in an untrained observer. "But the fact that an officer is experienced does not require a court to accept all of his suspicions as reasonable, nor does mere experience mean an [officer's] perceptions are justified by the objective facts." State v. Young, 212 Wis. 2d 417, 429, 569 N.W.2d 84 (Ct. App. 1997) (quoting U.S. v. Buenaventura-Ariza, 615 F.2d 29, 36 (2nd Cir. 1980)). In this case, Metoxen drew inferences based on his experience with vehicles that had tried to evade him. However, Fields never tried to evade Metoxen. Metoxen was only anticipating evasion, so any inference is unsupported by Metoxen's experience.

¶ 23. Based on the totality of circumstances, we simply cannot conclude that Fields' slightly longer than normal stop at the stop sign, at that time and in that location, gave rise to the level of "specific and articulable facts" necessary to justify reasonable suspicion that Fields had committed or was committing an unlawful act. Because the stop was unlawful, Fields' suppression motion must be granted.

By the Court. — Judgment reversed and cause remanded with directions.

       Wisconsin Stat. § 343.44(1). All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       In State v. Haviland, 532 N.W.2d 767, 769 (Iowa 1995), the court concluded that the driver's conduct was not furtive where the driver "apparently could not see if the approaching vehicle was a police car." The court observed that it did "not know of any case law or other authority which suggests that a private citizen's avoidance of another private citizen as opposed to the police is indicative of criminal behavior." Id.


author: WEDEMEYER, P.J.

text:
    In re the Commitment of Eric Pletz: State of Wisconsin, Petitioner-Respondent, v. Eric Pletz, Respondent-Appellant.

    Court of Appeals

      No. 98-2455.

      Oral argument May 2, 2000.

    Decided September 12, 2000.

    2000 WI App 221
    (Also reported in 619 N.W.2d 97.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Michael J. Backes of Law Offices of Michael J. Backes, Milwaukee. There was oral argument by Michael J. Backes.

    On behalf of the petitioner-respondent, the cause was submitted on the brief of James E. Doyle, attorney general and Warren D. Weinstein, assistant attorney general. There was oral argument by Warren D. Weinstein.

    Before Wedemeyer, P.J., Schudson and Curley, JJ.

       Petition to review denied.

   WEDEMEYER, P.J.

¶ 1. Eric A. Pletz appeals from an order for commitment entered in a Wis. STAT. ch. 980 proceeding after a jury found he was a "sexually violent person," as that term is used in Wis. STAT. § 980.01(7). He claims that: (1) the evidence was insufficient to support the jury's finding that he was a sexually violent person; (2) the jury was improperly instructed regarding the unanimity requirement; (3) the trial court erred in refusing Pletz's request to strike certain testimony as a discovery sanction; and (4) the trial court erroneously exercised its discretion in admitting hearsay. Because the evidence was sufficient to support the jury's finding; because the trial court did not erroneously exercise its discretion when it instructed the jury; because Pletz waived his right to challenge the allegedly improper testimony; and because the admission of alleged hearsay constituted harmless error, we affirm.

I. BACKGROUND

¶ 2. In January 1993, Pletz was convicted of second-degree sexual assault of a child. The victim was seven-year-old Valerie S. Pletz was sentenced to five years in prison. In August 1997, the State filed a petition, pursuant to Wis. Stat. ch. 980, alleging that Pletz had been previously convicted of a sexually violent offense, that he was within ninety days of release, and that he suffered from a mental disorder, which made it substantially probable that he would commit future acts of sexual violence.

¶ 3. A probable cause hearing was conducted, where Dr. Robert Wheeler opined that Pletz had the mental disorder, pedophilia, which predisposed him to commit acts of sexual violence and created a substantial risk that he would reoffend. The trial court found probable cause.

¶ 4. A jury trial was held in February 1998. The State presented testimony from probation officer Michele Mitchem and two expert psychologists, Dr. Wheeler and Dr. Craig Monroe. Both psychologists testified that Pletz suffered from pedophilia and was substantially likely to reoffend. The defense presented testimony from two expert psychologists, Dr. Michael Kotkin and Dr. Diane Lytton. The defense psychologists testified that Pletz was not a pedophile but, rather, that he suffered from pervasive developmental disorder, which did not qualify as a mental disorder defined in Wis. Stat. § 980.01(2). The defense psychologists opined that Pletz's mental disorder was not one that made it substantially probable that he would reoffend.

¶ 5. The jury found that Pletz was a "sexually violent person." The trial court ordered that Pletz be committed to institutional care in a secure mental health facility. Pletz now appeals.

II. DISCUSSION

A. Insufficient Evidence.

¶ 6. Pletz claims that the evidence was insufficient to support the jury's finding that he was a "sexually violent person." We disagree.

¶ 7. Our standard of review on this issue requires us to reverse only if the evidence, viewed in the light most favorable to the commitment order, is so insufficient in probative value and force that it can be said, as a matter of law, that no trier of fact, acting reasonably, could have found the elements necessary for commitment beyond a reasonable doubt. See State v. Kienitz, 227 Wis. 2d 423, 434, 597 N.W.2d 712 (1999).

¶ 8. A "sexually violent person" is:

[A] person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect or illness, and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.

Wis. Stat. § 980.01(7). Pletz does not dispute that he satisfies the first portion of this definition — that he is a person who has been convicted of a sexually violent offense. He quarrels, however, with the second portion of the definition — that he has a mental disorder that makes it substantially probable that he will reoffend. He argues that there is insufficient evidence to support this portion of the definition.

¶ 9. Pletz argues that his expert psychologists, Dr. Kotkin and Dr. Lytton, were more credible because they both had met with him, and Dr. Lytton has had more experience in diagnosing disabled persons. He also contends that because this case was tried before the courts defined the term "substantially probable" to mean "much more likely than not" to occur, State v. Curiel, 227 Wis. 2d 389, 401, 597 N.W.2d 697 (1999), we should also examine the testimony of the experts to determine whether their testimony was proffered using the proper standard. We reject Pletz's contentions and conclude that there is sufficient evidence in the record to support the jury's verdict.

¶ 10. The State presented the testimony of probation agent Mitchem. She testified to the chronology of Pletz's criminal offenses. On September 5, 1989, Pletz assaulted Heather R. On September 30, 1989, Pletz assaulted Tammy M. In December 1989, Pletz was adjudicated delinquent for the former offense and the latter offense was read-in for sentencing purposes. Pletz was discharged in June 1992 and, in August 1992, he was arrested for the sexual assault of Valerie. Mitchem also testified that Pletz admitted he had a problem, needed treatment and could not control himself.

¶ 11. Dr. Wheeler testified that he conducted a ch. 980 evaluation of Pletz in the spring of 1996, which involved reviewing the entire file, talking to psychologists at the institutions that had housed Pletz, reviewing clinical reports, and interviewing Pletz. Dr. Wheeler diagnosed Pletz as suffering from pedophilia, alcohol abuse, borderline intellectual functioning, and anti-personality disorder. Dr. Wheeler defined pedophilia for the jury and testified that the assaults of Heather and Valerie satisfied the definition. Dr. Wheeler also reviewed for the jury various reports in Pletz's file from treating psychologists, pointing out that only one of the many other psychologists diagnosed him as suffering from pervasive developmental disorder. The sole psychologist who reached that conclusion indicated a "probable pervasive developmental disorder," but also opined that Pletz possibly suffered from pedophilia.

¶ 12. Dr. Wheeler also testified that there was a substantial probability that Pletz would reoffend if released because he refused to participate in treatment. Dr. Wheeler defined substantial probability as "ample or considerable probability."

¶ 13. The State also called Dr. Monroe to testify. Dr. Monroe diagnosed Pletz as suffering from pedophilia, alcohol abuse, and a borderline level of intelligence. Dr. Monroe based his evaluation on a review of the file and testified that it was substantially probable that Pletz, who refused to participate in treatment, would reoffend if released. Dr. Monroe indicated that he understood the term substantially probable to mean, "much more likely than not."

¶ 14. This evidence is sufficient to support the jury's verdict. Although Dr. Wheeler did not use the precise definition of substantial probability set forth in Curiel, this does not affect our analysis. We must view the evidence in the light most favorable to the commitment order. Under this standard of review, we cannot say that no trier of fact, acting reasonably, could find that Pletz was a sexually violent person after hearing the testimony of these two psychologists.

¶ 15. Pletz argues that the two psychologists who testified on his behalf offered more credible testimony, and that neither one diagnosed Pletz as suffering from pedophilia or any other mental disorder which would satisfy the definition of a sexually violent person. The fact that this case presented a "battle of the experts" does not alter our conclusion that the jury was presented with sufficient evidence to support the verdict it reached. The jury assessed the credibility of the expert witnesses and reached a conclusion adverse to Pletz. The testimony presented by the State's witnesses is sufficient to uphold the jury's verdict despite the fact that the defense presented testimony from expert witnesses who disagreed.

B. Unanimity Instruction.

¶ 16. Pletz next contends that the trial court erred when it instructed the jury with regard to unanimity. At the close of evidence, the trial court charged the jury with the following pertinent instructions:

The second fact that must be established is that Eric Pletz has a mental disorder. Mental disorder means a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence.
The condition must be a clinically significant behavioral or psychological symptom or pattern that occurs in an individual and must be associated with a current state of distress or impaired functioning or with a significant risk of pain, death or loss of freedom. Disorders do not include merely deviant behavior that conflict[s] with prevailing societal mores.
You are not bound by medical labels, definitions or conclusions as to what is or is not a mental disorder. Acts of sexual violence means acts which would constitute sexually violent offenses. For purpose of this trial, a sexually violent offense means the committing, solicitation, conspiracy or attempt to commit any of the following offenses: first degree sexual assault of a child, second degree sexual assault of a child, child enticement, first degree sexual assault, and second degree sexual assault.
Not all persons who commit sexually violent crimes can be diagnosed as suffering from mental disorder nor are all persons with a mental disorder predisposed to commit sexually violent offenses.
Information has been submitted that Eric Pletz committed other sexually violent offenses before committing the second degree sexual[ ] assault of a child for which he was convicted in 1993. This evidence alone is not sufficient to establish that Eric Pletz has a mental disorder. Before you may find that Eric Pletz has a mental disorder, you must be satisfied beyond a reasonable doubt from all the evidence in this case.
The third fact that must be established is that Eric Pletz is dangerous to others because he has a mental disorder which creates a substantial probability that he will engage in acts of sexual violence.
If you are satisfied beyond a reasonable doubt that Eric Pletz has been convicted of a sexually violent offense, that he has a mental disorder, and that he is dangerous to others because the mental disorder creates a substantial probability that he will engage in acts of sexual violence, you should find that Eric Pletz is a sexually violent person.
If you are not so satisfied, you must not find that Eric Pletz is a sexually violent person.
In reaching your verdict, examine the evidence with care and caution. Act with judgment, reason, and prudence. The law presumes that Eric Pletz is not a sexually violent person. Furthermore, Eric Pletz does not have to prove anything. The burden is on the State to convince you beyond a reasonable doubt that Eric Pletz is a sexually violent person.
This is a Chapter 980 case. Therefore, before the jury may return a verdict which may legally be received, such verdict must be reached unanimously. In a Chapter 980 case, all twelve jurors must agree in order to arrive at a verdict.

During deliberations, the jury sent a question to the trial court asking, "Do we need to decide which specific mental disorder Mr. Pletz has in order to decide whether or not it predisposes him to sexual violent offense?" The trial court answered the question:

The jury must be unanimous that Eric Pletz has a "Mental Disorder" as that term is defined in the jury instruction. You are not bound by medical labels, definitions or conclusions as to what is or is not a mental disorder. Further, although you must all agree that Eric Pletz has a "Mental Disorder" you need not be unanimous as to which "Mental Disorder."

¶ 17. Pletz argues the jury's question implied that some jurors believed the State's experts who diagnosed Pletz with pedophilia, and that other jurors believed the defense experts who diagnosed Pletz with pervasive developmental disorder. Pletz contends that the trial court's answer to the question violated his rights because it allowed some of the jurors to erroneously conclude that pervasive developmental disorder can support a finding that he was a sexually violent person. We are not persuaded. A trial court is afforded great latitude when giving jury instructions. See State v. Lenarchick, 74 Wis. 2d 425, 455, 247 N.W.2d 80 (1976). We review challenges to jury instructions under the erroneous exercise of discretion standard. See id.

¶ 18. The jury must agree that Pletz had a mental disorder that predisposes him to commit acts of sexual violence. The State argues that the specific mental disorder is akin to the specific way in which one commits a crime; it is not an element of the crime. We agree. Wisconsin has already determined that unanimity is not required with regard to the mode of committing robbery, see Manson v. State, 101 Wis. 2d 413, 304 N.W.2d 729 (1981) (because robbery statute creates only a single offense with alternative modes of commission, jury unanimity as to what alternative mode used is not required), or the manner in which a defendant commits a crime, see State v. Holland, 91 Wis. 2d 134, 144, 280 N.W.2d 288 (1979) (jury unanimity is not required with respect to the manner in which the defendant participates in the crime: direct commission, or aiding and abetting).

¶ 19. "Unanimity is required only with respect to the ultimate issue of the defendant's guilt or innocence of the crime charged, and unanimity is not required with respect to the alternative means or ways in which the crime can be committed." Holland, 91 Wis. 2d at 143. Although ch. 980 cases do not involve "guilt or innocence" or the "ways in which the crime can be committed," the general unanimity principle applies. Here, the jury must unanimously agree that Pletz suffers from a "mental disorder" that predisposes him to commit acts of sexual violence. See State v. Adams, 223 Wis. 2d 60, 67-71, 588 N.W.2d 336 (Ct. App. 1998). The statute and the jury instructions repeatedly refer to "a mental disorder" without requiring its exact definition or specification. See id. The jury was instructed that it must find that Pletz suffers from a mental disorder that predisposes him to engage in sexually violent acts. The jury is presumed to follow the instructions. See State v. Truax, 151 Wis. 2d 354, 362, 444 N.W.2d 432 (Ct. App. 1989). As long as all of the jurors agreed that Pletz suffered from such mental disease, unanimity requirements are satisfied, even if jurors disagree as to which mental disease predisposes the defendant to recidivism. See generally Adams, 223 Wis. 2d at 67-71. Accordingly, we conclude that the trial court's instruction to the jury here did not violate the unanimity requirement.

C. Expert Testimony.

¶ 20. Pletz next contends that the trial court erroneously exercised its discretion in allowing testimony from the State's expert, which was not disclosed to him during discovery. Pletz argues that the trial court should have struck Dr. Monroe's trial testimony regarding a psychological screening instrument called the R.R.A.S.O.R., which was used to evaluate Pletz, because this evaluation was not disclosed during Dr. Monroe's deposition or in his report. The State responded that it was unaware of Dr. Monroe's R.R.A.S.O.R. evaluation until the day Dr. Monroe arrived at the courthouse to testify, and that Dr. Monroe explained he had not completed this analysis until after his deposition. The trial court found, therefore, that the State did not violate any discovery rules. The State also argues that Pletz's objection to Dr. Monroe's R.R.A.S.O.R testimony was untimely because he did not object and move to strike at the time the challenged testimony began. Rather, Pletz waited nnt.il the following day to object to this evidence.

¶ 21. A trial court has discretion to impose sanctions for discovery abuses. See Paytes v. Kost, 167 Wis. 2d 387, 393, 482 N.W.2d 130 (Ct. App. 1992). An objection must be made to the introduction of evidence as soon as a party is aware of its objectionable nature. See Caccitolo v. State, 69 Wis. 2d 102, 113, 230 N.W.2d 139 (1975). If a party fails to make a timely objection, the party waives his or her right to contest that evidence. See id. We conclude that, under the facts presented here, the State did not commit any discovery violation; and, even if the State had violated the supplemental discovery rules, Pletz waived his right to object to Dr. Monroe's testimony on the R.R.A.S.O.R. test when he failed to immediately object and seek an adjournment.

¶ 22. It is undisputed that this information was not available at the time of Dr. Monroe's deposition, and that the State did not know of the new information until the day Dr. Monroe was to testify. The State immediately advised the defense of the new information and provided the defense with copies of the written R.R.A.S.O.R. scoring, together with Dr. Monroe's conclusions.

¶ 23. Dr. Monroe began his testimony at approximately 4:00 p.m. on February 17, 1997, and testified until approximately 5:30 p.m. that day. Although Dr. Monroe testified with regard to the new information, Pletz made no objection. Pletz did not object to, or raise the issue of, a discovery violation until the following morning. At that time, Pletz argued that the State failed to supplement Dr. Monroe's deposition with the new information and that, as a sanction for the violation, Pletz requested that the court strike Dr. Monroe's testimony regarding the new information. The trial court found that there was no discovery violation and it denied Pletz's request to strike the testimony.

¶ 24. Wisconsin Stat. § 804.01(5)(b) requires a party to "seasonably [supplement] a prior response if the party obtains information . . . [that] the party knows ... was incorrect when made, or ... knows that the response though correct when made is no longer true." During Dr. Monroe's deposition, Pletz inquired about whether any psychological testing had been performed and whether any actuarial testing had been conducted. Dr. Monroe testified during the deposition that he had not performed any such tests. The reason Dr. Monroe did not refer to R.R.A.S.O.R. during his deposition, is because the scientific study disclosing this profile was published in psychological literature after Dr. Monroe's deposition. In other words, the R.R.A.S.O.R. analysis only became available subsequent to Dr. Monroe's deposition, and Dr. Monroe did not apply this analysis to Pletz until shortly before he testified.

¶ 25. Under such circumstances, we agree with the trial court that the information did not constitute a discovery violation. The challenged information was new, and the State disclosed the information to Pletz as soon as it discovered it. Because there was no discovery violation, the trial court properly denied Pletz's request to strike Dr. Monroe's testimony regarding the R.R.A.S.O.R. analysis.

¶ 26. In addition, we conclude that Pletz waived his right to appellate review of this evidence by failing to make a timely objection. Pletz was provided with the new information before Dr. Monroe's testimony. No objection was made before Dr. Monroe's testimony or during the discussion of the R.R.A.S.O.R. analysis. In addition, when testimony for the day had been completed and the jury was dismissed, the trial court asked counsel if there were any additional matters that needed to be addressed. At this time, Pletz’s counsel placed on the record his objection to a separate portion of Dr. Monroe's testimony, which is discussed in the next section of this opinion. Still, no objection was raised regarding the R.R.A.S.O.R. testimony. It was not until the following morning that Pletz raised the issue of a discovery violation for failing to "seasonably" disclose the R.R.A.S.O.R. analysis. We conclude that, under the circumstances, the objection was not timely and the trial court was precluded from granting appropriate relief to Pletz.

D. Admission of Hearsay.

¶ 27. Pletz also contends that the trial court erroneously exercised its discretion when it allowed into evidence letters that Dr. Monroe received from members of the DSM-IV committee. The State responds that these letters were properly admitted because Dr. Monroe reasonably relied on the letters in formulating his opinion.

¶ 28. The two letters were replies to a letter authored by Dr. Monroe's partner, Dr. Doren. Dr. Doren's letter posed the question to the DSM-IV committee regarding whether a sexual assault committed as a juvenile constitutes evidence of pedophilia when the juvenile commits a second assault after attaining an age greater than sixteen years. The letters were pertinent to this case because Pletz committed two of the three sexual assaults when he was fourteen years old. There was a dispute at trial as to whether the juvenile incidents could be relied on in diagnosing Pletz with pedophilia because one of the diagnostic criteria for pedophilia generally requires that the perpetrator be older than sixteen years.

¶ 29. Pletz argues that the letters admitted are not a type reasonably relied upon by an expert and therefore constituted inadmissible hearsay. Our review on evidentiary issues is deferential and we will not reverse a trial court's decision unless it erroneously exercised its discretion. See State v. Peters, 192 Wis. 2d 674, 685, 534 N.W.2d 867 (Ct. App. 1995). Wisconsin Stat. § 907.03 permits an expert to testify regarding the bases of his or her opinion if the bases are of "a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Id. The letters at issue here are not "a type reasonably relied upon by experts in the particular field." The DSM-IV is the definitive reference for mental health professionals, and is the product of numerous professional experts in the field who have come together to draft and revise diagnostic criteria to reflect the consensus of the profession. The letters relied on here, although authored by members of the DSM-IV committee, are isolated opinions given in response to hypothetical questions. Therefore, we conclude that the letters do not satisfy the standard enunciated above, and therefore should not have been admitted. However, we conclude that admission of the two letters constituted harmless error.

¶ 30. The standard of review under which we determine harmless error "is not whether some harm has resulted but, rather, whether the appellate court in its independent determination can conclude there is sufficient evidence, other than the purportedly inadmissible evidence, that would convict the defendant beyond a reasonable doubt." State v. Van Straten, 140 Wis. 2d 306, 318-19, 409 N.W.2d 448 (Ct. App. 1987). There is sufficient evidence in the record here to sustain the jury's determination that Pletz is a sexually violent person, even without the inadmissible letters.

¶ 31. In order to so find, the jury was required to conclude that: (1) Pletz had been convicted of a sexually violent offense; (2) Pletz had a requisite mental disorder; and (3) Pletz was dangerous to others because the mental disorder created a substantial probability that he would engage in acts of sexual violence. The letters address the issue of whether Pletz's first offense qualified to satisfy the pedophile diagnosis because the first offense occurred before he reached sixteen years of age. The first offense related to the sexual assault of four-year-old Heather R. when Pletz was fourteen years old. The DSM-IV manual suggests that for sexual assaults to support a diagnosis of pedophilia, the offender should be at least sixteen years of age, and the victim has to be at least five years younger. Pletz argued at trial that his first offense did not qualify because he was not yet sixteen years old. The letters, however, were not the only evidence to refute Pletz's position.

¶ 32. Dr. Wheeler testified that the first offense qualified for the pedophile diagnosis. Dr. Kotkin, a witness called by Pletz, agreed that the first offense qualified for the pedophile diagnosis. Accordingly, the letters from two additional psychologists, which confirm that the pre-sixteen offense qualifies as a pedophilic incident, were simply cumulative to the actual testimony of expert witnesses at trial. Thus, even if the letters were excluded, the jury would still have been able to find that Pletz was a sexually violent person beyond a reasonable doubt.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       R.R.A.S.O.R. is the acronym for Rapid Risk Assessment for Sexual Offense Recidivism. The R.R.A.S.O.R. test is a statistical profile that separates low-risk offenders from high-risk offenders in terms of recidivism, in order to estimate which individuals are likely to reoffend.

       Here, if any breach of disclosure had occurred, the appropriate remedy would have been the granting of an adjournment to allow Pletz to investigate, research and consult with his experts to rebut the R.R.A.S.O.R. testimony newly proffered by Dr. Monroe. This remedy was neither requested by counsel, nor could it have been effectively employed because counsel waited too long to object. See Wold v. State, 57 Wis. 2d 344, 351, 204 N.W.2d 482 (1973) ("The penalty for breach of disclosure should fit the nature of the proffered evidence and remove any harmful effect on the defendant.").

       The DSM-IV is the Diagnostic and Statistical Manual and is published by the American Psychiatric Association. It is widely used to diagnose psychiatric illnesses.