author: VERGERONT, J.

text:
    Sharal Y. Doepke-Kline, Petitioner-Appellant, v. Labor and Industry Review Commission and SBC Communications, Inc., Respondents-Respondents.
    Court of Appeals

      No. 2005AP106.

      Submitted on briefs June 14, 2005.

      Decided August 18, 2005.

    2005 WI App 209
    (Also reported in 704 N.W.2d 605.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of John S. Williamson, Jr., Appleton.
    On behalf of the respondent-respondent, Labor and Industry Review Commission, the cause was submitted on the brief of David C. Rice, asst, attorney general, and Peggy A. Lautenschlager, attorney general.

    On behalf of the respondent-respondent, SBC Communications, Inc., the cause was submitted on the brief of Lisa M. Bergersen, Lindner & Marsack, S.C., Milwaukee.
    Before Lundsten, PJ., Vergeront and Higginbotham, JJ.

       Petition to review denied 11-11-05.

   VERGERONT, J.

¶ 1. This appeal concerns the claim of Sharal Doepke-Kline that her employer violated the Wisconsin Fair Employment Act (WFEA) by discharging her because of her asthma, refusing to accommodate her disability, and discriminating against her in the terms and conditions of her employment because of her disability. The Labor and Industry Review Commission dismissed her claim, concluding that she did not demonstrate she was an individual with a disability within the meaning of Wis. Stat. § 111.32(8), and the circuit court affirmed. Doepke-Kline contends on appeal that the Commission erred in deciding that Chicago, Milwaukee, St. Paul & Pacific Railway Co. v. DILHR, 62 Wis. 2d 392, 215 N.W.2d 443 (1974), did not determine that a diagnosis of asthma alone establishes a disability under the WFEA; consequently, Doepke-Kline asserts, the Commission erred in deciding she had not established a disability. We conclude that Chicago, Milwaukee does not hold that a diagnosis of asthma alone establishes a disability within the meaning of the WFEA. We also conclude that the Commission applied the correct legal standard in deciding that Doepke-Kline failed to establish she had a disability within the meaning of § 111.32(8). We therefore affirm.

BACKGROUND

¶ 2. Doepke-Kline began working for SBC Communications, Inc., in February 1989. In 1997 she began working at its customer call operations center in Appleton as a service representative. Her position involved handling calls from residential customers related to orders and billing issues; she was also required to recommend and sell products and services to customers.

¶ 3. SBC has an attendance policy under which there is a threshold for "incidental absences" in a rolling twelve-month period. An employee who exceeds that threshold is considered to have unsatisfactory attendance and a progressive discipline begins at that point. Incidental absences do not include certain types of absences, among others, Family and Medical Leave Act (FMLA) absences, absences under the company's sickness and accidental disability benefit plans, and vacations. In April 1999, SBC initiated a new attendance program, which was explained to all employees, including Doepke-Kline. As of August 1999, Doepke-Kline had accumulated a sufficient number of incidental absences so that, under the new attendance program, she should have been at the third step of discipline, which is a suspension. However, because of the number of her absences that year, there was confusion regarding her disability leave time and her FMLA time; as a result, no disciplinary steps were taken and her attendance status was maintained at a satisfactory level. At that time the attendance manager met with Doepke-Kline and explained the status of her attendance record and the fact that she would be progressed in the disciplinary system if she were to incur any further incidental absences.

¶ 4. Doepke-Kline did incur further incidental absences and was subject to progressive discipline, beginning with a written warning for excessive incidental absences in October 1999. She was eventually terminated for unsatisfactory attendance in April 2000. The various causes of the absences between April 1999 and March 27, 2000, that SBC considered to be a violation of its attendance program, were, as reported by Doepke-Kline, stomach flu, "sick," back pain, asthma, pneumonia and a cold. The March 27, 2000 incident involved being more than one hour late for her shift due to an asthma attack.

¶ 5. Doepke-Kline filed a complaint with the Department of Workforce Development, Equal Rights Division, alleging that SBC violated the WFEA by discharging her because of a disability, asthma; refusing to reasonably accommodate her disability; and discriminating against her in the terms and conditions of employment because of her disability. After a hearing the examiner issued a written decision dismissing her claims. Doepke-Kline appealed to the Commission and the Commission affirmed the examiner's decision, with some modifications and additions to the findings of facts and conclusions of law. The Commission concluded that Doepke-Kline had not sustained her burden of proving that she had been discriminated against because of her disability.

¶ 6. In its decision the Commission adopted the examiner's finding that Doepke-Kline's termination was in accordance with SBC's attendance guidelines. The Commission adopted as modified or added the following findings relating to her asthma:

5. Doepke-Kline's claimed disability is asthma. Doepke-Kline, who was age 35 at the time of the hearing, alleges that she has had asthma since she was 16. Over the years Doepke-Kline's physicians have prescribed inhalers, a nebulizer and occasionally Pred-nisone (a steroid), to treat her asthma.
40. In 1997 .. ., Doepke-Kline was seen by Jordan Fink, M.D., a specialist in allergy and immunology. Dr. Fink primarily relied on Doepke-Kline's self-reported symptoms and health history in concluding that she had been diagnosed and treated for asthma over a period of 13 years.
41. Richard Effros, M.D., a pulmonary specialist, examined certain of Doepke-Kline's medical records, including Dr. Fink's report of his 1997 examination, at [SBC's] request. Dr. Effros opined that asthma can be a very mild illness or a life-threatening problem; there is no essential difference between receiving a nebulizer treatment at home or at a hospital. Doepke-Kline's medical records did not establish she had bronchial asthma; there was no record that a total pulmonary function test had ever been administered; the results of the spiratometry test administered in 1997 appear to demonstrate that Doepke-Kline had mild restriction of her breathing passages and that she was not putting forth her full effort in participating in the tests; and his conclusion, based on the medical records that he reviewed, was that Doepke-Kline suffered from chronic bronchitis probably due to her lengthy history of smoking cigarettes.
41. [sic] Doepke-Kline explains that her asthma restricted her life activities because she became incapacitated when she had a severe attack.

¶ 7. In its opinion the Commission considered the definition of "disability" in Wis. Stat. § 111.32(8)(a): "a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work." Relying on case law construing this definition, the Commission stated that Doepke-Kline had to prove that she had an impairment that places a substantial limitation on life's normal functions or on a major life activity or limits her capacity to work at her job. The Commission concluded the evidence did not establish that Doepke-Kline's pulmonary condition — whether the proper diagnosis is asthma or chronic bronchitis — met this standard. In particular, the Commission determined the occasional absences that she self-reported as attributable to asthma were not sufficient to establish that her pulmonary condition substantially limited normal life functions or a major life activity or limited her capacity to work. The Commission rejected Doepke-Kline's argument that under Chicago, Milwaukee a diagnosis of asthma alone supports a conclusion that Doepke-Kline is disabled. The Commission first observed that the evidence placed a diagnosis of asthma for Doepke-Kline "in serious question." But even if that diagnosis were established, the Commission stated, Chicago, Milwaukee does not hold that every diagnosis of asthma constitutes a disability.

¶ 8. Doepke-Kline appealed the Commission's decision to the circuit court, which affirmed the decision.

DISCUSSION

¶ 9. On appeal from the circuit court's order, Doepke-Kline repeats her contention that the Commission erred in its reading of Chicago, Milwaukee. That case, Doepke-Kline asserts, holds that a diagnosis of asthma alone establishes a disability within the meaning of the WFEA, and the Commission is not free to disregard that holding.

¶ 10. On an appeal from a circuit court's order affirming or reversing an administrative agency's decision, we review the decision of the agency, not that of the circuit court, and our scope of review is the same as that of the circuit court. Target Stores v. LIRC, 217 Wis. 2d 1, 11, 576 N.W.2d 545 (Ct. App. 1998). We affirm the agency's findings of fact if there is credible and substantial evidence in the record upon which reasonable persons could rely to make the same findings. Id. Whether the facts as found by the Commission establish that Doepke-Kline is an individual with a disability under Wis. Stat. § 111.32(8) is a question of law. Hutchinson Tech., Inc. v. LIRC, 2004 WI 90, ¶ 10, 273 Wis. 2d 394, 682 N.W.2d 343. Although we generally review a question of law de novo, when the question of law involves the construction of a statute that an agency is charged with administering, we may give deference to the agency's construction. Target, 217 Wis. 2d at 13. The supreme court has held that the Commission's determination of whether an individual is disabled under § 111.32(8) is entitled to great weight deference. See Hutchinson Tech., 273 Wis. 2d 394, ¶ 10 n.6. Under that standard of review, we affirm the Commission's decision unless it directly contravenes a statute, is clearly contrary to legislative intent, or lacks a rational basis. Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, ¶ 28, 264 Wis. 2d 200, 664 N.W.2d 651.

¶ 11. Doepke-Kline asserts that we should not accord any deference to the Commission's decision, but instead review it de novo, because this court is in a better position than the Commission to interpret judicial rulings. The Commission and SBC respond that great weight deference is appropriate. Without resolving whether we should defer to an agency when the legal issue involves the interpretation of judicial rulings, we will review de novo whether the Commission's construction of Chicago, Milwaukee and other cases is correct.

¶ 12. In Chicago, Milwaukee, the employee was terminated after two weeks of employment with a railroad company. Based on the evidence that he was performing his work satisfactorily but was terminated on the recommendation of the company's doctor because of his history of asthma, the Department of Industry, Labor, and Human Relations determined that the employer had engaged in discrimination based on an alleged handicap. Chicago, Milwaukee, 62 Wis. 2d at 395. On appeal, the employer did not challenge the department's finding that the employee had been terminated because of his history of asthma. Id. at 396-97. The relevant issue before the court was whether "asthma or other physical disorders of the complainant constitute a handicap," the term used in Wis. Stat. § 111.32(5)(a) (1967). Chicago, Milwaukee, 62 Wis. 2d at 397. The term "handicap" was not defined in that statute and the employer urged the court to decide that it meant the employee was "incapacitated from normal remunerative occupation, an economic detriment to the normal employer and require[d] rehabilitative training." Id. at 397.

¶ 13. The Chicago, Milwaukee court viewed the employer's proposed definition as too restrictive. Id. at 397-98. The court noted with approval the dictionary definition of handicap: a "disadvantage that makes achievement unusually difficult; esp.: a physical difficulty that limits the capacity to work." Id. The court also noted a broader definition of handicap in another chapter of the statutes. Id. at 398. "In either case," the court stated, "it is our opinion that handicap as used in Sec. 111.32(5), Stats, must be defined as including such diseases as asthma which make achievement unusually difficult." Id. The court then went on to decide that the employer did not have a defense under § 111.32(5)(f) (1967), which allowed employers to refuse to hire or to terminate an employee who, because of a handicap, was unable to perform the job efficiently at the standards set by the employer.

¶ 14. Doepke-Kline relies on the Chicago, Milwaukee court's statement that "handicap ... must be defined as including such diseases as asthma which make achievement unusually difficult," 62 Wis. 2d at 398, arguing that this means asthma is a disease that always makes achievement unusually difficult. While this may be a reasonable reading of the sentence in isolation, the context of the sentence reveals another reading: that diseases such as asthma are handicaps if they make achievement unusually difficult. The context of the statement is that the court is rejecting the employer's proposed narrow definition of handicap, which, apparently in the court's view, would eliminate asthma under all circumstances from being a handicap.

¶ 15. Another significant aspect of context in Chicago, Milwaukee is that the employee there did not have an impairment that actually made achievement unusually difficult or affected his ability to perform his job, as the court's discussion of the lack of a defense under Wis. Stat. § 111.32(5)(f) (1967) makes clear: the termination, rather, was based on the employer's perceptions and the employee's medical history. With the later enactment of § 111.32(8) (1981-82), 1981 Wis. Laws, ch. 334, § 9, "handicapped individual" (now "individual with a disability") was defined to include not only a person who "has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work," para. (8)(a), but also a person who has a record of such an impairment or is perceived as having such an impairment. Paragraphs (8)(b) and (c). Without this statutory framework, the Chicago, Milwaukee court was attempting to define "handicap" to provide protection for someone who could perform the job satisfactorily but who was terminated because of a perception of impairment based on medical history. Thus, Chicago, Milwaukee is not addressing the issue that Doepke-Kline asserts it decided: whether, when a complainant asserts she has an impairment that makes achievement unusually difficult or limits the capacity to work, need she prove only the diagnosis of asthma?

¶ 16. Cases decided after Chicago, Milwaukee persuade us that Doepke-Kline must do more than prove that she has a diagnosis of asthma. In City of La Crosse Police & Fire Commission v. LIRC, 139 Wis. 2d 740, 760, 407 N.W.2d 510 (1987), the supreme court reviewed the four cases that had been decided under Wis. Stat. § 111.32(8) since 1979 — after Chicago, Milwaukee — and clarified "the analytical framework that ha[d] emerged from them." After observing that the burden is on the claimant to "establish that a particular physical condition constituted a handicap within the meaning of the [WFEA]," the court described a two-step analysis: First, the claimant must establish that there is a real or perceived impairment — with an impairment defined as "a real or perceived lessening or deterioration or damage to a normal bodily function or bodily condition, or the absence of such bodily function or such bodily condition." City of La Crosse, 139 Wis. 2d at 760-61. Second, the claimant must establish that such a condition actually makes or is perceived as making achievement unusually difficult or limits the capacity to work. Id. at 762. "Makes achievement unusually difficult" means there is a "substantial limitation on life's normal functions or a substantial limitation on a major life activity." Id. at 761. "[L]imits the capacity to work" refers to the particular job in question. Id. The court then reviewed each of the prior four cases it had identified to show that they fit into this framework, and then analyzed the evidence in the case before it using the same analysis. Id. at 762-64.

¶ 17. In Hutchinson Technology, the supreme court applied the analysis articulated in City of La Crosse. Hutchinson Tech., 273 Wis. 2d 394, ¶¶ 15-19. The Hutchinson Technology court concluded the claimant there established that her back pain, related to disc problems, met the standards under each step in the analysis.

¶ 18. The analysis articulated in City of La Crosse and applied more recently in Hutchinson Technology is not consistent with Doepke-Kline's reading of Chicago, Milwaukee. We think it is unlikely that the supreme court would establish an analysis that requires a claimant to prove specific facts with respect to the asserted impairment and its impact on the claimant, but nonetheless intend, without mentioning Chicago, Milwaukee, that one disease — asthma—be exempted from that analysis. We also observe that in Dairy Equipment Co. v. DILHR, 95 Wis. 2d 319, 328, 290 N.W.2d 330 (1980), the supreme court describes as follows the sentence in Chicago, Milwaukee on which Doepke-Kline relies: "This court has concluded that, in certain circumstances, a '... handicap as used in sec. 111.32(5), Stats., must be defined as including such diseases as asthma which make achievement unusually difficult.'" Dairy Equip. Co., 95 Wis. 2d at 328 (citation omitted, emphasis added). The addition of "in certain circumstances" suggests that the supreme court does not view its holding in Chicago, Milwaukee as establishing that in every case asthma is a handicap within the meaning of the statute.

¶ 19. When supreme court decisions appear to conflict, we are to harmonize them if we can; if we cannot, we are to follow the more recent decision. See Ambrose v. Cont'l Ins. Co., 208 Wis. 2d 346, 354-55, 560 N.W.2d 309 (Ct. App. 1997). We are satisfied that we can harmonize Chicago, Milwaukee with City of La Crosse by reading the former as holding that asthma can be a disability under the WFEA if the claimant establishes the elements articulated in City of La Crosse. We therefore conclude that this is the correct reading of Chicago, Milwaukee. The Commission arrived at this same interpretation of the case, and, thus, did not err in rejecting Doepke-Kline's argument that a diagnosis of asthma alone was sufficient to establish that she had a disability under Wis. Stat. § 111.32(8).

¶ 20. The Commission applied the analysis established in City of La Crosse in its determination that Doepke-Kline did not prove she was an individual with a disability under Wis. Stat. § 111.32(8). We conclude this is the correct standard. Doepke-Kline does not develop an argument that, if this is the correct standard, the Commission erred in concluding she was not disabled based on its factual findings. Nor does she develop an argument that the Commission's findings of fact are not supported by the requisite evidence. Accordingly, we conclude the Commission did not err in deciding that Doepke-Kline was not an individual with a disability. We therefore affirm the order of the circuit court.

By the Court. — Order affirmed.

       Wisconsin Stat. § 111.32(8) provides:
      (8) "Individual with a disability" means an individual who:
      (a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;
      (b) Has a record of such an impairment; or

        (c) Is perceived as having such an impairment.
      With certain exceptions, employers are prohibited from terminating employment and discriminating against any individual in terms, conditions or privileges of employment based on a disability. Wis. Stat. §§ 111.321, 111.322(1), 111.34. All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Doepke-Kline also contends on appeal that she was discharged because of her disability and her employer did not prove it could not reasonably accommodate her disability without imposing a hardship on the employer's business. Because we affirm the Commission's determination that Doepke-Kline did not establish she was an individual with a disability, we do not address these contentions.

       The facts related in paragraphs 2-4 are taken from the findings of the hearing examiner, as modified and adopted by the Commission.

       Doepke-Kline's complaint also alleged that SBC discriminated against her and discharged her in retaliation for making a complaint under the WFEA. The examiner dismissed these claims as well, and the Commission affirmed these rulings. Doepke-Kline does not challenge this aspect of the Commission's decision.

       We recognize that the Commission questioned the diagnosis of asthma, but we will accept Doepke-Kline's assertions that she had asthma and had been diagnosed with asthma in addressing her argument based on Chicago, Milwaukee, St. Paul & Pacific Railway Co. v. DILHR, 62 Wis. 2d 392, 215 N.W.2d 443 (1974).

       This definition later formed the basis for the definition now found in Wis. Stat. § 111.32(8). See Brown County v. LIRC, 124 Wis. 2d 560, 571, 369 N.W.2d 735 (1985).

        Brown County v. LIRC, 124 Wis. 2d 560, 369 N.W.2d 735 (1985); American Motors Corp. v. LIRC, 119 Wis. 2d 706, 350 N.W.2d 120 (1984); Dairy Equip. Co. v. DILHR, 95 Wis. 2d 319, 290 N.W.2d 330 (1980); Bucyrus-Erie Co. v. DILHR, 90 Wis. 2d 408, 280 N.W.2d 142 (1979).

       Although we have resolved the issue under Wisconsin law, we observe that courts deciding cases under the Federal Ameri cans With Disabilities Act (which provides that a disability includes "a physical or mental impairment that substantially limits one or more of the major life activities of such individual," 42 U.S.C. § 12102(2)(A)), are in general agreement that an individualized showing is required. See, e.g., Webb v. Clyde L. Choate Mental Health & Dev. Ctr., 230 F.3d 991, 998 (7th Cir. 2000) (claimant failed to establish that he suffered from a disability under ADA because he failed to present evidence that his asthma and other conditions substantially limited him in the major life activity of working); Jeffrey v. Ashcroft, 285 F. Supp. 2d 583, 589 (M.D. Pa. 2003) (whether particular impairment substantially limits a major life activity such as breathing requires an individualized assessment on a case-by-case basis); Crock v. Sears, Roebuck & Co., 261 F. Supp. 2d 1101, 1117 (S.D. Iowa 2003) (having an impairment in itself does not make one disabled for purposes of the ADA; claimants also need to demonstrate that the impairment limits a major life activity; a case-by-case analysis is required since an impairment that disables some individuals may not disable others); Faircloth v. Duke Univ., 267 F. Supp. 2d 470, 473 (M.D.N.C. 2003) (the determination of whether asthma is a disability is necessarily made on a case-by-case basis based on the facts presented to the court and such determinations are not suitably made at the motion to dismiss stage of a case); Bond v. Sheahan, 152 F. Supp. 2d 1055, 1063-66 (N.D. Ill. 2001) (asthma undoubtedly qualifies as a physical impairment, but some impairments may be disabling for particular individuals but not for others); Mayers v. Washington Adventist Hosp., 131 F. Supp. 2d 743, 749 (D. Md. 2001) (having asthma is not sufficient to demonstrate a disability under the ADA because claimant must also establish that her asthma and allergies substantially limit her ability to breath; this determination is made on a case-by-case basis taking into account corrective measures that may alleviate the severity of the symptoms); Henderson v. New York Life, Inc., 991 F. Supp. 527, 537-39 (N.D. Tex. 1997) (claimant has asthma but has not shown it substantially limits a major life activity); Castro v. Local 1199, Nat'l Health & Human Servs. Employees Union, 964 F. Supp. 719, 723 (S.D.N.Y. 1997) (individualized analysis particularly appropriate for disability claims relating to asthma because the severity of asthma varies a great deal); Hendler v. Intelecom USA, Inc., 963 F. Supp. 200, 207 (E.D.N.Y. 1997) (each disability determination must be made on a case-by-case basis; because one plaintiff with asthma is substantially limited in the major life activity of breathing does not mean that every plaintiff with asthma has a qualifying disability under the ADA and vice versa); MacLean v. State Dept. of Educ., 986 P.2d 903, 910-11 (Ariz. Ct. App. 1999) (whether claimant has a disability under the ADA is an individualized inquiry; asthma is a physical impairment but whether it substantially impairs the claimant's breathing is a matter of factual dispute on this record).


source: Caselaw Access Project

author: FINE, J.

license: Public Domain

text:
    Lana C. Wittig, Petitioner-Respondent, v. Brian K. Hoffart, Respondent-Appellant.
    Court of Appeals

      No. 2004AP1653.

      Submitted on briefs August 2, 2005.

      Decided August 23, 2005.

    2005 WI App 198
    (Also reported in 704 N.W.2d 415.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of David A. Nelson of Doherty Law Offices, S.C., of West Bend.

      On behalf of the petitioner-respondent, the cause was submitted on the brief of James K. Jaskolski of Jaskolski & Jaskolski, S.C., of Greenfield.
    Before Wedemeyer, EJ., Fine and Kessler, JJ.
   FINE, J.

¶ 1. Brian K. Hoffart appeals a domestic-abuse injunction in favor of Lana C. Wittig. See Wis. Stat. § 813.12. Hoffart and Wittig are married but estranged. Hoffart claims that the trial court erred in considering facts underlying an earlier domestic-abuse injunction entered against him on Wittig's petition that Wittig later had vacated. Hoffart also claims that there was insufficient evidence to support the trial court's conclusions that an injunction was warranted. We affirm.

I.

¶ 2. Hoffart and Wittig were married in early November, 2001. According to Wittig's testimony at the injunction hearing, Hoffart turned violent almost immediately, in January, 2002. She told the trial court that "he would always yell in my face in a very threatening way," and that the first time he hurt her was when he grabbed her "head and shook," causing her pain in her "new ear-piercing." According to her testimony, he continued his abuse until she moved out in early February, 2002, some three months after they were married:

He would push me down. He would drag me. He would physically txy to remove me out of the condo in the middle of the night. He would suffocate me with a pillow. He would put his hands around my neck. Verbal abuse. He would touch me inappropriately... [i]n a sexual manner.

She also testified that after she told him in early November, 2002, that she was pregnant with their child, they got into another argument and "he ended up by kind of sitting on me, and he had his hands around my neck ... squeezing my neck, because I was trying to leave, and he wouldn't let me leave."

¶ 3. Ultimately, she sought a domestic-abuse injunction, which was granted by a circuit court commissioner in December, 2002. Hoffart did not seek review of the injunction order. On April 18, 2003, the injunction was vacated on Wittig's request. She told the trial court at the hearing in this appeal that she agreed to the vacatur because her therapist had suggested it in order to facilitate their counseling sessions, and that she did not believe that she then needed to fear Hoffart because she thought that "[a]t that time he did not know where I lived." Wittig explained at the hearing on this appeal that she now wanted the trial court to issue a new injunction because Hoffart's sister told her that Hoffart had been stalking Wittig after April 18, 2003, and had broken into Wittig's apartment with keys he had taken from Wittig's purse when they both worked at the same hospital. Wittig also told the trial court that he had repeatedly threatened to kill her. Wittig said that Hoffart's threats scared her, explaining that "he said it many times before amongst other threats, and he has made good on his threats in the past, so I was definitely afraid of him and still continue to be." She admitted, however, that Hoffart never hit her after vacatur of the December, 2002, injunction on April 18, 2003, and that she did not call the police to report those threats.

¶ 4. Hoffart's sister also testified, albeit as, according to what she told the trial court, an unwilling witness whom Wittig had subpoenaed. She related how Hoffart told her that he had taken Wittig's keys from Wittig's locker at the hospital, and that she was with him one time when he went into Wittig's apartment alone when Wittig was not there. As for Hoffart's attitude toward Wittig, his sister recounted how he said that Wittig was "a 100-pound weakling and he'd peeled her off the door one day," commenting to her, as she related it, "look how little she is and look how big I am." She reflected that she wanted Hoffart to "get anger management" counseling.

¶ 5. Hoffart testified at the hearing and denied ever threatening or hurting Wittig except for the time when he grabbed her head and, according to him, inadvertently touched the sore spot where she had her ear pierced: "When I held her head in my hands, I was going to kiss her[,] actually. She had gotten a couple of months before a left ear-piercing that was not in the lobe . . . And it had taken a couple of months actually to heal. It had not been healing well." He also denied going into her locker at the hospital and taking her keys, or going into her apartment without her permission.

¶ 6. The trial court received into evidence two earlier injunction orders that had been entered against Hoffart. One was on the petition of a woman whom he had dated, and the other was on the petition of his son's mother.

¶ 7. As noted, the trial court granted Wittig's petition for a domestic-abuse injunction. It made extensive and comprehensive findings of fact in its oral decision. The trial court credited the testimony of both Wittig, which it called, "compelling," and Hoffart's sister. In contrast, it found Hoffart to be "[t]otally unworthy of belief." Specifically, as material to its decision to grant Wittig's petition, the trial court found that even though Hoffart had not hit Wittig after the April 18, 2003, vacatur of the December, 2002, domestic-abuse injunction, he "threatened to harm her, threatened to kill her multiple times since April 18th, 2003," and that they were the requisite "true threats," rather than mere hyperbole.

II.

¶ 8. The trial court issued the domestic-abuse injunction under Wis. Stat. § 813.12. As material here, the statute provides that "[a] judge or circuit court commissioner may grant an injunction" if he or she finds, "[a]fter hearing. . . reasonable grounds to believe that the respondent has engaged in, or based upon prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner." Sec. 813.12(4)(a)3. "Domestic abuse," is defined by the statute as:

[A]ny of the following engaged in by an adult family member or adult household member against another adult family member or adult household member, by an adult caregiver against an adult who is under the caregiver's care, by an adult against his or her adult former spouse, by an adult against an adult with whom the individual has or had a dating relationship, or by an adult against an adult with whom the person has a child in common:
1. Intentional infliction of physical pain, physical injury or illness.
2. Intentional impairment of physical condition.
3. A violation of s. 940.225 (1), (2) or (3).
5. A violation of s. 943.01, involving property that belongs to the individual.
6. A threat to engage in the conduct under subd. 1., 2., 3., or 5.

Sec. 813.12(l)(am). Wisconsin Stat. § 940.225(1), (2) or (3) makes criminal sexual assault in the first, second, and third degrees, respectively. Wisconsin Stat. § 943.01 makes criminal the intentional "damage to any physical property of another without the person's consent." The domestic-abuse-injunction statute also provides:

In determining whether to issue an injunction, the judge or circuit court commissioner shall consider the potential danger posed to the petitioner and the pattern of abusive conduct of the respondent but may not base his or her decision solely on the length of time since the last domestic abuse or the length of time since the relationship ended.

Sec. 813.12(4)(aj) (emphasis added).

¶ 9. As we have seen, in issuing the domestic-abuse injunction against Hoffart, the trial court determined that his threats against Wittig were, based on what it determined was Hoffart's pattern of abusive conduct, "true threats" and justified issuance of the injunction under the definition of domestic abuse under Wis. Stat. § 813.12(l)(am)6. Hoffart claims on this appeal that the trial court should not have considered any of his acts against Wittig that underlay the December, 2002, domestic-abuse injunction, which, as we have seen, was vacated on April 18, 2003, at Wittig's request. Hoffart also contends that there was insufficient evidence for the trial court to conclude that his threats were "true threats." We address these contentions in turn.

A. Acts underlying the December.; 2002, domestic-abuse injunction.

¶ 10. Hoffart argues that Wittig's successful request on April 18, 2003, to vacate the December, 2002, domestic-abuse injunction prevented the trial court, under an issue-preclusion theory, from considering any of the facts underlying that domestic-abuse injunction. Whether issue-preclusion applies is a question of law subject to our de novo review. See Michelle T. v. Crozier, 173 Wis. 2d 681, 686-687, 495 N.W.2d 327, 329 (1993) (application of issue preclusion is subject to appellate court's de novo review). We agree with the trial court's reasoned analysis that issue-preclusion is not implicated here. Whether the acts underlying the December, 2002, domestic-abuse injunction are admissible turns on whether they are relevant: (1) to a prediction of what Hoffart would do to Wittig if the domestic-abuse injunction were not granted, and (2) to whether Hoffart's post-April 18, 2003, threats against Wittig were "true threats" as that phrase is delineated by State v. Perkins, 2001 WI 46, ¶ 29, 243 Wis. 2d 141, 158-159, 626 N.W.2d 762, 770, which we discuss in part B below.

¶ 11. "Issue preclusion refers to the effect of a judgment in foreclosing relitigation in a subsequent action of an issue of law or fact that has been actually litigated and decided in a prior action." Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723, 727 (1995). The only possible effect Wittig's April 18, 2003, request to have the December, 2002, domestic-abuse injunction vacated could have on any subsequent litigation is to establish that she sought vacatur for the reasons she testified to. Her request certainly did not wipe out the historical facts that underlay her petition seeking the domestic-abuse injunction or the circuit court commissioner's decision to grant it. Significantly, as the trial court recognized, Wittig's current petition did not seek to have the December, 2002, domestic-abuse injunction reinstated. Rather, her petition sought the issuance of a new injunction, based on things that Hoffart did to her after April 18, 2003. Whether the pre-April 18, 2003, evidence was admissible in connection with Wittig's petition for a domestic-abuse injunction turns on the purposes for which it was offered and used.

¶ 12. Admission of evidence is vested in the trial court's reasoned discretion. State v. Sullivan, 216 Wis.2d 768, 780, 576 N.W.2d 30, 36 (1998). "An appellate court will sustain an evidentiary ruling if it finds that the circuit court examined the relevant facts; applied a proper standard of law; and using a demonstrative rational process, reached a conclusion that a reasonable judge could reach." Id., 216 Wis. 2d at 780-781, 576 N.W.2d at 36. There are two applicable legal principles in play here.

¶ 13. First, Wis. Stat. Rule 904.04(2) bars the use of propensity evidence to show that a person's character makes it likely that he or she did something in conformity with that character. La Crosse County Dep't of Human Servs. v. Tara P., 2002 WI App 84, ¶ 18, 252 Wis. 2d 179, 189, 643 N.W.2d 194, 199 (Rule against admitting propensity evidence is designed to prevent the fact-finder from using a person's propensity to decide "whether a party committed an alleged act."). Thus, Rule 904.04(2) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Rule 904.04(2) does not, however, prevent the fact-finder from considering a person's other acts in order to determine whether that person will do something in the future. Tara P., 2002 WI App 84, ¶ 18, 252 Wis. 2d at 189, 643 N.W.2d at 199 (in a termination-of-parental-rights case, a "parent's relevant character traits and patterns of behavior" not excluded by Rule 904.04(2)); State v. Wolfe, 2001 WI App 136, ¶ 36, 246 Wis. 2d 233, 255, 631 N.W.2d 240, 251 (in a sexual-predator-commitment case under Wis. Stat. ch. 980, arson and institutional misconduct admissible to show likely future behavior). Significantly, as we have seen, the legislature has commanded judges and circuit court commissioners to consider the respondent's "pattern of abusive conduct" in determining whether to issue a domestic-abuse injunction. Wis. Stat. § 813.12(4)(aj).

¶ 14. Second, Wis. Stat. Rule 904.04(2) also did not prevent the trial court from considering whether Hoffart's post-April 18, 2003, threats against Wittig were innocuous expressions of frustration on the one hand, or were serious "true threats" on the other. See Rule 904.04(2) (other acts may be admitted to show a person's intent).

¶ 15. The trial court recognized that the acts underlying the December, 2002, domestic-abuse injunction were relevant both to predict Hoffart's future conduct vis-á-vis Wittig, and, also, to gauge the seriousness of his threats against her. The trial court also applied the balancing required by Wis. Stat. Rule 904.03 and determined that the probative value of that evidence was not "substantially outweighed by the danger of unfair prejudice" to Hoffart. The trial court did not, by any stretch, erroneously exercise its discretion in admitting evidence of what it found Hoffart had done before April 18, 2003.

B. Sufficiency of the evidence.

¶ 16. As we have seen, the trial court determined that Hoffart's post-April 18, 2003, threats against Wit-tig were "true threats" and thus Hoffart, as phrased by Wis. Stat. § 813.12(4)(a)3, "engaged in ... domestic abuse of' Wittig, applying the definition of "domestic abuse" in § 813.12(l)(am)6. By using the phrase "true threats" and by reference to the decision, the trial court incorporated and applied the constitutional limitations on the punishment of speech recognized by Perkins. Perkins explained: "Only a 'true threat' is constitutionally punishable under statutes criminalizing threats. The phrase 'true threat' is a term of art used by courts to refer to threatening language that is not protected by the First Amendment." Id., 2001 WI 46, ¶ 17, 243 Wis. 2d at 151, 626 N.W.2d at 767. Perkins articulated the applicable objective standard:

A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. In determining whether a statement is a true threat, the totality of the circumstances must be considered.

Id., 2001 WI 46, ¶ 29, 243 Wis. 2d at 158-159, 626 N.W.2d at 770 (footnote omitted).

¶ 17. Perkins involved a comment made by a person suspected of being suicidal that, as set out in the decision, "if he were going to kill himself, he would first kill" the judge who had ordered him to pay some $50,000 in overdue child-support. Id., 2001 WI 46, ¶¶ 6-7, 243 Wis. 2d at 147, 626 N.W.2d at 765. Perkins determined that the jury was improperly instructed because it was not told that it had to apply an objective standard to determine whether the person making the alleged threat "would reasonably foresee that a listener would reasonably interpret the statement to be a serious expression of a purpose to inflict bodily harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech." Id., 2001 WI 46, ¶ 37, 243 Wis. 2d at 163, 626 N.W.2d at 772. Although our review is de novo, see id., 2001 WI 46, ¶ 2 n.2, 243 Wis. 2d at 146 n.2, 626 N.W.2d at 764 n.2, we agree with the trial court that the constitutional boundaries of what is a "true threat" apply in domestic-abuse-injunction cases under Wis. Stat. § 813.12 as well.

¶ 18. Hoffart contends that there was insufficient evidence to find that Hoffart's post-April 18, 2003, threats against Wittig were "true threats." In essence, he argues that Hoffart's threats were but examples of empty posturing, devoid of any venal intent, as evidenced, he argues, by Wittig's admission that she never reported them to the police. He also contends that the trial court erred in encompassing things Hoffart did before April 18, 2003, in the totality of the circumstances it considered. We have already ruled that Hoffart's latter contention is without merit; so is his sufficiency-of-the-evidence argument.

¶ 19. The scope of our review of the trial court's findings of fact is clear: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Wis. Stat. Rule 805.17(2). Thus,

in reviewing the sufficiency of evidence to support a conviction, an appellate court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it.

State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752, 757-758 (1990) (citation omitted); see also State v. Lindgren, 2004 WI App 159, ¶ 24, 275 Wis. 2d 851, 864, 687 N.W.2d 60, 66 (recognizing Poellinger's applicability to bench trials).

¶ 20. As we have seen, the trial court credited both the testimony of Wittig and that of Hoffart's sister, and it did not believe Hoffart's denials. Further, the trial court found that Wittig was afraid of Hoffart's threats and that her fear was objectively reasonable because of Hoffart's pattern of abusive conduct. Thus, applying the Perkins constitutional standard to those threats, the trial court determined that they were "true threats" that would support issuance of a domestic-abuse injunction under Wis. Stat. § 813.12. Based on the trial court's findings of fact, we agree on our de novo review that Hoffart's threats to harm Wittig were not constitutionally protected, and reached the requisite level of "true threats." Accordingly, we affirm.

By the Court. — Order affirmed.

       Lana Wittig's petition for a domestic-abuse injunction was before the trial court on its de novo review of a court commissioner's order dismissing her petition. See Wis. Stat. § 757.69(8) ("Any decision of a circuit court commissioner shall be reviewed by the judge of the branch of court to which the case has been assigned, upon motion of any party. Any determination, order, or ruling by a circuit court commissioner may be certified to the branch of court to which the case has been assigned, upon a motion of any party for a hearing de novo.").

       Wittig's testimony as to what Hoffart's sister told her was, of course, hearsay. See Wis. Stat. Rule 908.01(3) (" 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."). Hoffart did not object to this aspect of Wittig's testimony, and thus the trial court was permitted to consider it. See State v. Jenkins, 168 Wis. 2d 175, 203, 483 N.W.2d 262, 273 (Ct. App. 1992) ("Unobjected-to-hearsay is admissible as substantive evidence.").

       There is no Wis. Stat. § 813.12(l)(am)4.


author: WEDEMEYER, RJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jeremy K. Morse, Defendant-Appellant.

    Court of Appeals

      No. 2004AP2658-CR.

      Submitted on briefs August 2, 2005.

      Decided August 23, 2005.

    2005 WI App 223
    (Also reported in 706 N.W.2d 152.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs oí Amelia L. Bizzaro of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of William C. Wolford, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Wedemeyer, PJ., Curley and Kessler, JJ.

       Petition to review filed.

   WEDEMEYER, RJ.

¶ 1. Jeremy K. Morse appeals from a judgment entered after his no contest plea to one count of first-degree reckless homicide, contrary to Wis. Stat. § 940.02(1) (2003-04). He also appeals from an order denying his postconviction motion. Morse claims: (1) the trial court should have granted his motion seeking plea withdrawal on the basis that his plea was not knowingly, intelligently and voluntarily made; (2) the trial court should have granted his motion seeking to withdraw his plea on the basis of newly discovered evidence; and (3) he is entitled to a new trial in the interests of justice. Because the trial court did not err in denying Morse's motion for plea withdrawal on either basis, and because there is no reason to reverse in the interests of justice, we affirm.

BACKGROUND

¶ 2. On April 17, 2001, a shooting occurred at 2215 North 42nd Street in the City of Milwaukee. Harry Powell was shot and killed. Morse gave two statements to police in regard to the shooting. Although the details differ in each of the accounts, Morse admitted in both statements that he was present at the time and location of the shooting and that he shot in the direction of the victim.

¶ 3. As a result of Morse's statements to police, he was charged with one count of first-degree reckless homicide. On September 26, 2001, the day on which the trial was supposed to begin, Morse changed his not guilty plea to a no contest plea. The trial court conducted a plea hearing and accepted Morse's plea. On November 15, 2001, Bernard S. Stein substituted in as Morse's counsel. On December 6, 2001, Stein filed motions to withdraw as counsel and to withdraw Morse's no contest plea. The trial court denied the motions.

¶ 4. On March 15, 2002, Morse was sentenced. Morse's appointed postconviction counsel, Ellen Henak, filed a motion seeking to withdraw the no contest plea and for resentencing. The trial court denied the motion for plea withdrawal, but granted the motion for resen-tencing.

¶ 5. Attorney Michael Backes was appointed to represent Morse for the resentencing proceeding. On June 10, 2003, Morse filed a motion seeking to withdraw his plea prior to resentencing. He alleged in the motion that newly discovered audio recordings of taped jail conversations suggested that Morse was innocent. He also argued that police reports indicating that the perpetrator was shot, leaving a blood trail, suggested that Morse was innocent because he was not shot at the crime scene. The trial court conducted a hearing and denied the motion. The trial court sentenced Morse to a twenty-five-year prison sentence, with seventeen years in initial confinement followed by eight years' extended supervision.

¶ 6. Morse filed a postconviction motion seeking to vacate the conviction. His motion was denied and he now appeals.

DISCUSSION

A. Knowing, Intelligent and Voluntary Plea.

¶ 7. Morse first argues that the trial court should have allowed him to withdraw his plea because it was not knowingly, intelligently and voluntarily entered. He contends that he believed by entering a no contest plea, he would receive a lesser sentence, that he did not understand the difference between a no contest plea and a guilty plea, and that although he told the court during the plea colloquy that he understood all the consequences of entering a plea, he really did not. Our review of the record demonstrates that Morse's plea was entered knowingly, intelligently and voluntarily.

¶ 8. The question of whether a defendant may withdraw his plea is left to the sound discretion of the circuit court. State v. Van Camp, 213 Wis. 2d 131, 139, 569 N.W.2d 577 (1997). In order to sustain a trial court's discretionary decision to deny a motion for plea withdrawal, we must ensure that the court's determination was made upon the facts of the record and in reliance on the appropriate and applicable law. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 635, 579 N.W.2d 698 (1998); State v. Bangert, 131 Wis. 2d 246, 289, 389 N.W.2d 12 (1986). We will find an erroneous exercise of discretion if the court improperly relied upon irrelevant or immaterial factors. Elias v. State, 93 Wis. 2d 278, 282, 286 N.W.2d 559 (1980).

¶ 9. Here, Morse challenges the adequacy of the plea hearing — claiming his plea was not knowingly, intelligently and voluntarily entered. His challenge is reviewed under a two-part test. First, he must show that a violation of the plea procedures under Wis. Stat. § 971.08(1) and Bangert occurred, and that he lacked knowledge or understanding of a plea-related issue. State v. Giebel, 198 Wis. 2d 207, 215-16, 541 N.W.2d 815 (Ct. App. 1995). Second, if he makes such showings, the burden shifts to the state to show by clear and convincing evidence that the plea was entered knowingly, intelligently and voluntarily despite the plea hearing deficiencies. Bangert, 131 Wis. 2d at 274. Whether Morse can satisfy his burden on the first step is a question of constitutional fact reviewed independently. Id. at 283. The trial court's findings of historical fact, however, will not be disturbed unless clearly erroneous. Id. at 283-84.

¶ 10. Here, the record reflects that Morse failed to demonstrate either a statutory or a Bangert violation. The plea hearing addressed all the appropriate issues and contains no statutory violations. The plea was extensive and complete. The fact that Morse now contends that he lied in answering the trial court's questions during the plea colloquy cannot operate to create an unconstitutional plea. Morse has failed to make a prima facie showing that his plea was not knowing, intelligent or voluntary.

¶ 11. Moreover, Morse's claim that the trial court should have explained the difference between a no contest plea and a guilty plea to dispel his misconception that he would receive a lesser sentence for pleading no contest is unpersuasive. Although the trial court did not extensively address the differences, the record does reflect the trial court addressed Morse's contention. The trial court specifically asked if Morse understood the consequences of pleading no contest — that it would find him guilty and sentence him as though he were guilty. The trial court also asked if Morse understood "that if a person enters a plea of no contest, they are giving up all the same rights and all the same defenses as a person who enters a plea of guilty?" Further, the trial court asked Morse if he understood that it was free to sentence him to the maximum possible prison term. Morse answered all the questions affirmatively. Accordingly, we are not convinced that Morse's claimed confusion regarding a no contest plea resulted in an unconstitutional plea. Thus, the trial court's decision denying his request to withdraw his plea was not erroneous.

B. Newly Discovered Evidence.

¶ 12. Morse next claims that newly discovered evidence supports his claim for plea withdrawal. The new evidence consists of taped jail conversations between two people discussing Morse's case and the police reports indicating the shooter left a blood trail. We address each separately.

¶ 13. This issue combines both the standards for reviewing a motion for plea withdrawal set forth above, as well as the standards for reviewing a decision on whether a defendant has adequately presented newly discovered evidence. If Morse satisfies the latter, that would satisfy the "fair and just standard" of the former.

¶ 14. "Motions for a new trial based on newly discovered evidence are entertained with great caution." State v. Terrance J.W., 202 Wis. 2d 496, 500, 550 N.W.2d 445 (Ct. App. 1996). We will affirm the trial court's denial of such a motion as long as it has a reasonable basis and is made in accordance with accepted legal standards and facts of record. State v. Jenkins, 168 Wis. 2d 175, 186, 483 N.W.2d 262 (Ct. App. 1992). On appeal, we review the trial court's determination for erroneous exercise of discretion. See State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707 (1997).

¶ 15. In order to grant a motion for a new trial based on newly discovered evidence, a defendant must show that: (1) evidence was discovered after trial; (2) the defendant was not negligent in failing to discover the evidence before trial; (3) the evidence is material; (4) the evidence is not cumulative; and (5) there exists a reasonable probability of a different result at a new trial. State v. Coogan, 154 Wis. 2d 387, 394-95, 453 N.W.2d 186 (Ct. App. 1990).

¶ 16. Here, the taped jail conversations consist of two recordings. The first conversation, from June 6, 2001, contains a statement from an inmate that "if Jeremy is dumb enough to admit that he did it he needs to be in jail." The second recording, from June 12, 2001, contains the statement, "Lying Ass Jeremy-How could you betray the family. You did the crime, do the time."

¶ 17. Morse contends that these recordings are new evidence supporting his innocence. The trial court found that the recordings did not constitute newly discovered evidence for the following reasons. The people in the taped conversations do not appear to have any first-hand knowledge of the crime involved here. The tape recordings would not be admissible. The statements made on the tapes were, at best, vague and inconclusive. Based on these findings, the trial court ruled that these tapes would not have created the reasonable probability of a different result if Morse had known about them before he entered his plea. We conclude that the trial court's findings are not clearly erroneous and agree with the trial court's ruling that these taped recordings fail to satisfy the last element of the newly discovered evidence test. Accordingly, the taped recordings do not constitute a fair and just reason for permitting plea withdrawal.

¶ 18. The next alleged newly discovered evidence consists of police reports discussing the possibility that the shooter was shot during the exchange of gunfire and left a trail of blood. Morse contends he was never shown this potentially exculpatory evidence — he characterizes it as such because he was not shot or bleeding during the incident. The trial court properly addressed this issue as one involving the potential for an ineffective assistance of counsel claim. It therefore conducted a hearing with the testimony of Morse's trial counsel. Counsel testified that he remembered discussing blood evidence with Morse, but could not remember specifically what was said. He also testified that it was his normal practice to give copies of all discovery documents to his clients, unless there was a reason he could not. Counsel indicated he did not have any specific recollection about the police reports in Morse's case.

¶ 19. Morse also testified at the hearing. He stated that he had not read the police reports until after he entered his plea and that when he was in lock-up, a person told him that the shooter was shot during the crime. When Morse asked his counsel about this, his counsel advised him that no one said they saw the perpetrator get shot.

¶ 20. The trial court denied the motion to withdraw based on the police report/blood trail evidence. The trial court specifically found that Morse's testimony was not credible and that he would say whatever it took to help himself. The trial court found that trial counsel had a reputation of fighting hard for his clients and said if the police report/blood trail evidence had any merit, counsel would have pursued it. The trial court found that counsel looked at the police reports and concluded that the statements about the shooter getting shot were merely speculative. Based on these findings, the trial court concluded that counsel was not ineffective and that this evidence did not constitute newly discovered evidence.

¶ 21. We agree. The record reflects, based on his own testimony, that Morse knew about this evidence before he entered his plea. Thus, this evidence fails to satisfy the first element of the newly discovered evidence test. In addition, speculator^ statements in police reports as to whether the shooter was shot fail to satisfy the fifth element of the newly discovered evidence test. This information would not create a reasonable probability of a different result. Accordingly, this evidence is insufficient to support a plea withdrawal.

C. Interests of Justice.

¶ 22. Morse's last claim is that a new trial is warranted in the interests of justice because the real controversy was not tried. We reject his claim.

¶ 23. Although this court has authority under Wis. Stat. § 752.35 to order a new trial in the interests of justice, Morse has failed to convince us to exercise that discretionary power. Morse confessed to police, and accepted a plea agreement. There is nothing in the record to persuade us that justice was not served in this case.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.


author: ANDERSON, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Mark R. Johnson, Defendant-Appellant.
    Court of Appeals

      No. 2004AP2059-CR.

      Submitted on briefs June 22, 2005.

      Decided August 24, 2005.

    2005 WI App 201
    (Also reported in 704 N.W.2d 625.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jefren E. Olsen, assistant state public defender, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James M. Freimuth, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Anderson, PJ, Brown and Nettesheim, JJ.
   ANDERSON, PJ.

¶ 1. Mark R. Johnson seeks to reduce his restitution obligation to the insurer of the local business he was convicted of burglarizing. The challenged amount represents the victim's lost profits on a prospective sale of products and services. While Johnson concedes that lost profits on a prospective sale may be imposed as restitution under Wis. Stat. § 973.20(5)(a) (2003-04), he complains that the evidence failed to sufficiently demonstrate that a causal nexus existed between his criminal activity and the victim's claimed lost profits and that the victim's lost profits amounted to $34,800. We conclude the evidence establishes to the requisite degree of certainty that the victim's sale of software and consulting services to an identified customer would have occurred but for Johnson's criminal conduct. We further conclude that the victim and its insurer presented sufficient credible comparable evidence, business history and business experience to permit the trial court's finding that the victim was entitled to $34,800 in lost profits. We affirm.

FACTS

¶ 2. On January 4, 2001, the State filed a complaint against Johnson, charging him with two crimes: burglary of a building and theft of property. According to the complaint, on the night of October 11, 2000, Johnson allegedly broke into the offices of Puestow & Associates, Inc. in Pewaukee and stole computers and related equipment and accessories. In July 2001, Johnson pled no contest to the burglary charge and the charge of theft was dismissed and read in for sentencing purposes. At the December 2001 sentencing hearing, the trial court imposed fourteen months' initial confinement and six years' extended supervision. The court did not set the restitution amount at the hearing. Instead, the court ordered that restitution was "to be determined by the Department of Corrections" within ninety days of Johnson's release to extended supervision.

¶ 3. At the conclusion of the restitution hearing held on August 11, 2003, the trial court ordered Johnson to pay restitution in the amount of $4500 to John Puestow, the president of Puestow & Associates, and $83,314.35 to CNA Insurance Companies, Puestow & Associates' insurer, to reimburse it for payments it had made to Puestow & Associates following the burglary. The $83,314.35 restitution obligation included $34,800 CNA had paid to Puestow & Associates' for lost profits resulting from the crime. Puestow & Associates' claim for lost profits was based on its prospective sale of computer software and consulting services to Apio, a California-based organization. This is the only portion of the restitution award that Johnson challenges on appeal.

¶ 4. The claim for lost profits rested primarily on the documentation Puestow & Associates provided CNA when it filed its claim for reimbursement for its losses stemming from the burglary and theft and on Peter Puestow's testimony at the restitution hearing. In the letter documenting Puestow & Associates' lost profits, Peter Puestow wrote that one of the software systems at issue, the Grower/Supplier Settlement system (GSS system), was a newly enhanced version which the company hoped would be more attractive to purchase. The development of the enhanced system had been completed shortly before the burglary and "[s]ev-eral interested prospects were to be demoed the new system." The Lot Management System (LMS) is the other software system at issue.

¶ 5. Peter Puestow further stated:

One of the customers that we felt the software products would have been sold to was Apio. How the systems could have helped [sic] Apio is described in the attached document.... It also shows that the critical demo was to be conducted on October 16th. The information to be demoed was loaded into the demo system along with the customized power point presentation. All of those materials plus the software systems were stolen on October 11th. So we had to back out of the demo and additional presales activities because we could not guarantee when or if we could deliver the new .. . system.

Puestow also quoted a "Typical Software Sales Price" for the two computer software systems Puestow & Associates expected to sell to Apio. Peter Puestow reported a typical sale price for the "GSS Base Module" as $40,000 and for the LMS as $75,000. He quoted an additional $15,000 for each system for customizations that would have been done. He therefore reported total revenue from the sale of the systems as being $145,000. He next estimated a sale of consulting services to Apio at $145,000, matching the sale price of the computer software. The prospective sale would therefore generate $290,000 in total revenue. He then estimated Puestow & Associates' profits on the prospective $290,000 sale to Apio to he $34,800, based on a percentage rate of twelve percent.

¶ 6. Attached to the letter was a ten-page document Puestow & Associates had prepared for Apio personnel to describe how its software package would meet Apio's business needs. The first page of this document reflected a five-stage review process of Puestow & Associates' products:

1. Initial Material Review (these materials) prior to the Conference Call
2. 9/26 Conference Call- — 10 am California time
-Review of materials sent with this document
-Further review of software functionality: high level and detail
-Additional discussion of Apio's Process and Requirements
-General Review of On Site Demo activities and Materials to be covered
3. Additional Follow-up Conference Calls and EMAILS
-Further Question and Answer Sessions
4. 10/16 Apio visit, software demonstration, and implementation task review
5. Refine Proposals and Costs
-Answer any remaining questions.
-Revise and finalize software proposal
-Refine Implementation Task and Cost estimate

¶ 7. At the restitution hearing, Peter Puestow testified about the relationship Puestow & Associates had with Apio at the time of the burglary and theft and about how the company had computed the amount of restitution for lost profits. Peter Puestow stated that Apio was "going to be purchasing the system if we could demo. Since the equipment was stolen, software was stolen, demo[s] were stolen, we were unable to demo so they did not. They backed out of the deal." Peter Puestow acknowledged that the parties had not entered into a contract, but stated in an exchange with Johnson's attorney:

[Johnson's attorney]: So you're saying GSS and LMS, Apio were going to buy?
[Peter Puestow]: Yes.
[Johnson's attorney]: They already agreed to pay this amount of money for the system?
[Peter Puestow]: If we were able to do the demo and move forward with the next step of the process, yes.
[Johnson's attorney]: I don't understand that answer. If you could do the demo?
[Peter Puestow]: They had agreed.

¶ 8. Peter Puestow testified that he personally put the numbers together for the lost profits calculation and that the estimates were "based on profits that [the company] ha[d] generated from the sales of similar material in the past." He stated that he had sold the GSS system base model six times and the $40,000 "represents the typical sales price to a company like Apio for the GSS system." He testified that he had sold the LMS to about eighty customers. He related that, while there had not been any customization done before the burglary, his numbers were based on an estimate for customization that Puestow & Associates had provided Apio. Regarding the lost profits from the sale of consulting services, Peter Puestow explained: "Our normal method of identifying revenues [is] for every dollar sold we get at least a dollar of consulting services .... We can usually generate a dollar of consulting services revenue not profit." Finally, as for the percentage rate he applied, Peter Puestow testified:

We have been selling software systems since '95 and we normally have a good feel what the profit revenue or minimum profit revenue can be from a software sale and usually it's 15 percent which is what was used or 12 percent that was used with this discussion.
We try to get 15 but we lowered it to 12 for this claim purposes and when we sell the software we get consulting services and we know roughly what the consulting service will be so we estimate from the loss consulting and can calculate the profitability loss from that also.

DISCUSSION

¶ 9. While Johnson concedes that lost profits are generally a compensable loss for purposes of Wis. Stat. § 973.20(5)(a), he argues that the trial court's award of lost profits as restitution in this case was improper. He first asserts that there is insufficient evidence of a causal nexus between his criminal acts and Puestow & Associates' alleged lost profits from the prospective sale to Apio. He next contends that there is insufficient evidence to support the trial court's determination that Puestow was entitled to lost profits in the amount of $34,800.

¶ 10. Standard of Review. Resolution of the first issue requires us to interpret and apply Wis. Stat. § 973.20. The interpretation of a statute and application to a given set of facts presents a question of law, which we review de novo. State v. Loutsch, 2003 WI App 16, ¶ 10, 259 Wis. 2d 901, 656 N.W.2d 781. However, trial courts have discretion in deciding on the amount of restitution and in determining whether the defendant's criminal activity was a substantial factor in causing any expenses for which restitution is claimed. State v. Johnson, 2002 WI App 166, ¶ 7, 256 Wis. 2d 871, 649 N.W.2d 284. When we review a trial court's exercise of discretion, we examine the record to determine whether the trial court logically interpreted the facts, applied the proper legal standard and used a demonstrated, rational process to reach a conclusion that a reasonable judge could reach. State v. Longmire, 2004 WI App 90, ¶ 16, 272 Wis. 2d 759, 681 N.W.2d 534.

¶ 11. Puestow & Associates' lost profits as restitution under Wis. Stat. § 973.20. Wisconsin Stat. § 973.20(5) provides, in pertinent part:

(5) In any case, the restitution order may require that the defendant do one or more of the following:
(a) Pay all special damages, but not general damages, substantiated by evidence in the record, which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing.

Restitution awarded under § 973.20(5)(a) is limited in two ways relevant to our present analysis.

¶ 12. First, restitution is limited to "special damages .. . which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing." Wis. Stat. § 973.20(5)(a). The term "special damages" as used in the criminal restitution context means any readily ascertainable pecuniary expenditure paid out because of the crime. Longmire, 272 Wis. 2d 759, ¶ 14. Section 973.20(5)(a) contemplates that restitution ordered in a criminal case will generally render actual civil litigation unnecessary. Longmire, 272 Wis. 2d 759, ¶ 32. Thus, the ultimate question in deciding whether an item of restitution is "special damages" within the meaning of the statute is whether the item is a readily ascertainable pecuniary expenditure attributable to the defendant's criminal conduct that could be recovered in any type of civil action, such as conversion or breach of contract. See id., ¶¶ 15, 26; Loutsch, 259 Wis. 2d 901, ¶ 12.

¶ 13. Second, before a trial court may order restitution "there must be a showing that the defendant's criminal activity was a substantial factor in causing" pecuniary injury to the victim in a "but for" sense. Longmire, 272 Wis. 2d 759, ¶ 13; State v. Rash, 2003 WI App 32, ¶ 7, 260 Wis. 2d 369, 659 N.W.2d 189. "The phrase 'substantial factor' denotes that the defendant's conduct has such an effect in producing the harm as to lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense." Rash, 260 Wis. 2d 369, ¶ 7 (citation omitted). This means that the defendant's actions "must be the 'precipitating cause of the injury' and the harm must have resulted from 'the natural consequence [s] of the actions.' " State v. Canady, 2000 WI App 87, ¶ 9, 234 Wis. 2d 261, 610 N.W.2d 147 (citation omitted). Put another way, a causal link for restitution purposes is established when "the defendant's criminal act set into motion events that resulted in the damage or injury." Longmire, 272 Wis. 2d 759, ¶ 13. A defendant "cannot escape responsibility for restitution simply because his or her conduct did not directly cause the damage." State v. Madlock, 230 Wis. 2d 324, 336, 602 N.W.2d 104 (Ct. App. 1999).

¶ 14. In considering these limitations on "special damages" we bear in mind that the purpose of restitution is to return victims of a crime to the position they were in before the defendant injured them. State v. Holmgren, 229 Wis. 2d 358, 366, 599 N.W.2d 876 (Ct. App. 1999). We therefore construe the restitution statute broadly and liberally to allow victims to recover their losses resulting from the criminal conduct. Id. Moreover, a restitution hearing is not the equivalent of a civil trial and does not require strict adherence to the rules of evidence and burden of proof. Id. at 367.

¶ 15. Because both parties agree that lost profits are recoverable as "special damages" under Wis. Stat. § 973.20(5)(a), we will comment on the matter only briefly. We will then move into a discussion of whether there was a sufficient showing in this case of a causal nexus between Johnson's criminal activity and Puestow & Associates' claim of lost profits.

¶ 16. Lost profits as an item of "special damages." The parties recognize that Johnson's criminal conduct in this case could give rise to a civil action based on the torts of conversion and interference with prospective contractual relationships. Conversion damages are intended to compensate a wronged party for the loss sustained because his or her property was wrongfully taken and it appears that the victim may recover lost profits from the prospective sale of the property wrongfully taken. See Management Computer Servs., Inc. v. Hawkins, Ash, Baptie & Co., 206 Wis. 2d 158, 188, 557 N.W.2d 67 (1996); Restatement (Second) of Torts § 927 cmt. m (1977). Further, a claim of tortious interference with a prospective contractual relationship could also lead to recovery for "loss of profits to be made out of the expected contracts." Restatement (Second) of Torts § 774A cmt. b (1977).

¶ 17. We observe that it is not the nature of the potential civil cause of action that distinguishes between amounts awardable as restitution and those that are not. Longmire, 272 Wis. 2d 759, ¶ 26. As explained, Wis. Stat. § 973.20(5) permits restitution for "all special damages" that could be recovered in any type of "civil action." See Longmire, 272 Wis. 2d 759, ¶ 26 (quoting § 973.20(5)(a)). As a general rule in tort actions, there may be recovery for loss of profits if the plaintiff can show with reasonable certainty the anticipation of profit. Krueger v. Steffen, 30 Wis. 2d 445, 450, 141 N.W.2d 200 (1966); The Law of Damages in Wisconsin, § 26.14 (Russell M. Ware ed., 3d ed. 2000); see Wis JI — Civil 3725. Thus, lost profits, if shown with reasonable certainty, are an appropriate item of restitution under § 973.20(5)(a) in criminal cases.

¶ 18. Causal nexus between Johnson's burglary and Puestow & Associates' lost profits. Having explained that lost profits may be recovered under Wis. Stat. § 973.20(5)(a), we turn to the facts of this case and examine whether Johnson's criminal activity was a substantial factor in causing Puestow & Associates' lost profits from the prospective sale to Apio. Johnson argues that Puestow & Associates' claimed lost profits are based entirely on conjecture and speculation and therefore the evidence is insufficient to show that" 'but for' [his] acts Apio would have agreed to purchase [Puestow & Associates'] software and consulting services."

¶ 19. Johnson points out that at the time of the burglary, Puestow & Associates did not have a contract with Apio for the sale of the software systems and consulting services; rather, Puestow & Associates was in the midst of presale activities with Apio. According to Johnson, because Puestow & Associates and Apio were not under contract, the causal link between Johnson's criminal activity and the lost profits is "tenuous," leaving this court to "only speculate whether the crime . .. prevented the sale or whether some other unrelated factor would have caused Apio not to go forward even if the demonstration had occurred."

¶ 20. It is not necessary for Puestow & Associates to have an established contract with Apio in order for it to demonstrate the necessary causal link between Johnson's criminal activity and its claimed lost profits. "Where negotiations are under way and appear likely to succeed, interference with them has been considered to be a tort" of interference with a prospective contractual relation. Leonard Duckworth, Inc. v. Michael L. Field & Co., 516 F.2d 952, 955 (5th Cir. 1975) (citation omitted); see The Law of Damages in Wisconsin, supra at §§ 24.2-24.4. We recognize that, by its very nature, a claim for restitution for lost profits due to a defendant's interference with a prospective contractual relationship will involve at least a minimal amount of speculation or uncertainty. Thus, when the claim for restitution for loss of profits is based on a prospective contractual relationship, the victim must prove with reasonable certainty that the prospective contractual relationship would have accrued absent the defendant's wrongful conduct. Cf. Krueger, 30 Wis. 2d at 450; The Law of Damages in Wisconsin, supra at § 26.14; Wis JI — Civil 3725. As the parties both note, there must be "something more than a mere hope or the innate optimism of the salesman." Glenn v. Point Park College, 272 A.2d 895, 898-99 (Pa. 1971). However, in determining whether the proof of lost profits meets the requirement of reasonable certainty, we may give due weight to the fact that it was the defendant's own wrongful conduct that created the speculation or uncertainty in the first instance. See The Law of Damages, supra at § 26.9; Restatement (Second) of Torts § 774A cmt. c.

¶ 21. The evidence in this case establishes with reasonable certainty that Puestow & Associates' sale of software and consulting services to Apio would have occurred absent Johnson's burglary and theft. Puestow & Associates had a "critical demo" scheduled for October 16, 2000, five days after Johnson's burglary. The aborted demonstration was the fourth out of a five-step contemplated process for obtaining a contract for the sale of software systems and services. When asked if Apio had already agreed to pay for the stolen software systems prior to the burglary and theft, Peter Puestow testified, "If we were able to do the demo and move forward with the next step of the process, yes .... They had agreed." We see nothing in the record that demonstrates or even suggests that Puestow & Associates felt it was unable to successfully perform the demonstration or any necessary customization or to otherwise complete the five-stage process. Further, it was Johnson's criminal conduct that set in motion the events that derailed Puestow & Associates' anticipated sale of software systems and consulting services to Apio. Peter Puestow's testimony and letter to CNA show that because the software systems were stolen, the company had to back out of the demo and any additional presale activities with Apio because it could not guarantee when or if it could deliver the new systems.

¶ 22. We are not persuaded by Johnson's attempts to favorably compare his case to others in which courts have refused to order restitution for lost profits because the claims were based on speculation or conjecture. In three of the cases, the business claiming lost profits did not identify specific potential customers it had lost as a result of the defendant's wrongful activity. See Jauquet Lumber Co. v. Kolbe & Kolbe Millwork Co., 164 Wis. 2d 689, 705-06, 476 N.W.2d 305 (Ct. App. 1991) (reversing a trial court's award of lost profits based on the plaintiffs decrease in market share because the plaintiff failed to provide a valid market share analysis and/or evidence of specific contracts it had lost); State v. May, 689 A.2d 1075, 1077-78 (Vt. 1996) (noting that a manager of the business victimized conceded that he had no idea how many potential customers the business had lost as a result of the theft and no idea of the value of the projects that might have been lost); State v. Barrett, 864 P.2d 1078, 1080-81 (Ariz. Ct. App. 1993) (evidence was insufficient to support restitution award compensating used car dealer who claimed that temporary loss of vehicle prevented him from selling vehicle at higher price because of lowered blue book value at time of vehicle's recovery; without evidence of potential buyers, dealer's conclusory statement as to amount of lost profit could not support award). In the fourth case, Merco Distributing Corp. v. Commercial Police Alarm Co., 84 Wis. 2d 455, 459-61, 267 N.W.2d 652 (1978), the plaintiffs entire negligence claim was built upon a chain of factual suppositions.

¶ 23. Here, in contrast to those cases, we are not dealing with a string of suppositions or an unknown potential customer. Johnson's criminal activity precluded Puestow & Associates from conducting the critical product demonstration, the fourth stage of a contemplated five-stage negotiations process, for specific and identified customer, Apio. Puestow & Associates was prepared to carry out the demonstration and complete the process at the time of the crime. The contract between Puestow & Associates and Apio only became hypothetical after Johnson's criminal acts.

¶ 24. In sum, the evidence supports the trial court's conclusion that Johnson's criminal activity was a substantial factor in causing pecuniary injury to Puestow & Associates. The evidence reveals with reasonable certainty that Puestow & Associates' sale of software and services to Apio would have occurred but for Johnson's criminal activity.

¶ 25. Amount of restitution awarded for lost profits. Johnson argues that the record fails to support Puestow & Associates' claim for $34,800 in lost profits. Specifically, Johnson faults Puestow & Associates for not factoring into its lost profits calculation the related costs or losses associated with producing the product and providing the services.

¶ 26. Wisconsin Stat. § 973.20(14)(a) places the burden on the victim to show "by the preponderance of the evidence the amount of loss sustained." With respect to "lost profits" as damages in a tort action, we have stated:

Damages for lost profits need not be proven with absolute certainty, but the claimant must produce sufficient evidence... on which to base a reasonable inference as to a damage amount. To establish lost profits, the claimant must produce evidence of the business's revenue as well as its expenses. Assertions as to the amount of lost profits have no evidentiary value unless supported by figures showing profits and losses.

Lindevig v. Dairy Equip. Co., 150 Wis. 2d 731, 740, 442 N.W.2d 504 (Ct. App. 1989) (citations omitted). The issue of lost profits damages, however, should be addressed on a case-by-case basis and they are recoverable where a claimant can present credible comparable evidence or business history and business experience sufficient to allow a fact finder to reasonably ascertain the amount of future lost profits. T & HW Enters. v. Kenosha Assocs., 206 Wis. 2d 591, 605 n.6, 557 N.W.2d 480 (Ct. App. 1996). Here, Puestow & Associates presented sufficient credible comparable evidence, business history and business experience to permit the trial court's finding of $34,800 in lost profits.

¶ 27. The sum of $34,800 was based on Puestow & Associates' estimated profit of twelve percent on a prospective $290,000 sale of software systems and consulting services to Apio. In his letter to CNA, Peter Puestow reported that a typical software sale price for the base GSS system is $40,000. He then testified that this sale price is typical for "a company like Apio," based on the sale of six older GSS systems. Peter Puestow also reported to CNA a sale price of $75,000 for the LMS, calculated at $1000 for each of Apio's anticipated seventy-five users. At the restitution hearing, Peter Puestow explained: "[Tjhat's a selling price that we get for that [LMS] product and the 75 users was the typical size for Apio that they were going to be purchasing." Peter Puestow commented that he had sold about eighty LMS in the past.

¶ 28. In his letter to CNA, Peter Puestow also estimated customizations costs of $15,000 each for the GSS systems and LMS; he later testified that these figures were "quotes" given to Apio because no customization had yet been done. Peter Puestow reported to CNA an estimated $145,000 for consulting services to Apio, which matched the sale price of the computer software. At the restitution hearing, Peter Puestow reasoned, "Our normal method of identifying revenues [is] for every dollar sold we get at least a dollar of consulting services .... We can usually generate a dollar of consulting services not profit." Finally, in Peter Puestow's letter to CNA, he estimated the company's "profit" on the prospective $290,000 sale to Apio at $34,800 based on a rate of twelve percent. Peter Puestow commented that he put the numbers together himself from first-hand knowledge of previous sales.

¶ 29. When read together, Peter Puestow's testimony and his letter to CNA clearly show that the challenged restitution amount was sufficiently supported by credible comparable evidence, business experience and business history. As Peter Puestow recognized, "These estimates are based on profits that [Puestow & Associates] ha[s] generated from the sales of similar material in the past." The trial court therefore properly ordered Johnson to reimburse CNA for Puestow & Associates' claimed lost profits in the amount of $34,800.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       A charge from a separate case involving misdemeanor possession of drug paraphernalia was also dismissed as part of the plea agreement.

       Courts in other jurisdictions have reached a similar conclusion regarding lost profits as an item of restitution. See, e.g., State v. May, 689 A.2d 1075, 1077 (Vt. 1996) (citing several cases in which different state courts have required a victim claiming restitution for lost profits to show with some level of certainty the fact of lost profits).