author: EICH, J.

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

      No. 99-2851-CR.

      Submitted on briefs May 19, 2000.

    Decided June 22, 2000.

    2000 WI App 158
    (Also reported in 616 N.W.2d 144.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven L. Miller of Miller & Miller, River Falls.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, with Kathleen M. Ptacek, assistant attorney general.
    Before Eich, Vergeront and Deininger, JJ.

      Petition to review denied.

   EICH, J.

¶ 1. Abby Olson was convicted of two counts of second-degree sexual assault of a child contrary to WlS. Stat. § 948.02(2) (1997-98). The charges grew out of an incident where Olson, who was then eighteen years old, had sexual intercourse with two boys, aged fourteen and fifteen. The trial court denied Olson's request to instruct the jury that, in order to convict, the State must prove that the intercourse was the result of her own intentional acts, or was undertaken by the boys upon her own "affirmative instructions." Instead the court read only those portions of the pattern instruction stating that Olson could be found guilty solely upon proof that the intercourse occurred and the boys were under age sixteen. The jury found her guilty.

¶ 2. We agree with Olson that the circuit court erred in rejecting the requested instruction. We therefore reverse her conviction and order a new trial.

¶ 3. Olson and the boys were students at a religious boarding school and the incident took place on a bench near the school's football field. A day or so later, Olson reported to school authorities that she had been raped. The boys, on the other hand, described Olson as a willing participant who welcomed and encouraged their sexual advances, and Olson was eventually charged with sexual assault. She did not testify at trial, and the boys' testimony repeated their allegations that Olson was a willing participant in the sexual acts.

¶ 4. Wisconsin Stat. § 948.02(2) makes it a class BC felony to have sexual contact or sexual intercourse with a person under the age of sixteen. "Sexual intercourse" is defined as:

[V]ulvar penetration as well as cunnilingus, fellatio or anal intercourse between persons or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal opening either by the defendant or upon the defendant's instruction. The emission of semen is not required.

WlS. Stat. § 948.01(6). The pattern jury instruction for the offense, Wis JI — Criminal 2104, states that in order for the defendant to be found guilty of the charge, the jury must find:

First, that the defendant had sexual [intercourse] with (name of victim).
Second, that (name of victim) had not attained the age of 16 years at the time of the alleged sexual [intercourse].

The instruction continues by incorporating the following definitions from WlS JI — CRIMINAL 210IB:

["Sexual intercourse" means any intrusion, however slight, by any part of a person's body or of any object, into the genital or anal opening of another. Emission of semen is not required.]
[This intrusion may be either by the defendant or upon the defendant's instruction.]
[Cunnilingus, the oral stimulation of the clitoris or vulva, is sexual intercourse.]
[Fellatio, the oral stimulation of the penis, is sexual intercourse.]

¶ 5. Olson requested that, in addition to instructing on the two elements of the offense — the act of intercourse and the boys' ages — and the definition of "sexual intercourse," the court also tell the jurors that, in order for her to be found guilty:

the State must prove that the sexual intercourse that occurred was caused by an intentional direct act of the Defendant or occu[r]red as a result of an act by the victim which was done in compliance with affirmative instructions of the Defendant.

¶ 6. The trial court denied the request, reasoning that the type of sexual activity at issue was not so "peculiar" as to require any particular instruction on the meaning of the term "sexual intercourse." Olson then requested that the first and second paragraphs of Wis JI — Criminal 210 IB (quoted above) be read to the jury — the "sexual intercourse" definition and the "upon the defendant's instruction" language of the instruction. She argued that the language of Wis. Stat. § 948.01(6) requires proof of some volitional act on her part — "that she had to have given an instruction or done something... [b]ecause if she didn't, it's rape and she's the victim." The court denied this request as well, and instructed the jury that all the State needed to prove to convict Olson was that she "had sexual intercourse" with the boys, and that the boys had not yet reached the age of sixteen at the time. As indicated, the jury found her guilty and she appeals her conviction.

¶ 7. The issue is one of statutory interpretation — a question of law which we review de novo. See State v. Olson, 175 Wis. 2d 628, 633, 498 N.W.2d 661 (1993). Our objective in interpreting and applying a statute is to ascertain and give effect to the intent of the legislature, see id., the primary source of which is the language of the statute itself. See State v. McKenzie, 139 Wis. 2d 171, 176, 407 N.W.2d 274 (Ct. App. 1987). And in all cases, we are obligated to construe statutes in a manner that avoids absurd or unreasonable results. See Reyes v. Greatway Ins. Co., 227 Wis. 2d 357, 376, 597 N.W.2d 687 (1999). Finally, we follow the rule that, in interpreting a statute, "the purpose of the whole act is to be sought and is favored over a construction which will defeat the [act's] manifest object. . . ." Adoption of Abigail M., 221 Wis. 2d 781, 786, 586 N.W.2d 21 (Ct. App. 1998).

¶ 8. Olson argues that the statutory definition of "sexual intercourse" in WlS. STAT. § 948.01(6) requires something more than that an act of intercourse has taken place when the defendant is the "passive" party. She says that, considering the "by the defendant or upon the defendant's instruction" language, the statute implicitly requires that the defendant must, at the very least, have voluntarily engaged in the act of intercourse, either by instructing or directing the victim in its commission or by doing some affirmative or volitional act to that end. She says that the court's instructions amounted to a directed verdict of guilt, since there was no dispute that the boys had intercourse with her on the night in question — nor was there any question of the boys' ages. She renews her contention that, based on the instructions given by the court, a woman who is forcibly raped, or one who is sexually assaulted while unconscious, would herself be guilty of sexual assault if her attacker was under the age of sixteen.

¶ 9. The State disagrees. It urges us to read the statute as disjunctive — that the phrase "by the defendant or upon the defendant's instruction" has nothing to do with "sexual intercourse" but modifies only the "other intrusion" language. Such a reading, in our opinion, produces a result that is neither logical nor consistent with the purpose of Wis. Stat. § 948.01(6).

¶ 10. In our view, the phrase "by the defendant or upon the defendant's instruction" was intended by the legislature as modifying the entire list of activities — including "vulvar penetration" and "cunnilingus" — and establishes that, in order for sexual intercourse, as defined, to occur, the defendant has to either affirmatively perform one of the actions on the victim, or instruct or direct the victim to perform one of them on him- or herself. We think this follows from the language of the definition itself. It does not distinguish between the actors; it says that "sexual intercourse" means vulvar penetration or cunnilingus, fellatio or anal intercourse "between two persons," as well as any other intrusion, however slight, "by any part of a person's body into the genital or anal opening [of another person]." Wis. Stat. § 948.01(6) (emphasis added). And it says that the act may be done "either by the defendant or upon the defendant's instruction." Id. In the State's view, if a fifteen-year-old boy were to intrude any part of his body, or any other object, into an eighteen-year-old girl's vagina, the girl could not be convicted of sexually assaulting the boy unless the State could prove the act or acts were done upon the girl's instruction — but if the boy had genital, anal or oral intercourse with the girl nothing more need be proved in order to convict her. The State has not explained why the legislature would intend such disparate results.

¶ 11. Beyond that, we believe the history of the "sexual contact" instruction, WlS JI — CRIMINAL 2101A, is instructive on the issue before us. WISCONSIN Stat. § 948.01(5) defines "sexual contact" as, among other things, the "[ijntentional touching by the complainant or defendant of the complainant's or defendant's intimate parts" for the purpose of sexual degradation, arousal or gratification. In drafting the instruction to be used in sexual contact cases where the "touching" is done by the victim, rather than the defendant, the Criminal Jury Instructions Committee added the language, "if [the defendant] caused [the victim] to do that touching." Wis JI — Criminal 2103 (1989). In its comment to the instruction, the Committee noted that while there was nothing in the language of § 948.01(5) relating to "cause," such a requirement "is implicit [in the statute]." Id., comment 3. We have long recognized that the Committee's comments constitute "persuasive authority." State v. Gavigan, 122 Wis. 2d 389, 393, 362 N.W.2d 162 (Ct. App. 1984). Indeed, we tacitly approved the Committee's addition to the statutory language in State v. Traylor, 170 Wis. 2d 393, 489 N.W.2d 626 (Ct. App. 1992), expanding the phrase to read "if the defendant intentionally caused or allowed [the touching]." In doing so, we warned that, while there is, in cases where the defendant merely permits sexual contact initiated by a child, a permissive inference that the defendant sanctioned the contact for the purpose of sexual arousal or gratification, "there must be evidence in the record that [the] defendant allowed the touching before this inference can be raised." Id. at 404 n.2 (emphasis in the original). We continued:

The mere fact of a child's touching an adult does not raise the inference. There might indeed be evidence in a specific case that the adult called an immediate halt to this activity. Absent other evidence that the event was sanctioned by the adult, the mere fact that a touching took place is not the same as "allowing" it.

Id. at n.2.

¶ 12. In short, in sexual-contact-with-a-child cases where the contact was initiated by the child, the State must prove that the defendant at least "allowed" — that is, consciously and affirmatively consented to — the contact before an inference could be drawn that he (or she) intended sexual gratification or arousal. We believe a similar requirement is implicit in the sexual-intercourse-with-a-child statute — a requirement that the intercourse must at least have occurred, in the language of Wis. Stat. § 948.01(6) and Wis JI — Criminal 2104 and 2101B, "upon [the defendant's] instruction" before a conviction may be had. This was not done here.

¶ 13. The State makes two final points. First, it says there was evidence that Olson did in fact "allow[ ]the intercourse," and it summarizes that evidence in its brief. The point, however, is not whether such evidence exists — or even whether it might be considered persuasive to the jury. The point is that the jury was never permitted to consider whether Olson did or did not allow the intercourse to occur. And while Olson did not testify at trial, there was evidence that she had reported the incident as a sexual assault upon her, and police officers testified in detail as to the specifics of the acts as she reported them. Second, the State points out that the victim's consent is not a defense to a charge of sexual assault of a minor under the age of sixteen. We agree. See State v. Fisher, 211 Wis. 2d 665, 675, 565 N.W.2d 565 (Ct. App. 1997). We also understand that a defendant may be convicted of the offense regardless of his or her knowledge of the victim's age. All we hold in this case is that the act or acts which bring about the sexual intercourse must be, again in the words of the statute, undertaken "upon the defendant's instruction." Olson was entitled to the inclusion of the pattern jury instruction containing the "upon the defendant's instruction" language.

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

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

       Because the jury instruction issue is dispositive of the appeal, we need not address Olson's other arguments for reversal.

       As indicated, this case involves sexual intercourse.

       All of the sexual activities listed in the statute appear to constitute some form of intrusion upon or penetration of the body of another person. We are unpersuaded by the State's argument that "it would be absurd to conclude that the phrase '... upon the defendant's instruction' modifies the terms vulvar penetration or cunnilingus, since . . . the act of cunnilingus . . . does not necessarily require any act of intrusion of any part of a person's body." Without going into unnecessary detail in response to the State's assertion in this regard, we note that the word "intrude" is defined as, "to thrust or force in, into, on, or upon esp. without permission, welcome, or fitness." Webster's Third New International Dictionary 1187 (1993) (emphasis added).


source: Caselaw Access Project

author: PETERSON, J.

license: Public Domain

text:
    Steven M. Lucareli and Candice J. Lucareli, Plaintiffs-Appellants, v. VILAS County and Jack Smith, individually and as an employee of the State of Wisconsin, Department of Natural Resources, Defendants-Respondents.
    Court of Appeals

      No. 99-2827.

      Submitted on briefs June 12, 2000.

    Decided June 27, 2000.

    2000 WI App 157
    (Also reported in 616 N.W.2d 153.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Thomas J. Kelly of Kelly Law Office, Spring Green.
    On behalf of the defendants-respondents, the cause was submitted on the brief of James E. Doyle, attorney general, and Thomas L. Dosch, assistant attorney general.

      Before Cane, C.J., Hoover, P.J., and Peterson, J.

      Petition to review denied.

   PETERSON, J.

¶ 1. Steven and Candice Lucareli appeal a judgment determining the amount of reasonable attorney fees attributed to their previous appeal. We had found that appeal frivolous and remanded to the circuit court for it to determine the amount of fees. The Lucarelis appeal that determination, essentially raising two arguments: (1) the circuit court did not have subject matter jurisdiction to determine the amount of attorney fees associated with their frivolous appeal; and (2) the circuit court erred in denying them an evidentiary hearing. We reject both arguments and affirm the judgment.

Background

¶ 2. In their previous appeal, Lucareli v. Vilas County, No. 98-0740, unpublished slip op. (Wis. Ct. App. Mar. 9,1999), the Lucarelis challenged the circuit court's decision that found frivolous their action against a Department of Natural Resources employee named Jack Smith. We affirmed and determined that the Lucarelis had also processed a frivolous appeal. We awarded Smith the costs and reasonable attorney fees associated with the frivolous appeal and remanded to the circuit court for it to determine the amount of the award.

¶ 3. On remand, the circuit court determined the amount of attorney fees based on the sworn affidavit of the assistant attorney general who had defended Smith on appeal. The Lucarelis objected to the affidavit and contended that they were entitled to an eviden-tiary hearing. The circuit court denied their request after concluding that the Lucarelis only raised legal issues. The court noted that defense counsel's affidavit "contain[ed] an itemized and detailed summary of the professional services which [counsel] rendered in connection with the appeal, the exact time spent on each aspect of the appeal, the method... by which the value of those services [we]re computed, and complete copies of the end work product." In conclusion, the court explained that an evidentiary hearing was not necessary because the Lucarelis were not "able to advance any articulable or arguable basis for suspecting that [counsel] had falsely sworn to any aspect of the affidavit... ."

Analysis

¶ 4. The Lucarelis raise various issues on appeal. Pursuant to this court's order dated January 13, 2000, however, we will only consider the Lucarelis' arguments concerning the trial court's award of reasonable attorney fees associated with their frivolous appeal.

A. Subject Matter Jurisdiction

¶ 5. Initially we address the Lucarelis' argument that the circuit court did not have subject matter jurisdiction to determine the amount of reasonable attorney fees associated with their frivolous appeal. The Lucare-lis cite art. VII, § 8 of the Wisconsin Constitution, which states: "Except as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state and such appellate jurisdiction in the circuit as the legislature may prescribe by law."

¶ 6. They then argue that no statute expressly grants circuit courts subject matter jurisdiction to determine attorney fees associated with a frivolous appeal. We reject their argument.

¶ 7. Wisconsin Stat. Rule 809.25(3) states, in relevant part:

(3) Frivolous Appeals, (a) If an appeal or cross-appeal is found to be frivolous by the court, (3) the court shall award to the successful party costs, fees and reasonable attorney fees under this section.

¶ 8. The fundamental flaw in the Lucarelis' argument is that this court, not the circuit court, awarded sanctions for the Lucarelis' frivolous appeal pursuant to Wis. Stat. Rule 809.25(3). According to our longstanding procedure, we simply remanded to the circuit court to determine the amount of reasonable attorney fees.

¶ 9. There is nothing peculiar to determining an amount of appellate attorney fees that requires appellate jurisdiction. We did not create a new or separate action when we found the Lucarelis' appeal frivolous. While only an appellate court can find an appeal frivolous under Wis. Stat. Rule 809.25(3), there is no reason the circuit court would not continue to have subject matter jurisdiction on remand. See generally State v. Webster, 196 Wis. 2d 308, 316, 538 N.W.2d 810 (Ct. App. 1995) (Once a circuit court has subject matter jurisdiction over a case it continues until final disposition.). That the remand arose out of a frivolous appeal is not relevant to whether the circuit court had subject matter jurisdiction to determine reasonable attorney fees.

B. Evidentiary Hearing on Attorney Fees

¶ 10. The Lucarelis argue that they were entitled to "pre-hearing discovery" and an evidentiary hearing so that they could adequately test the validity of counsel's affidavit of billed services. Without those procedural safeguards, they argue that due process of law cannot be satisfied.

¶ 11. When deprivation of property is at issue, as it is in this case, minimal due process requires the court to afford a litigant a meaningful opportunity to present a defense. See Boddie v. Connecticut, 401 U.S. 371, 377-78 (1971). The circuit court gave the Lucare-lis a meaningful opportunity to submit counter-affidavits and/or arguments that could have created a material issue of fact involving defense counsel's affidavit. As the circuit court noted, however, the Lucarelis chose to do neither. Instead of addressing the substantive reasonableness of the proposed attorney fees, the Lucarelis used their opportunities to raise procedural and legal issues that were irrelevant or that this court or the circuit court had already decided.

¶ 12. Absent material issues of fact, the circuit court did not need to hold an evidentiary hearing. A circuit court generally "has the expertise to evaluate the reasonableness of the fees with regard to the services rendered." Tesch v. Tesch, 63 Wis. 2d 320, 335, 217 N.W.2d 647 (1974). And "[i]t is not really the type of issue or question of fact where an adversary presentation is necessary to the presentation of evidence necessary to a determination." Id. Further, an itemized bill submitted by affidavit may be sufficient evidence to establish attorney fees. See id. at 334.

¶ 13. With regard to the circuit court's determination of the amount of attorney fees, this is a finding of fact that we will sustain unless the court erroneously exercised its discretion. See Milwaukee Rescue Mission v. Milwaukee Redev. Auth., 161 Wis. 2d 472, 494, 468 N.W.2d 663 (1991). The Lucarelis implicitly acknowledge that they have no basis for their claim that the proposed attorney fees were unreasonable. In their brief to this court, they plainly state that had they "been able to depose Smith's lawyer, they might have discovered evidence casting doubt on his fee request and supporting their request for an evidentiary hearing." (Emphasis added.) The Lucarelis' request for an evidentiary hearing was in the nature of a fishing expedition, which the trial court was not required to grant.

By the Court. — Judgment affirmed.

       We will not address the Lucarelis' other arguments because, as the circuit court adequately explained in its written decision, they have either been decided or were waived when the Lucarelis failed to raise them in their original action and appeal.

       All statutory references are to the 1997-98 version.

       For our purposes "court" refers to the court of appeals. See Wis. Stat. Rule 809.01(4).

       From a utilitarian perspective, circuit courts are much better suited for determining the amount of an award since they have the ability to hold evidentiary hearings when necessary. The Lucarelis acknowledged an understanding of this point in a letter response to the circuit court in which they stated, "it hardly needs saying that the Court of Appeals is not a fact finding court, and that is why the issue of reasonable attorney's fees was remanded to this court."

       We also note that this is consistent with federal practice under Rule 38 of the Federal Rules of Appellate Procedure, which allows "a court of appeals" to impose "just damages and single or double costs" in a frivolous appeal. In Conner v. Travis County, 209 F.3d 794, 801 n.5 (5th Cir. 2000), the Fifth Circuit stated that although a district court did not have authority to sanction based on its determination that an appeal was frivolous under Rule 38, "[a] district court can still calculate sanctions if [the court of appeals] determine[s] that an appeal is frivolous and remand[s] to the district court to award justifiable damages, costs, or fees."

       As explained in footnote 1, one of the issues that we will not address is the Lucarelis' related argument that the circuit court improperly determined the attorney's hourly rate by using the average cost for providing legal services incurred by the State of Wisconsin Department of Justice. The Lucarelis raised the identical argument when objecting to the determination of trial counsel's fees, who was the same attorney that defended the Lucarelis' appeal. The Lucarelis eventually abandoned that argument and it is now the law of the case. See Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 38, 435 N.W.2d 234 (1989). The Lucarelis argue that their previous abandonment of this issue should not affect their argument regarding appellate attorney fees. But the legal issue was the same: whether counsel's attorney fees could be calculated by general statistics.

       We are not suggesting that discovery is foreclosed. That is a matter within the discretion of the trial court.


author: CURLEY, J.

text:
    In re the Detention of Frederick L. Pharm: State of Wisconsin, Petitioner-Respondent, v. Frederick L. Pharm, Respondent-Appellant.

    Court of Appeals

      No. 98-1542.

      Submitted on briefs February 1, 2000.

    Decided June 13, 2000.

    2000 WI App 167
    (Also reported in 617 N.W.2d 163.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Jack E. Schairer, assistant state public defender.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Sally L. Wellman, assistant attorney general.

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

      Petition to review denied.

   CURLEY, J.

¶ 1. Frederick L. Pharm appeals from the judgment finding him to be a sexually violent person under Wis. Stat. § 980.01(7), and an order committing him to a secure mental health facility. Pharm also appeals from an order denying his postcommitment motion. Pharm argues that: (1) the chapter 980 petition should be dismissed because there is no indication in the record that the Department of Corrections (DOC), as the agency with the authority to release Pharm from custody, notified the Department of Justice (DOJ) under Wis. Stat. § 980.015 that Pharm met the criteria for commitment, nor is there any indication that, pursuant to Wis. Stat. § 980.02, the DOJ declined to file a chapter 980 petition before the District Attorney's office filed the petition; (2) the chapter 980 petition was untimely because it was filed on his mandatory release date; (3) he was convicted of a crime that is no longer contained in the criminal code and, therefore, this underlying conviction cannot serve as a predicate offense for a chapter 980 prosecution; (4) the chapter 980 petition was filed with a criminal case number and not a civil case number, thereby depriving the circuit court of subject matter jurisdiction; and (5) trial counsel was ineffective for failing to object to specific testimony given by one of the State's expert witnesses, and for failing to address issues regarding the definition of "substantial probability."

¶ 2. We are not persuaded by any of Pharm's arguments. We conclude that: (1) Pharm failed to assert that the petition should be dismissed because the notice provisions of Wis. Stat. §§ 980.015 and 980.02 were not followed in the trial court and, thus, we decline to address his first argument; (2) the chapter 980 petition was timely filed; (3) Pharm's underlying conviction for indecent behavior with a child constitutes a predicate offense under WlS. Stat. § 980.01(6); (4) filing the chapter 980 petition under a criminal case number did not affect the circuit court's subject matter jurisdiction; and (5) Pharm's trial counsel was not ineffective for failing to object to the testimony of the State's expert witness or for failing to argue for a specific definition of "substantial probability." Therefore, we affirm.

I. Background.

¶ 3. On June 3,1988, Pharm was convicted of one count of indecent behavior with a child, and one count of sexual perversion, contrary to WlS. STAT. §§ 944.11(3) (1973-74) and 944.17 (1973-74). Pharm was sentenced to ten years of imprisonment on count one, and five years consecutive on count two. On Pharm's mandatory release date, October 28, 1997, the District Attorney's office filed a chapter 980 petition alleging that Pharm is a sexually violent person who had been convicted of sexually violent offenses. The petition further alleged that Pharm suffers from a mental disorder that predisposes him to engage in acts of sexual violence, and that it is substantially probable that he will engage in acts of sexual violence in the future. The trial court ordered that Pharm be detained and that a probable cause hearing be held within seventy-two hours to determine whether there was probable cause to believe that Pharm is a sexually violent person under chapter 980.

¶4. Immediately preceding the probable cause hearing, Pharm brought a motion to dismiss the chapter 980 petition as untimely. Pharm argued that because the petition had been filed on his mandatory release date, it had not been filed within ninety days of the date of his discharge or release under the predicate offense, as required by Wis. Stat. § 980.02(2). The trial court disagreed, finding that the petition was filed within ninety days of Pharm's release and, therefore, the petition was timely. The trial court denied Pharm's motion and proceeded with the probable cause hearing. At the conclusion of the hearing, the trial court found probable cause to believe that Pharm is a sexually violent person within the meaning of Wis. Stat. § 980.01(7). The trial court ordered that Pharm be detained pending trial, for further evaluation to determine whether he is a sexually violent person.

¶ 5. Pharm's jury trial commenced on February 23, 1998. Dr. Linda Cooper, Dr. Dennis Doren, and Pharm's ex-wife testified for the State. Pharm's ex-wife testified that Pharm frequently had violent outbursts of both a sexual and a non-sexual nature. Dr. Cooper testified regarding her conclusions that Pharm suffered from anti-social personality disorder, and pedophilia with an attraction to females, nonexclusive. Dr. Doren also testified regarding his evaluation of Pharm, and the conclusions he reached based on the evaluation. Dr. Doren concluded that Pharm suffered from the following conditions: sexual sadism, pedophilia, and personality disorder, not otherwise specified, with anti-social features. In explaining that he resolved the factual disputes between Pharm and his ex-wife in favor of the ex-wife, Dr. Doren testified that he found Pharm's ex-wife, but not Pharm, to be credible. Dr. Doren produced a chart marked as an exhibit which detailed reasons for his conclusions that Pharm's ex-wife was more believable in her recounting of past events. Both Dr. Cooper and Dr. Doren testified to a reasonable degree of professional certainty that Pharm was a substantial risk to commit additional sexually violent offenses.

¶ 6. Merlin Noremberg, an instructor at the Fox Lake Correctional Institution, and Dr. Samuel Friedman, a psychologist, testified on Pharm's behalf. Mr. Noremberg, testified regarding Pharm's training and skill as a cabinetmaker and millworker. Dr. Friedman testified, based on his review of various records and an interview with Pharm, that Pharm was a credible and reliable individual who did not demonstrate any clear-cut evidence of sexual deviancy. Finally, Dr. Friedman expressed his opinion, to a reasonable degree of psychological certainty, that Pharm is not a sexually violent person.

¶ 7. The jury returned a verdict finding Pharm to be a sexually violent person, and the trial court entered a final order committing Pharm to a secure mental health facility. Pharm filed a motion seeking summary reversal with this court, claiming that the petition was not timely filed, the predicate offenses were not sexually violent offenses under chapter 980, and that trial counsel was ineffective for failing to request a definition of "substantial probability." This court denied the motion with leave for further consideration on the merits once the full record was before us. Pharm then filed a motion for stay and remand to the trial court for consideration of his ineffective assistance of counsel claims. That motion was granted and the case was remanded to the trial court.

¶ 8. On remand, Pharm brought a postcommitment motion which alleged that trial counsel was ineffective for: failing to argue that "substantial probability" required a definition and that "extreme likelihood" or "highly likely" should have been substituted for "considerably more likely than not to occur"; failing to object to Dr. Doren's exhibit and testimony regarding Pharm's credibility; and failing to object to the filing of the chapter 980 petition with a criminal case number. The trial court denied Pharm's postcom-mitment motion without a hearing, and this court denied Pharm's motion to compel a Machner hearing. Pharm now appeals the denial of his postcommitment motion.

II. Analysis.

A. We decline to address several of Pharm's arguments raised for the first time on appeal.

¶ 9. Pharm argues that the trial court erred when it denied his motion to dismiss the petition. Immediately preceding the probable cause hearing, Pharm brought an oral motion to dismiss the chapter 980 petition, arguing that: (1) the petition was not timely filed, and (2) the appended report by Dr. Cooper was not timely and did not contain new information to support her revised opinion regarding Pharm's risk of recidivism. The trial court denied Pharm's motion. On appeal Pharm again contends that the trial court erred when it denied his motion to dismiss the petition; however, Pharm now argues for the first time that the petition should have been dismissed because: (1) it does not reflect that there had been any notice to the DOJ regarding Pharm's case pursuant to Wis. Stat. § 980.015, and (2) the DOJ did not decline to file a chapter 980 petition before the District Attorney's office filed a petition, as required by Wis. Stat. § 980.02(1). We note that Pharm failed to raise either of these claims in his motion to dismiss and, therefore, because he raises these arguments for the first time on appeal they are not properly before this court. See Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980) (an appellate court will generally not review an issue raised for the first time on appeal). Thus, we decline to address these issues.

B. The chapter 980 petition was timely filed.

¶ 10. Pharm argues that the chapter 980 petition was not timely filed. WISCONSIN Stat. § 980.02(2)(ag) requires that chapter 980 petitions be filed "within 90 days of discharge or release, on parole or otherwise, from a sentence that was imposed for a conviction for a sexually violent offense." In the instant case the District Attorney's office filed the chapter 980 petition on Pharm's mandatory release date. Pharm argues that under State v. Bollig, 222 Wis. 2d 558, 587 N.W.2d 908 (Ct. App. 1998), his mandatory release date is excluded from the calculation of the ninety-day time limit. See id. at 572 ("When a time limit is measured from an event, the day on which the event takes place is excluded from the computation."). Pharm concludes that because his mandatory release date must be excluded from the ninety-day time limit, the petition, which was filed on his mandatory release date, was not timely-and, therefore, the trial court lacked competency to proceed.

¶ 11. Failure to comply with the ninety-day time limit contained in Wis. Stat. § 980.02(2)(ag) affects the trial court's competency to proceed. See State v. Zanelli, 212 Wis. 2d 358, 368, 569 N.W.2d 301 (Ct. App. 1997). A court's competency to proceed is a question of law, which we review de novo. See Bollig, 222 Wis. 2d at 563. To resolve this issue, we must interpret and apply § 980.02(2)(ag) and Wis. Stat. § 990.001(4)(a) and (d), which also presents this court with a question of law, which we review de novo. See State v. Carpenter, 197 Wis. 2d 252, 275, 541 N.W.2d 105 (1995). After conducting an independent review of the record, we are satisfied that the petition was timely filed and, therefore, the trial court was competent to proceed.

¶ 12. In order to determine whether the petition was timely filed under Wis. Stat. § 980.02(2)(ag), this court must determine whether Pharm's mandatory release date was "within 90 days of [his] discharge or release." This question turns on the proper method of calculating the ninety-day time limit. Pharm argues that his mandatory release date should be excluded from the calculation of the ninety-day limit because, he reasons, it is the day on which an event is to take place, or, in other words, the first day of the time period. We disagree.

¶ 13. The proper method of calculating statutory time limits is set forth in Wis. Stat. § 990.001(4). Section 990.001(4)(a) provides that, "[t]he time within which an act is to be done or proceeding had or taken shall be computed by excluding the first day and including the last." Section 990.00l(4)(d) provides that when a time limit is measured from an event or a day on which an event occurred, the day on which the event took place shall be excluded from the calculation. Essentially Pharm argues that his release date is the day on which the event occurred and, as such, his release date is the first day of the ninety-day period. Therefore, Pharm contends that because his release date is the first day of the ninety-day period, it must be excluded from the calculation. Pharm is mistaken. We look to Pufahl v. Williams, 179 Wis. 2d 104, 506 N.W.2d 747 (1993), for instruction.

¶ 14. In Pufahl, our supreme court affirmed a court of appeals' decision reversing the circuit court, which held that an action was barred if brought on the anniversary date of the accrual of that action. The court held that the day that a cause of action accrues is not to be included in computing the time period for statute of limitation purposes. See id. at 107. To draw an analogy from Pufahl, Pharm is asking this court to conclude that his mandatory release date is the day the "cause of action accrues" and, therefore, the release date should be excluded for purposes of calculating the ninety-day limit. We cannot so conclude. Pharm is attempting to apply a conventional method of calculating time limits, such as that used in determining when a statute of limitations expires, to the ninety-day period involved here; however, such a conventional application does not work. The Pufahl analogy demonstrates the fundamental difference between calculations of conventional statutes of limitations, and the calculation of the ninety-day time limit involved here.

¶ 15. The court in Pufahl held that the day that the cause of action accrues is not included in calculating the time limit, but the last day of the time period is included. In conventional statute of limitations cases like Pufahl, an occurrence triggers the beginning of a time period that runs prospectively to a fixed point in time. However, here the calculation of the time period in WlS. Stat. § 980.02(2)(ag) must be made retrospectively from an occurrence — the release date — backwards in time to a date ninety days before the release date. That date is then fixed in time. As the inmate is serving his sentence, once he reaches that fixed date, i.e., the ninety days before release, the time begins to run prospectively until he reaches his release date. Thus, the date fixed in time ninety days prior to the release date is the date on which the "cause of action accrues" and, therefore, that date is excluded from the ninety-day time limit, but the last day, the release day, is included. See also WlS. STAT. § 801.15(l)(b). Thus, we conclude that the chapter 980 petition, filed on Pharm's mandatory release date, was timely filed.

C. Pharm's underlying conviction for indecent behavior with a child constitutes a predicate offense.

¶ 16. Following the evidentiary phase of the trial, Pharm again moved to dismiss the petition, this time arguing that the indecent behavior with a child and sexual perversion charges, as set out in the 1973-74 statutes, do not constitute predicate offenses under chapter 980. The State conceded that sexual perversion did not constitute a predicate offense. However, the State asserted that although the statutory section prohibiting indecent behavior with a child had been repealed, the conduct described by the statute was still prohibited under a different statutory section. The trial court agreed and, consistent with State v. Irish, 210 Wis. 2d 107, 565 N.W.2d 161 (Ct. App. 1997), denied Pharm's motion to dismiss.

¶ 17. Pharm argues that the trial court erred when it denied his motion to dismiss. Pharm asserts that his conviction for indecent behavior with a child contrary to Wis. Stat. § 944.11(3) (1973-74) does not fall within the definition of a sexually violent offense and, therefore, cannot serve as a predicate offense for a chapter 980 petition. Pharm contends that the legislature "[did] not provide that [his] conviction for indecent liberties almost a quarter century earlier under a repealed statute would be a predicate offense for a chapter 980 prosecution." Pharm concludes that the trial court erroneously found that, under Irish, indecent behavior with a child constituted a sexually violent offense for purposes of filing a chapter 980 petition. We disagree.

¶ 18. In Irish, this court first "determine[d] that the statutory definition of 'Sexually violent offense' found in ch. 980 [ ] is ambiguous." Id. at 110. We then examined the scope and history of the crime at issue, which had been repealed and recreated, and we concluded that the legislature intended "that anyone convicted under the former statute. . .could be convicted under the new one." Id. at 111. We concluded that this was so because the changes in the statute "broaden[ed] rather than restrict[ed] the scope of the offense." Id. Finally, this court looked to chapter 980's historical background and "broad temporal scope" to support our conclusion. Id. at 112-13. Applying the same reasoning to the instant case leads to the same conclusion and, therefore, we are satisfied that the legislature intended to include convictions for indecent behavior with a child under the former statute in the definition of "sexually violent offense."

¶ 19. Extrapolating from Irish, we conclude the legislature clearly intended to include, within the definition of "sexually violent offense," the conduct prohibited under a previous version of a statute enumerated in Wis. Stat. § 980.01(6), as long as the conduct prohibited under the predecessor statutes remains prohibited under the current enumerated statute. The record reveals that Pharm's conviction for indecent behavior with a child concerned Pharm's placing his penis in a seven-year-old girl's mouth, in violation of WlS. Stat. § 944.11(3) (1973-74). Pharm's conduct, prohibited under a different statutory section in the 1973-74 Wisconsin Statutes, remains prohibited under a statutory section currently listed as a predicate offense in § 980.01(6). In 1975, the legislature repealed § 944.11, see Laws of 1975, ch. 184, § 8, and created Wis. Stat. § 940.225, see id. at § 5, which prohibited, inter alia, sexual contact or intercourse with a person twelve years of age or under. See Wis. Stat. § 940.225(l)(d) (1977). The legislature defined sexual intercourse as including an act of fellatio. See Wis. Stat. § 940.225(5)(c)(1977). Then, in 1987, the legislature repealed § 940.225, see 1987 Wis. Act 332, § 30, and created Wis. STAT. § 948.02(1), see id. at § 55, prohibiting sexual intercourse, including fellatio, with a person under the age of thirteen years. Section 948.02(1) is specifically enumerated as a predicate offense under § 980.01(6). Therefore, Pharm's conduct, which was prohibited under an earlier statutory section, remains prohibited under the current enumerated statutory section.

¶ 20. Moreover, Pharm's interpretation of the statute would render certain sections of the statute meaningless and lead to absurd results. Accord Peters v. Menard, Inc., 224 Wis. 2d 174, 189, 589 N.W.2d 395 (1999) (statutes should be construed so as to avoid absurd results); State v. Setagord, 211 Wis. 2d 397, 427, 565 N.W.2d 506 (1997) ("Statutes are to be construed to avoid rendering part of the statute meaningless or superfluous."). If we were to adopt Pharm's construction of the statute, the only individuals who would meet the criteria as sexually violent persons under Wis. Stat. § 980.01, would be those individuals convicted under any of the currently enumerated statutory sections. Individuals engaging in similar conduct but convicted under different statutory sections either prior to the creation of the enumerated sections or at some point in the future after those sections have been amended or repealed, would not be subject to chapter 980 proceedings. Such a result was not intended by the legislature and is clearly absurd.

¶ 21. Wisconsin. Stat. §980.13 supports our interpretation. Section 980.13 provides: "This chapter applies to a sexually violent person regardless of whether the person engaged in acts of sexual violence before, on or after June 2,1994." Clearly the legislature expected the sexually violent person commitment proceedings to include an individual who committed acts of sexual violence before June 2, 1994, and thus this individual might have been sentenced before enactment of the current enumerated statutory sections. Applying Pharm's view, we would be required to conclude that even if an individual committed acts prohibited under the current statutes, but prior to the enactment of chapter 980, that individual could not be the subject of commitment proceedings. Adopting Pharm's construction would render § 980.13 meaningless in those situations. We would also be forced to arrive at the same conclusion in the future if and when the current enumerated statutory sections would ever be repealed. We find this interpretation to be unreasonable.

¶ 22. Finally, such a narrow interpretation of Wis. Stat. § 980.01(6) contradicts the underlying purpose of chapter 980. Chapter 980 addresses the public's concern over the danger posed by sexually violent persons who are released from their sentences and the legislative attempts to protect the public from sexually violent persons who remain at substantial risk to re-offend, and to create appropriate settings for treating these sexually violent persons. See State v. Carpenter, 197 Wis. 2d 252, 276, 451 N.W.2d 105 (1995); see also id. at 277 (Bablitch, J., concurring). Pharm fails to demonstrate, and this court fails to discern, how chapter 980's underlying purpose is served by such a narrow construction. On the contrary, the public is protected and sexually violent individuals are treated by construing chapter 980 to be applicable to all individuals who engaged in behavior prohibited under the statutes currently listed in § 980.01(6), and those individuals convicted of similar conduct under some other earlier statutory section.

D. Filing the chapter 980 petition with a criminal case number did not affect the court's subject matter .jurisdiction.

¶ 23. Pharm contends that "a civil action has never been timely filed in this case" because the District Attorney's office filed the original chapter 980 petition with a criminal case number instead of a civil case number. Pharm asserts that a civil case number is required in a chapter 980 proceeding and, therefore, the defect constitutes a fundamental error. Pharm concludes that, because the filing defect constitutes a fundamental error, the trial court lost "competency to exercise its subject matter jurisdiction." We disagree.

¶ 24. Pharm correctly asserts that "[a] commitment under chapter 980 is a civil commitment proceeding." However, there is nothing in chapter 980 to support Pharm's argument that the circuit court lacks subject matter jurisdiction on a chapter 980 petition unless the petition is filed under a civil case number and reviewed in the civil branch of the court. Wisconsin's circuit courts are courts of general jurisdiction. See WlS. Stat. § 753.03; see also Mack v. State, 93 Wis. 2d 287, 294, 286 N.W.2d 563 (1980). "No circuit court is without subject matter jurisdiction to entertain actions of any nature whatsoever." Mueller v. Brunn, 105 Wis. 2d 171, 176, 313 N.W.2d 790 (1982); see also WlS. Stat. § 753.03 ("The circuit courts have the power to hear and determine, within their respective circuits, all civil and criminal actions and proceedings unless exclusive jurisdiction is given to some other court."). Further a circuit court reviewing a chapter 980 petition must adhere to the rules of civil procedure contained in chapters 801 to 847. See State v. Brown, 215 Wis. 2d 716, 718-19, 573 N.W.2d 884 (Ct. App. 1997) (holding that there is no language in chapter 980 prescribing a different procedure than that embodied in chapters 801 to 847, which govern all civil actions and procedures). Inasmuch as Pharm has not argued that the trial court did not follow the proper procedure for reviewing chapter 980 petitions, we assume that the trial court acted properly. As long as the court conducting the proceedings follows the rules of civil procedure as indicated above, it is immaterial whether the petition is filed with a civil or criminal case number, or whether a judge currently assigned to the civil or criminal branch presides over the proceedings.

E. Pharm's trial counsel was not ineffective.

¶ 25. Pharm argues that his trial counsel was ineffective for: (1) failing to object to an exhibit and testimony offered by Dr. Doren regarding Pharm's credibility, and (2) failing to argue that "substantial probability" required a specific definition.

¶ 26. The familiar two-pronged test for ineffective assistance of counsel claims requires defendants to prove (1) deficient performance and (2) prejudice. See Strickland v. Washington, 466 U.S. 668, 690 (1984); see also State v. Sanchez, 201 Wis. 2d 219, 236, 548 N.W.2d 69 (1996) (holding that the Strickland analysis applies equally to ineffectiveness claims under the state constitution). If the defendant has failed to prove one prong, we need not address the other prong. See Strickland, 466 U.S. at 697. We will strongly presume that counsel has rendered adequate assistance. See id. at 690. Finally, on appeal, the trial court's findings of fact will be upheld unless they are clearly erroneous, see State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985), but proof of either the deficiency or the prejudice prong is a question of law which we review de novo, see id. at 634.

¶ 27. If Pharm's postcommitment motion alleges facts which, if true, would entitle him to relief, the trial court has no discretion and must hold an evidentiary hearing. See State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996). However, if the motion fails to allege sufficient facts, presents only conclusory allegations, or if the record conclusively demonstrates that Pharm is not entitled to relief, the trial court has the discretion to deny the motion without a hearing. See id. at 309-10. We will only reverse this decision upon an erroneous exercise of discretion. See id. at 311. We are satisfied that the trial court properly exercised its discretion in denying Pharm's postcommitment motion for ineffective assistance of counsel, without a hearing.

1. Dr. Doren's testimony

¶ 28. Dr. Doren testified that, in resolving the conflicts between Pharm's and Pharm's ex-wife's recitation of the events, he found Pharm's ex-wife to be a credible witness, believing her version of the incidents, and disbelieving Pharm's. Dr. Doren also used a chart to explain why his conclusions were supportable. Pharm argues that Dr. Doren's testimony and the exhibit "constituted an improper comment on [his] truthfulness," citing State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1985), and State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984). Pharm asserts that the determination that he would not testify was not made until the close of the State's case, and that it was decided he would not testify because of Dr. Doren's testimony. Pharm maintains that, "[b]y telling the jury in the state's case that Dr. Doren thought he had very poor credibility and giving numerous specific instances [of Pharm's untruths], [Dr. Doren] was essentially informing the jury [that] if [ ] Pharm gave a statement in court he should not be believed." Pharm concludes that not only did this testimony constitute an impermissible comment on his truthfulness, but it also chilled his ability to testify in his own defense and, therefore, his trial counsel was ineffective for failing to object to the admission of this testimony at trial. We disagree.

¶ 29. In its decision denying Pharm's postcom-mitment motion, the trial court found that Pharm's trial counsel was not ineffective for failing to object to Dr. Doren's testimony because, had a proper objection been made, the trial court determined it would have allowed the testimony. The trial court asserted that under Wis. STAT. §§ 907.03-907.05, an expert, Dr. Doren in this instance, may explain the facts and data upon which he is basing his opinion. The trial court observed that Dr. Doren had interviewed Pharm and examined the available records in order to form an opinion about whether Pharm met the definition of a sexually violent person under Wis. STAT. Ch. 980. The trial court found that Pharm's statements regarding his prior crimes and sexual assaults were relevant to Dr. Doren's opinion that Pharm suffered from a mental disease or defect. The trial court asserted that "Dr. Doren substantiated his belief that Pharm was untruthful in some respects with specific documentation based on his interview with Pharm and the documented statements Pharm made to authorities." The trial court concluded that, because Dr. Doren's expert testimony was admissible under §§ 907.03-907.05, in order to explain the facts and data he relied on in forming his opinion that Pharm met the definition of a sexually violent person, it would have allowed the testimony over an objection by defense counsel. Therefore, Pharm's trial counsel was not ineffective for failing to object to Dr. Doren's testimony. We agree.

¶ 30. In Jensen, a case cited by Pharm, the court concluded that although an expert witness can not offer an opinion regarding whether the complainant had in fact been victimized, or ultimately whether the complainant was telling the truth, an expert witness can offer an opinion if the testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue." Jensen, 147 Wis. 2d at 256; see also State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 92 (Ct. App. 1984) (expert's opinion that there "was no doubt whatsoever" that the complainant was an incest victim constituted an impermissible opinion that the complainant was telling the truth). Here, the trial court correctly recognized that Dr. Doren was called to offer his expert opinion regarding whether Pharm met the statutory definition of a sexually violent person. Dr. Doren concluded that Pharm did meet the definition of a sexually violent person, and we are satisfied that his testimony fell within the permitted parameters as it was necessary to assist the jury in understanding the evidence he relied on in arriving at this conclusion. Therefore, Jensen, supports the trial court's conclusion that Dr. Doren's testimony was properly admissible, and that any objection by defense counsel would not have been successful.

¶ 31. Moreover, the prejudicial effect, if any, of Dr. Doren's testimony was diluted because the trial court explicitly instructed the jury that it (the jury) was the sole judge of a witness's credibility. The jury was also instructed that expert testimony regarding the information relied on in forming opinions could be considered only as it related to the expert witness's credibility and the weight to be given to the expert's testimony. This court should presume that the jury followed the Instructions given to them by the trial court. See State v. Smith, 170 Wis. 2d 701, 719, 490 N.W.2d 40 (Ct. App. 1992).

¶ 32. For these reasons, we conclude that the trial court properly determined that Pharm's trial counsel was not ineffective for failing to object to Dr. Doren's testimony.

2. "Substantial probability."

¶ 33. Finally, Pharm argues that trial counsel was ineffective for failing to argue that "substantial probability" should be defined as "highly likely" under State v. Zanelli, 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997), or "extreme likelihood" consistent with chapter 51. Pharm posits that at a minimum counsel should have objected when the trial court provided no definition at all. Pharm contends that "[c]ounsel's failure to make such challenges or at least to present an argument based on Zanelli, to the trial court, falls below an objective standard of reasonableness." We reject Pharm's argument.

¶ 34. Pharm's assertion that his counsel was ineffective for failing to challenge the pattern jury instruction on the grounds that it does not define "substantially probable" is conclusory. In Zanelli, we held that it is not error or an erroneous exercise of discretion for a court to use Wis JI — Criminal 2502, which does not define the term "substantially probable." Zanelli, 212 Wis. 2d at 372-75 (comparing failure to define "substantially probable" with failure to define "beyond a reasonable doubt" in a criminal case in that the constitution neither prohibits trial courts from defining the terms, nor requires trial courts to define the terms); but see State v. Curiel, 227 Wis. 2d 389, 597 N.W.2d 697 (1999) (holding that the term "substantially probable" as used in ch. 980 is unambiguous and must be defined as "much more likely than not" consistent with the common and appropriate usage of the term). Consequently, any allegation by Pharm that the trial court would have upheld a challenge to the jury instruction, had it been made, is conclusory. Thus, we conclude that with regard to Pharm's claims of ineffective assistance of trial counsel, first, the record conclusively demonstrates that Pharm is not entitled to relief and, second, Pharm merely presents conclusory allegations and, therefore, the trial court properly exercised its discretion in denying Pharm's postconviction motion without a hearing. For the reasons stated, this court affirms.

By the Court. — Judgment and orders affirmed.

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

       We note that Pharm was charged under the 1973-74 version of the Wisconsin Statutes, but he was not convicted until 1988. The facts surrounding Pharm's criminal history are complicated and not always clear based on the record submitted to this court. Piecing together the available information, it appears that in 1975, Pharm committed the acts that led to the criminal charges for indecent behavior with a child and sexual perversion. Before Pharm was arrested on the sexual assault charges, he fled to Nevada. In 1976, Pharm was charged with committing a murder and a rape in Nevada. Although no court documents or other records from Nevada are included in the record, the limited information provided indicates that the rape charges were eventually dropped; however, Pharm was convicted of murder and sentenced to life imprisonment in 1977. Near the end of his sentence for murder in Nevada, it was discovered that Pharm had been using an alias in Nevada and that a warrant for his arrest had been issued in Wisconsin under his real name. In 1988, he was extradited to Wisconsin where he was tried and convicted for the 1975 crimes and it was his mandatory release date for those crimes that triggered this litigation.

       Dr. Cooper testified that she had prepared two reports regarding Pharm's eligibility for commitment under chapter 980. In the first report, Dr. Cooper concluded that Pharm suffered from an anti-social personality disorder, and that he was sexually attracted to females, non-exclusive, which, Dr. Cooper testified, meant that Pharm is attracted to both adult and juvenile females. Dr. Cooper also testified that at the time she completed the first report she strongly suspected that Pharm also suffered from pedophilia, but that she didn't have sufficient' information to confirm her suspicions. In this first report, Dr. Cooper concluded that Pharm was "at fairly high risk" of reof-fending, but that she did not believe "that he was at a substantially high risk." Therefore, Dr. Cooper did not recommend that Pharm be committed
      However, Dr. Cooper then testified regarding a second report she had prepared. After preparing the first report, Dr. Cooper learned of new information regarding Pharm's history. Dr. Cooper became aware that Pharm had sexually assaulted a victim previously unknown to Dr. Cooper. Armed with this new information, Dr. Cooper reevaluated Pharm's case and concluded that the new information confirmed her belief that Pharm suffers from pedophilia as well as anti-social personality disorder. Dr. Cooper amended her report to reflect this conclusion and recommended that Pharm be committed under chapter 980.

        State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 903 (Ct. App. 1979).

       We note that on appeal Pharm fails to raise this issue in relation to his motion to dismiss; instead, he raises it as a separate substantive issue. Because Pharm raised this issue before the trial court he has preserved it for purposes of this appeal and we shall consider it in the next section as a separate substantive issue.

       Wisconsin Stat. § 801.15(l)(b) provides:
      Notwithstanding ss. 985.09 and 990.001(4), in computing any period of time prescribed or allowed by chs. 801 to 847, by any other statute governing actions and special proceedings, or by order of the court, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included ....

       We are mindful of the fact that in Milwaukee County, for security reasons, it may be more prudent to conduct chapter 980 proceedings in the secure courtrooms used for criminal trials rather than the non-secure courtrooms assigned to civil branches.

       In his postcommitment motion, Pharm also claimed that trial counsel was ineffective for failing to argue that the circuit court lacked competency to proceed because the petition was filed with a criminal case number instead of a civil case number. However, on appeal Pharm does not include this argument with his claims of ineffective assistance of counsel; rather, he raises the issue as a substantive claim of error. In the preceding section we addressed the merits of Pharm's substantive claim and concluded that the trial court was competent to proceed.

       This court acknowledges the supreme court's decision in State v. Curiel, 227 Wis. 2d 389, 597 N.W.2d 697 (1999), in which the court held that the term "substantially probable," as used in Wis. Stat. ch. 980, is unambiguous and must be defined as "much more likely than not." However, what effect, if any, the court's decision in Curiel has on State v. Zanelli, 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997), as well as the instant action, is unclear. First, we note that the Curiel opinion was filed in May of 1999, well after the trial court in the instant action decided Pharm's postcommitment motion. Next, the Curiel opinion is devoid of any reference or citation to Zanelli, and to the extent that Curiel calls Zanelli into question, it does so by implication. Further, we note that Zanelli has never been overruled, reversed, questioned or criticized; in fact our supreme court twice declined to review the decision. Review denied by State v. Zanelli, 215 Wis. 2d 423, 576 N.W.2d 279 (1997); following appeal after remand review denied by State v. Zanelli, 228 Wis. 2d 173, 602 N.W.2d 759 (1999). Therefore, we shall presume that our original decision in Zanelli remains good law and we shall apply that decision to Pharm's claim in the instant appeal.


author: SCHUDSON, J.

text:
    Fred A. Barry, Plaintiff-Appellant-Cross-Respondent, v. Employers Mutual Casualty Company, a foreign corporation, Defendant, Ameritech Corporation, f/d/b, Wisconsin Bell, Inc., a domestic corporation, Defendant-Third-Party Plaintiff-Respondent-Cross-Appellant, v. Dave Trojan Contractors, Inc., a domestic corporation, Continental Western Insurance Company, a foreign corporation, Third-Party Defendant-Cross-Respondent, The Burgmeier Company, Inc., a domestic corporation and Aetna Casualty & Surety Company, a foreign corporation, Third-Party Defendant.
    Court of Appeals

      No. 98-2557.

      Submitted on briefs May 2, 2000.

    Decided July 5, 2000.

    2000 WI App 168
    (Also reported in 617 N.W.2d 493.)

      On behalf of the plaintiff-appellant-cross-respondent, the cause was submitted on the briefs of Michael I. Tarnoff, of Warshafsky, Rotter, Tarnoff, Reinhardt & Bloch, S.C., of Milwaukee.

      On behalf of the defendant-third-party plaintiff-respondent-cross-appellant, the cause was submitted on the briefs of Peter F. Mullaney of Peterson, Johnson & Murray, S.C., of Milwaukee.
    On behalf of the third-party defendant-cross-respondent, the cause was submitted on the brief of Thomas A. Ogorchock, oí Miller & Ogorchock, S.C., of Milwaukee.
    On behalf of the Wisconsin Academy of Trial Lawyers, there was a nonparty brief filed by David M. Skoglind.

    Before Fine, Schudson and Curley, JJ.

      Petition to review granted.

   SCHUDSON, J.

¶ 1. Fred A. Barry appeals from the judgment, following a jury trial, awarding him $36,225 plus costs, in his action against Ameritech Corporation, resulting from his fall on a stairway at the Ameritech offices where he had been working. Barry argues: (1) under the safe-place statute, Ameritech had a nondelegable duty such that the causal negligence of The Burgmeier Company, Inc., an independent contractor hired by Ameritech to maintain the stairway, should have been imputed to Ameritech; (2) retroactive application of Wis. Stat. § 895.045 (1995-96), precluding joint and several liability in this case, is unconstitutional; and (3) no credible evidence supported the jury's finding that he was 10% causally negligent.

¶ 2. Ameritech cross-appeals. Ameritech argues that the trial court erred: (1) in concluding that the stairway condition causing Barry's fall was "a structural defect"; and (2) in not instructing the jury, therefore, that in order for Barry to prevail, he had to prove Ameritech's actual or constructive notice of the defect. Thus, Ameritech argues, the trial court erred in denying its motion for judgment notwithstanding the verdict. Ameritech also argues that the trial court erred in formulating a jury question regarding indemnification of Dave Trojan Contractors, Inc., Barry's employer.

¶ 3. We conclude that the trial court erred in determining that the stairway condition was "a structural defect." Because the condition was not "a structural defect," but rather, was "an unsafe condition associated with the structure," Barry would have had to prove that Ameritech had actual or constructive notice of the condition. The record does not establish that Barry did so, and the jury never was instructed regarding either the need for notice or the definition of notice. Therefore, we conclude that the trial court erred in denying Ameritech's motion for judgment notwithstanding the verdict.

I. BACKGROUND

¶ 4. Barry worked as a project manager for Trojan, a general contractor providing services at Ameritech's data center offices in 1992 and 1993. On January 7, 1993, Barry returned to the Ameritech offices to prepare a proposal for additional work, to verify that Trojan employees had returned the Amer-itech security cards they had used while working there, and to visit with some Ameritech employees. Barry was injured when he fell on a winding stairway, apparently after tripping on a loose "nosing" — the narrow rubber strip covering the full length of the front edge of each carpeted step. The nosings were not part of the original stairway. They had been installed for aesthetic purposes, and to eliminate the need for repeated regluing of the front edges of the carpeting covering the stairs. After Barry's fall, inspection revealed that the nosings on several steps, including the one where Barry tripped, had come loose apparently due to the failure of the adhesive holding them to the steps.

¶ 5. Barry sued Ameritech under the safe-place statute. Ameritech, in turn, brought a third-party action against Burgmeier, the contractor responsible for installation of the nosings. Ameritech also brought a third-party action against Trojan, for indemnification pursuant to the Ameritech/Trojan contract under which Barry was working. The jury found Ameritech 45% negligent, Burgmeier 45% negligent, and Barry 10% negligent.

¶ 6. We begin with the cross-appeal because, as Ameritech explains, "[t]he issues raised in Barry's appeal are relevant only if this court affirms the jury verdict apportioning 45% of the causal negligence to Ameritech." Barry does not dispute that if Ameritech is correct in its cross-appeal challenge to the trial court's safe-place statute ruling that the stairway defect was "structural," and if the trial record does not establish that Ameritech had actual or constructive notice of the loose nosing, then the jury's verdict cannot stand.

II. DISCUSSION

A. "Structural" / "Associated With the Structure"

¶ 7. Was the stairway condition a "structural" defect, or was it "an unsafe condition associated with the structure"? Barry and Ameritech agree that the distinction is critical and, as we will explain, the answer makes a dispositive difference in this case.

¶ 8. "The safe-place statute requires a place of employment to be kept as safe as the nature of the premises reasonably permits." Strack v. Great Atl. & Pac. Tea Co., 35 Wis. 2d 51, 54, 150 N.W.2d 361 (1967). "The various conditions of which safe-place law takes cognizance have been classified as (A) structural defects, (B) unsafe conditions associated with the structure, and (C) unsafe conditions unassociated with the structure." HOWARD H. BOYLE, Jr., WISCONSIN SAFE-Place Law Revised 139 (1980). In this case, Barry and Ameritech debate whether the stairway condition falls in the first or second category.

¶ 9. If a condition that causes injury is "a structural defect," "[a]n owner or employer sustains safe-place liability . . . regardless of whether he [or she] knew or should have known that such defect existed." Id. at 157. If, however, a condition that causes injury is not "a structural defect," but rather, is "associated with the structure," "no liability attaches" to the owner or employer "until he [or she] has 'either actual or constructive notice of such defects,' and an opportunity 'to remedy the situation and avoid the accident.'" Id. at 158-59. Whether a condition is "a structural defect" or "associated with the structure" presents an issue of law and, therefore, the trial court's resolution of that issue is subject to our de novo review. See Gloudeman v. City of St. Francis, 143 Wis. 2d 780, 784, 422 N.W.2d 864 (Ct. App. 1988) ("Appellate courts decide questions of law independently and give no deference to the decisions of a trial court."); see also Geiger v. Milwaukee Guardian Ins. Co., 188 Wis. 2d 333, 336, 524 N.W.2d 909 (Ct. App. 1994) ("Interpretation of the safe-place statute is a question of law which we review de novo.").

¶ 10. In this case, the trial court ruled that the stairway nosing condition was "a structural defect." After reviewing many examples of "structural" defects and "associated with the structure" defects described in the case law and summarized in the BOYLE treatise, the court concluded:

So, I guess you can have examples that go both ways. It depends on the circumstances of each case.
In this case, it seems to me that the stairs were designed to be a metal can [sic] filled with concrete, and as I gather the testimony from the engineers, covered by carpeting, that that was part of the structural plan.... Ameritech was aware that there was a problem with the stairs because Mr. Barry was one of the people called to come out there to see if something could be done to fix that stairway and the loose carpeting. And the gentleman in charge of that testified that he finally came up with a plan that involved putting one of those tack boards underneath the tread and pulling the carpeting over it to hold it in place. But before that, the manner in which they determined the structure was to be maintained was to put those nose guards on there.
I'm going to hold, and I do hold, that the nose guards therefore then became part of the structure, and if it was a defect, it was a structural defect.

(Footnote added.) Therefore, the court concluded, Barry was not required to prove that Ameritech had actual or constructive notice. Accordingly, the trial court did not instruct the jury on notice.

¶ 11. As the parties note, no single case has precisely defined and distinguished "structural defects" and "unsafe conditions associated with the structure." As Ameritech correctly argues, however, "[t]he cases as a whole . . . suggest that defects in original design or construction are structural." In contrast, modifications of, or additions to, the original structure may render "unsafe conditions associated with the structure."

¶ 12. "[A] defect would be 'structural' if it resulted by reason of the materials used in construction or from improper layout or construction." Boyle at 140. "Conditions 'associated with the structure,'" on the other hand, "are those which involve the structure (or the materials with which it is composed) becoming out of repair or not being maintained in a safe manner." Id. at 143. While these definitions may not easily apply to all circumstances, they do articulate the general consensus that emerges from the numerous safe-place-statute cases considered in the Boyle treatise, and should provide a workable framework for most situations. Clearly, they provide a solid structure on which we can resolve the instant appeal.

¶ 13. Generally, under the Boyle definitions, "unsafe conditions associated with the structure" are not those of a building's original design or construction. Instead, they arise from any number of circumstances stemming from subsequent repair, maintenance or modification. Not surprisingly, therefore, unsafe stairways may have defects that are either "structural," or "associated with the structure," depending on the facts. Wisconsin case law provides several examples of stairway defects that are structural. As Boyle summarizes:

Defects in connection with steps are structural in nature where such steps do not have non-slip surface as required by [Department of Industry, Labor and Human Relations] orders, where they lead to unsafe ground, and where they are so located as not to be anticipated. Absence of a handrail on stairways, where the same is required by safety orders, is a structural matter.

Boyle at 140-41 (footnotes omitted). All these conditions relate to the original stairway structure, location, and safety codes or requirements. Such stairway defects render dangers unrelated to any repair, maintenance, or modification; that is, the stairways would have been as unsafe at the time of their finished construction as at the time of a subsequent fall. Thus, these defects differ significantly from the stairway defect in the instant case.

¶ 14. The trial court accurately acknowledged that "the manner in which [Ameritech] determined the structure was to be maintained was to put those nose guards on there." (Emphasis added.) But the trial court failed to reach the rather obvious corollary: nosings added to the original stairway are not part of the original structure, but rather, are "associated with the structure." To conclude otherwise would be to accept what Ameritech terms "circular reasoning," effectively "transmogrifying] all maintenance and repair defects into structural defects." Thus, we conclude that the trial court erred in ruling that the stairway nosing defect was "structural."

B. Notice

¶ 15. The supreme court has explained that, because "the owner of a place of employment is not an insurer of frequenters of [the] premises, in order to be liable for a failure to correct a defect, [the owner] must have actual or constructive notice of it." Strack, 35 Wis. 2d at 54 (citations omitted). Barry does not argue that Ameritech had actual notice of the stairway defect. He contends, however, that "the record contains very substantial evidence of both Ameritech's constructive notice of the loose nosings, as well as Ameritech's negligence in failing to remedy that defect." See generally Kaufman v. State St. Ltd. Partnership, 187 Wis. 2d 54, 59-65, 522 N.W.2d 249 (Ct. App. 1994) (regarding constructive notice).

¶ 16. Barry maintains, therefore, that even if the stairway defect was not "structural" and, as a result, he was required to prove that Ameritech had notice, he did so. Thus, Barry asserts, even if we conclude, as we have, that the stairway defect was a "condition associated with the structure," he proved constructive notice so the verdict and judgment should stand. We disagree.

¶ 17. Barry does not seek a new trial with the opportunity to prove constructive notice, as would be required under the proper "associated with the structure" standard. Instead, he asks that we review the evidence and conclude that he proved constructive notice. We decline to do so. Even if, after reading the trial transcript, we would accept Barry's theory of constructive notice, we certainly could not assume that the jury would have been convinced. After all, on appeal, both Barry and Ameritech point to evidence of notice, or lack thereof, and debate whether Ameritech had constructive notice. We need not resolve their debate. We need only acknowledge what, implicitly at least, Barry and Ameritech do not dispute: that a jury reasonably could conclude that the evidence, or lack thereof, did or did not establish Ameritech's constructive notice of the stairway nosing defect.

¶ 18. Thus, the jury would have had to consider the issue of whether Ameritech had constructive notice under the proper standard jury instruction which provides, in the last paragraph:

To find that (defendant) failed to (construct) (repair) or (maintain) the premises in question as safe as the nature of the place reasonably permitted, you must find that (defendant) had actual notice of the alleged defect in time to take reasonable precautions to remedy the situation or that the defect existed for such a length of time before the accident that (defendant) or its employees in the exercise of reasonable diligence (this includes the duty of inspection) should have discovered the defect in time to take reasonable precautions to remedy the situation. However, this notice requirement does not apply where (defendant)'s affirmative act created the defect.

Wis JI — Civil 1900.4. The paragraph is prefaced by the notation that it "should not be given where the defect is a structural defect." Id. Without this paragraph of the instruction, required in cases involving defective "conditions associated with the structure," we do not know whether the jury would have found that Ameritech had constructive notice.

¶ 19. Barry succeeded in convincing the trial court that the stairway defect was "structural." He argued that the last paragraph should not be included in the jury instruction, and the trial court agreed. Accordingly, the trial court did not instruct the jury as it would have, had Barry agreed with Ameritech that the defect was "associated with the structure." Barry's argument simply ignores the fact that the jury never received this instruction and, therefore, never was asked to consider notice.

¶ 20. On appeal, Ameritech urges that Barry's action be dismissed. In the alternative, Ameritech seeks a new trial "only to determine Trojan's contractual duty of indemnification" or "on the notice issue." But Barry does not seek a new trial with the inclusion of the notice instruction and with further opportunity to establish constructive notice. Barry does not seek a new trial, even in the alternative, in the event we reject his primary argument that the stairway defect was "structural." Instead, Barry insists that his evidence of constructive notice was sufficient. But by prevailing in his argument that the defect was "structural," Barry eliminated notice as a trial issue and effectively precluded the jury's consideration of what he now contends was substantial evidence of constructive notice.

¶ 21. Accordingly, we conclude that Ameritech is correct; the trial court should have granted its motion for judgment notwithstanding the verdict. See WlS. Stat. § 805.l4(5)(b).

By the Court. — Judgment reversed.

       The $36,225 plus costs was awarded to Barry and Employers Mutual Casualty Company. Throughout this litigation, Ameritech Corporation also was referred to as Wisconsin Bell, Inc. We will use "Ameritech" to refer to either Ameritech Corporation or Wisconsin Bell, Inc.

       All references to the Wisconsin Statutes are to the 1995-96 version unless otherwise noted.

       Resolution of the cross-appeal on this basis obviates the need to address any of the other issues on the appeal or cross-appeal. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need to be addressed).
      The judgment for Fred A. Barry also was in favor of Employers Mutual Casualty Company, the worker's compensation carrier for Barry's employer. Employers, however, does not appeal. The judgment also dismissed the third party complaints against Dave Trojan Contractors, Inc., and Continental Western Insurance Company; and The Burgmeier Company, Inc., and Aetna Casualty & Surety Company; and dismissed the claim of intervening plaintiff Midwest Security Life Insurance Company. None of those parties, however, has appealed.

       Barry's complaint alleged "safe place statute violations," but never cited or quoted a specific safe-place statutory provision. The balance of the record, however, clarified that his action was filed with reference to WlS. STAT. § 101.11(1) (1993-94) which provides:
      Every employer shall furnish employment which shall be safe for the employes therein and shall furnish a place of employment which shall be safe for employes therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employes and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe.

       Both in the trial court and on appeal, Barry and Amer-itech have relied on Howard H. Boyle, Jr., Wisconsin Safe-Place Law REVISED (1980), the treatise which the trial court aptly termed "the definitive work in this area." See Powell v. Milwaukee Area Technical College Dist. Bd., 225 Wis. 2d 794, 810-13, 594 N.W.2d 403 (Ct. App. 1999).

       The trial court's exact understanding of the stairway structure is somewhat in doubt. Denying Ameritech's motion for judgment notwithstanding the verdict, the trial court commented:
      In this case, as I recall, the steps were made out of metal. They can be made out of concrete and covered by carpet. Virtually, there was evidence that the nosing was permanently attached to the carpet to keep it from slipping.
      I think although it could be argued either way that the nosing here is not a temporary or easily moved structure, it's more like the situation [described in the Boyle treatise] where the bleacher seats came loose or nails protruded through the floor.
      And I think . . . my earlier ruling that this was a structural defect is correct.

       In fact, the "modification" may even be unintended. For example, in Boutin v. Cardinal Theatre Co., 267 Wis. 199, 64 N.W.2d 848 (1954), a movie theater patron injured his back when he "sat violently upon the floor" because the seat on which he had attempted to sit had no cushion. See id. at 201. The supreme court observed that while the theater seats were safe as originally constructed and installed, they needed "to be kept so" under the "duty of maintenance and repair" imposed by the safe-place statute. See id. at 202. But given that the defective seat was an unsafe condition associated with the structure, and not a structural defect in the original seat, the patron's safe-place claim was dismissed because he failed to prove that the owner had actual or constructive notice of the problem. See id. at 205.

       Barry argues that "adding nosings to each step ... is essentially a permanent reconstruction," and that "the nosings were intended to become a permanent... part of the stairway." ' Although Barry's implicit theory is intriguing, it simply does not encompass the facts of this case.
      Granted, one could contemplate "a permanent reconstruction" which, while not part of the "original design or construction," could bring a modification within the scope of "structural defect." A remodeling, for example, could indeed introduce original new structures to an existing building. Though not parts of the original structure, these new additions could contain or render defects that would be "structural."
      Here, however, the addition of the nosings was but the latest in a series of repair and maintenance efforts aimed at enhancing the appearance of the original stairway. As Amer-itech explains, it made "a maintenance decision to install the rubber nosings, to eliminate the need for regluing the carpet to the step edges."

        Barry concedes that "re[ Igluing the front edges of the stairway carpeting might be an example of maintenance and repair," but he still submits that adding nosings was a permanent reconstruction. We disagree. It would make no sense to base a legal distinction on the slight factual difference between "re[ Jgluing the front edges of the stairway carpeting" and adding rubber nosings in an attempt to accomplish the same result. Although Ameritech, no doubt, hoped that the nosings would do the job and, therefore, become permanent additions, such hoped-for permanence does not make the nosings "structural." In fact, given the nature and purpose of the nosings, they seem to be an excellent example of a maintenance modification that captures the phrase, "associated with the structure."

       Although some portions of the jury instruction conference were not reported, the record clearly reflects that Barry, consistent with his position that the stairway defect was "structural," opposed the inclusion of the last paragraph of Wis JI — CIVIL 1900.4. Ameritech, requested the jury instruction, including the last paragraph.
      We note that when the jury conference proceedings resumed on the record and the trial court announced its intended instructions, Ameritech voiced no objection to the "form of the verdict or the instructions." We read that, however, as Ameritech's acquiescence to the necessary exclusion of the last paragraph only in light of the trial court's rejection of Amer-itech's primary position: that the defect was "associated with the structure." The record further establishes that Ameritech consistently maintained throughout the trial, including its motions (for directed verdict, to change the jury's answer, and for judgment notwithstanding the verdict), that because the stairway defect was not "structural," but rather, was "associated with the structure," notice was a critical issue.

       Wisconsin Stat. § 805.14(5)(b) provides:

        Motion for judgment notwithstanding verdict. A party against whom a verdict has been rendered may move the court for judgment notwithstanding the verdict in the event that the verdict is proper but, for reasons evident in the record which bear upon matters not included in the verdict, the movant should have judgment.