author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Sheldon C. Stank, Defendant-Appellant.

    Court of Appeals

      No. 2004AP1162-CR.

      Submitted on briefs September 14, 2005.

      —Decided October 26, 2005.

    2005 WI App 236
    (Also reported in 708 N.W.2d 43.)

      On behalf of the defendant-appellant, the cause was submitted on the brief oí Dennis P. Coffey of Mawicke & Goisman, S.C. of Milwaukee.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Stephen W. Kleinmaier, assistant attorney general.
    Before Brown, Nettesheim and Anderson, JJ.

       Petition to review dismissed 11-28-05.

   BROWN, J.

¶ 1. Sheldon C. Stank appeals from judgments of conviction and an order denying his motion for postconviction relief. He raises a variety of contentions. He first claims that the physical evidence seized during a search warrant should have been suppressed because the witness who testified against him at the warrant application hearing was biased against him and possessed information too stale to support probable cause. Stank also claims that the court plainly erred by allowing the State to present bad character evidence in the form of weapons and publications. Finally, he states that the trial evidence did not support two elements of the count charging him with possession with intent to deliver Oxycontin while armed. He insists that no evidence exists to support such an intent to distribute the Oxycontin and that the forensic scientist's failure to test both samples of suspected Oxycontin made it impossible for the jury to determine the identity of the drug recovered. We disagree with all of these contentions and affirm. The court issuing the warrant found the witness credible and that his knowledge of ongoing large-scale drug trafficking supported a present finding of probable cause. Moreover, the weapons and reading material were highly relevant for reasons other than casting Stank in a bad light, such that any error in admitting the evidence is not obvious. Finally, we determine that the record supports the possession with intent to deliver charge. The jury had enough evidence to determine the identity of the Oxycontin from two experts' use of the Physician's Desk Reference as a presumptive, pharmaceutical identification, subsequent confirmatory testing of a pill in one of the samples, and other circumstantial evidence. We also find ample circumstantial evidence of intent to deliver the Oxycontin.

¶ 2. John Oehler and Stank met eleven or twelve years ago, and the two men became personal friends roughly four years ago. Oehler would see Stank on a weekly basis. In addition to being Oehler's friend, Stank also became a regular supplier of marijuana for Oehler. Oehler kept a ledger of his weekly purchases, which recorded transactions spanning from January to November of 2001. Often, Oehler would make his purchases at Stank's residence.

¶ 3. On November 14, the Milwaukee Police Department received an anonymous complaint. The complaint implicated Stank in possible drug trafficking, so an officer went to Stank's house to follow up. When nobody answered the door, the police left and apparently did not attempt to investigate further.

¶ 4. Some time in the fall of 2001, Stank invited Oehler to help him with a roofing job in Racine county, and Oehler accepted. The two men eventually had a falling out because of a dispute over whether Stank had fully paid Oehler for his assistance. Oehler began leaving numerous voice mail messages for Stank, some of them threatening.

¶ 5. The bad blood between the two men led to two police complaints against Oehler. First, Stank called the Milwaukee Police Department and reported a burglary of his home. This call prompted a detective to go out to Fond du Lac to question Oehler, which further angered Oehler. The second complaint, which the department received on December 14, regarded the harassing phone calls. This complaint ultimately led to Oehler's arrest later that day for unlawful use of a telephone.

¶ 6. Following the arrest, Oehler spoke with Detective Heck. Oehler brought up at that meeting the subject of Stank's drug trafficking. Detective Heck advised Oehler to contact Detective Glidewell on the department's vice squad about the matter and gave him a phone number to call. On January 6, Oehler did call the detective, and the two arranged to meet in person the following day. At that meeting, Oehler told Detective Glidewell about Stank's illicit activities and showed the detective his ledger of purchases. The following day, Detective Glidewell sought a search warrant and brought Oehler to court to testify about his knowledge of Stank's illegal activity.

¶ 7. At the warrant application proceeding, Oe-hler testified as follows: (1) he had been buying marijuana from Stank for ten to eleven years; (2) he had been to Stank's residence over five hundred times and purchased approximately $50 of marijuana from Stank on a weekly basis; (3) Stank kept the marijuana in the freezer compartment of a kitchen refrigerator and in an old garage freezer bound shut with bungie cords; (4) every time he went to the residence, he would see the same group of people there to buy drugs; (5) he had seen a firearm Stank kept at the house; and (6) he was upset with Stank over the payment dispute and for falsely accusing him of stealing his drugs and reporting him for the burglary and harassing phone calls. His anger prompted him to contact Detective Glidewell to report the drug activity. He admitted that the State had granted him use immunity in return for his testimony at the warrant application hearing.

¶ 8. Detective Glidewell also testified. He verified that he had seen Oehler's ledger of purchases and further mentioned the November 14 anonymous complaint he received. Additionally, he testified that in his experience, someone trafficking in controlled substances like marijuana for at least four-and-one-half to five years does not suddenly shut down operations.

¶ 9. The court granted the State's request for a warrant, and several members of the department's vice squad executed the warrant. The search turned up several drugs, weapons, and drug paraphernalia, including approximately three pounds of marijuana, Oxycontin, two marijuana pipes, grow lights, a scale, and eighteen firearms. Along with the guns, the police recovered ammunition, a flash suppressor for a gun, and a bulletproof vest. They also found several books on munitions. The titles of these books included, among others, (1) The Department of the Army Field Manual, Explosives and Demolitions; (2) A Full Auto Modification Manual, (3) Home Workshop Silencers; (4) The Anarchist's Black Book of Improvised Munitions; (5) Secret to Component High Explosive Mixtures and Improvised Shape Charges, Semi-Auto MAC-10 Modification Manual; and (6) How to Make Disposable Silencers, Complete Guide. The search also uncovered a High Times magazine.

¶ 10. Detective Glidewell uncovered the Oxycontin. While searching the upstairs, which Stank used as a bedroom, Detective Glidewell eventually noticed a black garbage can at the top of the stairs. When he looked inside the can, instead of seeing refuse, he found a paper grocery bag. He opened the bag to ascertain its contents and found some freezer Ziplock bags of different sizes containing marijuana. It also contained a loaded pistol and an unmarked prescription-style bottle of pills. The bottle contained thirty-seven pills, all of which were green, white, or yellow and had "OC" stamped on one side. The other side of each contained a number. The six green pills contained the number eighty, the twenty-nine yellow ones were marked with the number forty, and the two white pills had the number ten. All of them had a coating and an absence of scoring. Detective Glidewell testified that he identified these pills as Oxycontin pills of different milligrams.

¶ 11. After he discovered the bottle of Oxycontin, Detective Glidewell searched Stank's bedroom closet. There he found two marijuana pipes, an SKS rifle, a Winchester rifle, a Mac-11 handgun, and another bag with pills in the general vicinity of a yellow envelope containing seven hundred-dollar bills. The bag contained twenty green pills identical in appearance to the green pills in the prescription bottle.

¶ 12. At some point during the execution of the search warrant, Stank arrived at the residence. Detective Glidewell searched him and recovered a bag of marijuana. The detective then placed Stank under arrest.

¶ 13. Following the search, Detective Glidewell sent the suspected marijuana and Oxycontin evidence to Detective Davila for testing and inventory. The former tested positive for THC. Detective Davila did not have the equipment necessary to test pills, but she identified both samples as Oxycontin based on her comparison of the pills to the Physician's Desk Reference, which contains pictures and descriptions of different drugs.

¶ 14. The pills were then sent to the state crime laboratory for testing. The forensic scientist compared the twenty green pills from the closet to the Physician's Desk Reference. Based on the coatings, coloring, shape, and characteristic markings on the pills, she identified them as Oxycodone of the Oxycontin brand name. She also crushed one of the pills and subjected it to two scientific tests. Both tests confirmed her visual identification. The forensic scientist also examined the pills from the bottle recovered from the garbage can. She compared the green pills to the other twenty green pills and concluded they were the same. She did not, however, conduct scientific tests on the pills from the garbage can.

¶ 15. On January 11, 2002, the State charged Stank with possession with intent to deliver more than 500 but not more than 2500 grams of the controlled substance tetrahydrocannabinols (marijuana), contrary to Wis. Stat. §§ 961.41(lm)(h)2., 961.01(14), and 961.14(4)(t) (2001-02). The criminal complaint also charged Stank with possession with the intent to deliver the controlled substance Oxycodone, a schedule II narcotic, a violation of Wis. Stat. §§ 961.16(2)(a)ll. and 961.41(lm)(a). The State filed an information on January 22 with the same charges.

¶ 16. On March 18, Stank moved to suppress the fruits of the search on the basis that the information on which the warrant was predicated was stale and unreliable. The parties appeared at a motion hearing on May 28. Stank requested an adjournment, however, because he had not been able to procure Oehler as a witness, and Stank believed Oehler's testimony was essential to support his claim that the warrant-issuing judge was not fully and accurately apprised of the relevant facts and the relationship between Stank and Oehler. The court denied the motion on June 7 and scheduled a trial date.

¶ 17. Prior to trial, the parties attempted to negotiate an acceptable plea agreement. Stank, however, did not accept the plea offer. As a result, the State amended its original information to include two new counts. Count three charged Stank with failure to pay the controlled substance tax on his marijuana, in violation of Wis. Stat. §§ 139.87(2), 139.88(1), 139.89, 139.95(2), 961.01(14), and 961.14(4)(t). Count four was for keeping a drug house (manufacturing, keeping or delivering controlled substances) while armed, contrary to Wis. Stat. §§ 961.42(1) and 939.63. The amended information also added "while armed" enhancers to counts one and two.

¶ 18. Voir dire commenced on October 9. During the prosecutor's questioning of the prospective jurors, he asked:

Along with controlled substances generating strong feelings in some people, guns also generate strong feelings in all sorts of people. There [is] literally going to be a shopping cart full of guns in this case. 18 different handguns, rifles and shotguns were seized at the defendant's home. Does anybody have such a strong view of guns that they won't be able to be fair in this case?

No jurors raised their hands. Although one juror asked whether the guns were legal and expressed the view that anyone with a gun should have to have a permit, the court ultimately dismissed this juror for cause. The prosecutor also brought up the subject of the books the police uncovered:

You may hear testimony about some of the books that were recovered from the defendant's house. They include how to make... disposable silencers, The Anarchist's Black Book of Improved Munitions, The Improvised Munitions Handbook. Things like that.
Anybody can have whatever books they want, of course. I'm just trying to find out whether or not somebody having those kinds of books or hearing about titles like that is going to cause a visceral reaction in anybody, prevent somebody from being fair.

One juror gave an affirmative answer. This juror also was dismissed for cause and was not part of the empanelled jury.

¶ 19. The trial began later that day. The State presented the testimony of Oehler first. His testimony was similar to what he said at the warrant application hearing with a few variances. He stated that he had been to Stank's residence over one hundred times and spent roughly $70 on his weekly purchases. He also testified that he knew the identity of the anonymous informant. He claimed his cousin had made that phone call to get even with Stank for flirting with his wife at a party.

¶ 20. The State also called seven police witnesses involved with either the search, the handling or analysis of the seized evidence, or both, and the forensic scientist who analyzed the drug evidence. Detectives Glidewell and Davila testified to their visual identification of the Oxycontin, and Detective Davila also discussed the results of her chemical analysis of the marijuana. The forensic scientist from the state crime laboratory testified about her examination of the drug evidence as well. With respect to the twenty green pills in Exhibit 47, she stated to a reasonable degree of scientific certainty that the pills were Oxycontin. She further stated that the assortment of pills in Exhibit 46 — which Detective Glidewell recovered from the garbage can — were consistent in appearance with the Oxycontin pills in the Physician's Desk Reference. This witness confirmed that the green pills looked identical to those in Exhibit 47.

¶ 21. The State also presented testimony about the amount of drugs and the drugs' street value. The amount of marijuana totaled approximately three pounds or over one thousand grams. According to Detective Glidewell's testimony, a gram of marijuana could sell on the street for anywhere between $5 and $15 dollars. At the time of the search, the amount found in Stank's house would probably have sold for at least $6000 if sold by the gram. If sold wholesale by the pound, it would sell for roughly $2100. Detective Glidewell asserted that in his experience, people who buy marijuana for personal use usually buy by the gram or by the ounce, while dealers usually buy by the pound.

¶ 22. The jury also heard testimony about the value of the fifty-seven Oxycontin pills. According to Detective Glidewell, a white ten-milligram pill sells for $15 to $20, and a yellow forty-milligram pill sells for $20 to $30. The green eighty-milligram tablets can sell for as much as $40 per pill. Detective Glidewell also stated that, based on his experience, users of Oxycontin usually possess only one or two pills at a time.

¶ 23. During the State's case, the court admitted several exhibits, including the drug evidence and various drug paraphernalia, such as the marijuana pipes, the scale, and the grow lights. It also admitted many of the firearms, the bulletproof vest, the flash suppressor, and the various munitions-related publications.

¶ 24. At the close of the State's case, the defense moved to dismiss each of the four counts for lack of sufficient evidence. Defense counsel also opposed the admission of Exhibit 46 because the forensic scientist could not state to a reasonable degree of scientific certainty that the pills in that exhibit contained Oxycontin. The court ruled in favor of the State.

¶ 25. The defense called Detectives Heck and Glidewell as defense witnesses. Both testified about their conversations with Oehler. Heck also confirmed that he had investigated Stank's burglary complaint and his arrest of Oehler for the unlawful telephone use. Stank also called a friend as well as his neighbor. The friend testified that he and Stank often hunted together and that he had seen some of Stank's hunting guns. He also asserted that he knew Stank to collect guns. The witness denied ever seeing drugs in Stank's house in the seven to ten years that he knew him. The neighbor testified last. He stated that in the fall of 2001, he heard the burglar alarm go off at Stank's house and thought he recognized the silhouette and vehicle of a person he now knows to be Oehler. Essentially the defense theory of the case was that Oehler may have planted the drug evidence in order to get even with Stank and that there was an innocent explanation for the presence of the guns, namely that Stank was an avid hunter who collected guns.

¶ 26. At the close of all the evidence, the defense renewed its motion to dismiss each of the four counts. The court again denied the motion, and the jury returned a verdict of guilty on all four counts. The court entered judgment on counts one, three, and four. After some reflection, the court also entered judgment on count two, the possession with intent to deliver Oxycontin charge.

¶ 27. Stank sought postconviction relief on March 22, 2004. He renewed his objection that the physical evidence should have been suppressed and his contention that the evidence adduced at trial was insufficient to support count two of the amended information. He also stated that the court erred by admitting the guns and publications because they constituted improper character evidence. The court denied relief, and Stank appeals.

¶ 28. We first address Stank's contention that the fruits of the search should have been suppressed because the search warrant was defective. We give great deference to a court's determination of probable cause to issue a warrant, and the defendant bears the burden of challenging probable cause. State v. Multaler, 2002 WI 35, ¶ 7, 252 Wis. 2d 54, 643 N.W.2d 437. The court may draw reasonable inferences from the evidence presented and must make a practical, commonsense determination whether, based on that evidence and under all the circumstances, a fair probability exists that contraband or evidence of a crime will be found at the place to be searched. Id., ¶ 8.

¶ 29. Stank claims two grounds for defectiveness here. First, he argues that the court should not have found probable cause existed because Oehler's testimony was inherently unreliable. When he argued that ground before the trial court, he pointed to the falling out between the parties, the fact that law enforcement had promised not to pursue the unlawful use of the telephone charges against Oehler, Oehler's criminal record, and the fact that the police had reimbursed Oehler for transportation expenses so he could be present at the warrant application hearing. On appeal, he also points to perceived inconsistencies between Oehler's testimony at the hearing and his trial testimony — specifically, he points to the number of times Oehler had been to Stank's apartment, the amount of his weekly purchases, and Oehler's statement at trial identifying his cousin as the anonymous tipster — to bolster his position that had the trial court allowed him to have an evidentiary hearing, he could have cast doubt on Oehler's credibility and veracity prior to the trial.

¶ 30. We hold that Stank was not entitled to such a hearing. In Morales v. State, 44 Wis. 2d 96, 102-03, 170 N.W.2d 684 (1969), our supreme court held that a defendant could not challenge the credibility of the witness upon whose testimony the court relied in issuing the search warrant. There, the defendant pointed to his wife's testimony at trial that she had a romantic relationship with the witness prior to her marriage to the defendant. Id. at 102. The court deemed this fact irrelevant and held that where the witness testified to facts within his personal knowledge, the court could justifiably accept it as trustworthy. Id. at 102-03. In other words, it was for the warrant-issuing court to evaluate the credibility of the witness, and any challenge to the court's finding was limited to the record established before the court at the time it issued the warrant. See also Rainey v. State, 74 Wis. 2d 189, 199-200, 246 N.W.2d 529 (1976) (magistrate entitled to find a witness credible because he had the ability to observe the demeanor of witness and hear his testimony, even if the witness was a paid informant).

¶ 31. Like the defendant in Morales, Stank relies primarily on testimony adduced at the trial and evidence that the witness testifying in support of the search warrant had a personal vendetta against him and other incentives to lie on behalf of law enforcement. We note that in this case, the warrant-issuing court did hear about Oehler's motives to fabricate testimony and nonetheless found him to be truthful. Moreover, the mere desire for cross-examination does not justify an evidentiary hearing, Franks v. Delaware, 438 U.S. 154, 171 (1978), so the possibility that Stank could have elicited inconsistent testimony at an evidentiary hearing is irrelevant.

¶ 32. We note that Franks does entitle a defendant to an evidentiary hearing when he or she can make a preliminary showing that a witness deliberately lied or testified with disregard for the truth of his or her statements. See also State v. Mann, 123 Wis. 2d 375, 385-89, 367 N.W.2d 209 (1985) (extending Franks to material omissions of fact that are the equivalent of deliberate falsehoods or reckless disregard for the truth). Here, however, that case is inapposite. Defense counsel expressly agreed with the trial court's observation that he was not pursuing a Franks-Mann motion but rather merely sought to impeach Oehler's credibility.

¶ 33. Stank's second objection to the warrant is that Oehler's information was "stale" because Oehler had not been to Stank's residence for almost two months by the time he testified in support of the warrant. We disagree. Again, Multaler teaches that the passage of time does not alone render probable cause stale and that in certain circumstances, old information may still support an inference that probable cause exists at the time the State applies for a warrant. Multaler, 252 Wis. 2d 54, ¶ 36. The warrant-issuing court may look to several factors in determining whether probable cause remains in the face of old information, including: the nature of the underlying circumstances, whether the activity is of a protracted or continuous nature, the nature of the criminal activity under investigation, and the nature of the evidence sought. Id., ¶ 37. Moreover, the court may consider the experience and special knowledge of the police officers applying for a warrant among other relevant factors. Id., ¶ 43.

¶ 34. The court here had ample basis to conclude that probable cause existed. It heard Oehler's testimony that he bought $50 worth .of marijuana from Stank on a weekly basis, that he had been to Stank's residence over 500 times, that every time Oehler was at the residence, he would see the same group of other individuals there to buy drugs, and that Stank had showed him a firearm he owned. He also testified that Stank had been his supplier for several years and that Stank stored his drugs in two freezers in the house. This evidence supported the conclusion that Stank had a longstanding, ongoing, and large-scale drug-trafficking business. The court was also entitled to rely on Detective Glidewell's testimony that in his experience, such operations did not just suddenly cease. Moreover, the nature of the evidence sought — drugs and drug paraphernalia, cash and ledgers, and weapons that a dealer might use to protect his drugs — were directly related to that continuous and ongoing activity. In light of these factors, the roughly two-month passage of time did not significantly diminish the probability that the officers would uncover evidence of drug dealing.

¶ 35. We next consider Stank's argument that the trial court plainly erred in admitting the weapons and the munitions-related publications. See Wis. Stat. § 901.03(4) (2003-04) (court may consider plain errors affecting substantial rights even where not brought to the attention of the trial court). A "plain error" means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶ 25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App. 2001). Relying on State v. Spraggin, 77 Wis. 2d 89, 252 N.W.2d 94 (1977), Stank claims admitting this evidence deprived him of his constitutional right to a fair trial, insisting that the State admitted the weapons and publications in order to sully his character. In Spraggin, the court held that evidence of the defendant's possession of guns and stolen goods was improperly admitted in her trial for intentionally aiding and abetting in the delivery of heroin. Id. at 92, 96-102. Stank quotes the following passage from Spraggin:

Weapons and stolen goods may constitute the protection and currency necessary in the realm of heroin trafficking, but the State did not demonstrate in any manner that this particular evidence was so employed. The inference of such use must be supported by more than the mere introduction of these exhibits into evidence and the broad assertion that guns and stolen goods are commonly used by those in the heroin trade.

Id. at 100.

¶ 36. We disagree that Spraggin is on point. In State v. Wedgeworth, 100 Wis. 2d 514, 530-31, 302 N.W.2d 810 (1981), the supreme court expressly limited Spraggin to cases involving improper character evidence. See id. (stating Spraggin should not be extended to cover circumstances beyond Wis. Stat. § 904.04(2)). In Wedgeworth, the State's admission of such evidence was directly relevant not to an "other act" but to an element of the crime with which Wedgeworth was charged, possession with intent to deliver. The offenses charged in that case were possession of marijuana and possession with intent to deliver heroin. Wedgeworth, 100 Wis. 2d at 516, 533. A police witness identified at trial three weapons seized from the defendant's home. Id. at 527. He further testified that on previous occasions he had encountered guns and gunfire when executing search warrants in narcotics cases. Id. The court held the evidence was properly admitted as "indicative of the role of self-help and self-protection in the business of drug trafficking." Id. at 533. This inference differed from the inference invited by the evidence in Spraggin that because heroin dealers often engaged in self-help, the defendant's possession of guns made it more likely that she was engaged in drug schemes and therefore was guilty of aiding and abetting heroin dealing. See Spraggin, 77 Wis. 2d at 99.

¶ 37. Stank's case more closely resembles Wedge-worth. Contrary to Stank's assertions, the weapons and publication evidence went directly to the "while armed" element of the offense and were relevant for purposes other than demonizing Stank's character. Indeed, they were highly probative wholly independent of any negative character inference. The presence of the guns, when juxtaposed with the publications, the flash suppresses and the bulletproof vest struck at the core of the defense theory of the case. The jury heard evidence that hunters do not use flash suppressors and bulletproof vests. Moreover, it heard evidence that the Mac-11 to which the flash suppressor attached was not a hunting gun. This evidence suggested Stank intended to use the guns not, as he claimed, for innocent purposes like hunting but for violent purposes, an inference bolstered by the introduction of the publications.

¶ 38. The location of the guns further magnified the evidentiary value of this evidence. Detective Glidewell found the pistol, for example, in a garbage can containing not trash but a bottle of Oxycontin pills and bags of marijuana. Stank's deliberate placement of the pistol next to the drugs strongly suggests he placed it there to guard them. Similarly, the bulletproof vest, the Mac-11 handgun, and two other weapons were found in the same closet as two marijuana pipes, the other stash of Oxycontin, and the yellow envelope containing $700 in cash.

¶ 39. Given the potent nature of the weapons and publication evidence wholly apart from any impermissible character inferences, we cannot say that the trial court clearly erred in allowing this evidence. Moreover, the possibility that the jury would use this evidence for an impermissible purpose was strongly diminished. At voir dire, the State warned the prospective jurors that it intended to introduce such evidence and indicated that they should not decide the case based on visceral reactions to such items. Indeed, the two jurors who expressed strong feelings with respect to these items were dismissed for cause. Again, to the extent the court erred, any error is far from obvious.

¶ 40. Finally, we reach Stank's objection to the sufficiency of the evidence with respect to count two, possession with intent to deliver Oxycontin, while armed. First, he protests that the State only had one of the two stashes of suspected Oxycontin tested and therefore could not even prove that all of the drugs were in fact Oxycontin. According to Stank, the forensic scientist's comparison of the pills to the desk reference did not suffice to identify the pills as Oxycontin because she "would not express an opinion to a reasonable degree of scientific certainty that the pills in Exhibit 46 contained oxycodone."

¶ 41. We reject Stank's argument based on State v. Dye, 215 Wis. 2d 281, 572 N.W.2d 524 (Ct. App. 1997). The defendant in that case objected that the State had failed to meet its burden of proving the amount of cocaine in his possession. Id. at 288-89. The chemist had conducted presumptive color tests on all fifteen samples of suspected cocaine and concluded that one contained cocaine powder and the others cocaine base. Id. at 285. He performed confirmatory tests on the cocaine base sample and on one of the fourteen samples of cocaine powder, both of which tested positive for cocaine. Id. at 285-86. At trial the chemist testified that the presumptive test he used was ninety-nine percent accurate and that his practice of randomly testing a representative sample was widely employed. Id. at 290-91. We held that the State had put forth sufficient evidence to support the conviction based on the combination of the presumptive test, the confirmatory follow-up tests, and other circumstantial evidence obtained during the search. Id. at 292.

¶ 42. Here, the forensic scientist conducted both a presumptive identification and a confirmatory test on a random sample of the suspected Oxycontin. Identification of a pill using the Physician's Desk Reference qualifies as a presumptive test. Wisconsin Stat. § 907.02 and State v. Hollingsworth, 160 Wis. 2d 883, 895-96, 467 N.W.2d 555 (Ct. App. 1991), recognize that any specialized knowledge beyond the ken of the average person, including knowledge gained from experience alone, can form the predicate of an expert opinion. Thus, the knowledge need not be "scientific," see Holl-ingsworth, 160 Wis. 2d at 896 (no special technical or academic training necessary), and "scientific certainty" is not necessary. The fact that the witness here was a forensic scientist therefore did not preclude her from forming an expert opinion about the accuracy of the desk reference based on experience. This witness testified that in her eleven years of experience, she had never found her pharmaceutical identification of a tablet inconsistent with the results of scientific tests. Detective Davila gave similar testimony based on her experience on the vice control squad, stating that she had never seen a case in which the pill she identified in the desk reference turned out to be a counterfeit of that drug.

¶ 43. Moreover, we note that other courts have recognized the Physician's Desk Reference as a source commonly relied upon by members of the medical profession and pharmaceutical industry. A New York court characterized the desk reference as a "compendium often relied upon by physicians to obtain knowledge of the proper uses and hazards of drugs," see Tenuto v. Lederle Labs., Div. Of Am. Cyanamid Co., 695 N.Y.S.2d 259, 266 (Sup. Ct. 1999) (citation omitted), and among the "well-known methods by which pharmaceutical manufacturers apprise the medical profession of the dangers of a drug." Id. (citation omitted). Even more significantly, at least one federal court has relied on the desk reference for its pictorial representations of different drugs. In American Home Products Corp. v. Chelsea Laboratories, Inc., 572 F. Supp. 278, 278-81 (D.N.J. 1982), aff'd, 722 F.2d 730 (3d Cir. 1983), 722 F.2d 731 (3d Cir. 1983), and 722 F.2d 736 (3d Cir. 1983), the plaintiff, a drug manufacturer, sued another drug company for marketing pills using the same trade dress. The court compared features comprising a drug's trade dress, e.g., color, shape, size, and finish, with features on a human face, observing that enough combinations of features existed for each drug to have a different trade dress. Id. at 281. It pointed to the desk reference as evidence that drug manufacturers customarily design unique trade dresses for each product. Id. Significantly, the forensic expert and Detective Davila cited various aspects of trade dress, including color, shape, size, absence of scoring, and finish, as the features they identified from the desk reference.

¶ 44. In addition to the presumptive pharmaceutical evaluation by Detective Davila and the forensic scientist, the jury in this case, just as the fact finder in Dye, had a confirmatory follow-up test and other circumstantial evidence of content that it could consider. The forensic scientist performed two confirmatory scientific tests on one of the green pills in Exhibit 47. This pill was identical in appearance to all of the other pills in Exhibit 47 and to six of the pills in Exhibit 46. Thus, it was a representative sample of some pills in both exhibits. Although the yellow and white pills were not tested, other circumstantial evidence of their content corroborates the presumptive identification. First, they were placed in the same container as green pills identified as Oxycontin through the representative sampling. Second, they were found next to other suspected drugs that subsequently tested positive as marijuana. All of these factors together constitute sufficient evidence that the pills contained Oxycontin.

¶ 45. We further reject Stank's argument that insufficient evidence existed to support the "intent to deliver" element of count two. According to Peasley v. State, 83 Wis. 2d 224, 229, 231-32, 265 N.W.2d 506 (1978), the finder of fact may consider many factors indicative of intent to deliver, including the amount of the controlled substance, its dollar value, and the presence of other drugs and drug paraphernalia. Numerous of these factors supported the verdict in this case. First, Detective Glidewell's unimpeached testimony was that typically a user of Oxycontin purchases one or two pills at a time. Stank had ten times that amount in his closet and an even greater quantity in the trash can. Moreover, the street values are consistent with drug trafficking. The pills in Exhibit 47 had a potential sale value of $800. The detective gave a range of values for the ten- and forty-milligram tablets. Assuming Stank sold at the low end of this range, the sale value for all of the pills in Exhibit 46 totals $850. At the high end, the amount comes closer to $1150. The value of his entire stash of pills then is somewhere between $1650 and $1950. We also note the yellow envelope with $700 in cash which lay in close proximity to the pills in Exhibit 47.

¶ 46. The jury was also entitled to look at the presence of the approximately three pounds of marijuana, an amount far more consistent with the large-scale dealing of drugs than with personal use. Further, depending on whether it sold by the pound or by the gram, the marijuana supplies could sell at minimum for anywhere between $2100 and $6000. The presence of drug paraphernalia, Oehler's testimony that he frequently saw other people buying marijuana from Stank, and weapons available to protect the supplies also support an inference that Stank engaged in drug trafficking and therefore intended to sell the Oxycontin.

¶ 47. We affirm on all grounds. Stank was not entitled to an evidentiary hearing to attack Oehler's credibility, and Oehler's absence from Stank's residence was insignificant in terms of probable cause given the longstanding and large-scale nature of Stank's drug activity. The court also did not plainly err at trial because the reading material, firearms, and other weapons-related accessories had highly probative value wholly unrelated to vilifying Stank's character. Finally, the evidence supports the Oxycontin charge. Detective Davila and the forensic scientist properly used the Physician's Desk Reference to presumptively determine the identity of the suspected Oxycontin. The result of this presumptive test, as in Dye, was supported both by a confirmatory test and other circumstantial evidence. Finally, the record contains plenty of circumstantial evidence that Stank intended to deliver the Oxycontin.

By the Court. — Judgments and order affirmed.

       The record is clear that Oehler had purchased marijuana from Stank intermittently before 2001 but contains inconsistent information on when those occasional purchases started.

       Please refer to language effective prior to February 1, 2003. All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.


source: Caselaw Access Project

author: DYKMAN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Barbara E. Harp, Defendant-Petitioner.
    Court of Appeals

      No. 2004AP3240-CR.

      Submitted on briefs June 23, 2005.

      —Decided October 27, 2005.

    2005 WI App 250
    (Also reported in 707 N.W.2d 304.)

      On behalf of the defendant-petitioner, the cause was submitted on the briefs of Aaron N. Halstead, Kathleen M. Lounsbury, and Danielle L. Carne, of Shneidman, Hawks & Ehlke, S.C., Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Michael C. Sanders, assistant attorney general.
    Before Dykman, Vergeront and Higginbotham, JJ.
   DYKMAN, J.

¶ 1. Barbara Harp appeals from a nonfinal order of the circuit court declaring a mistrial in a felony case involving two counts of intentionally abusing a patient at a health care facility under Wis. Stat. § 940.295(3)(a)l. and (b)2. (2003-04), and denying a motion to dismiss the charges on double jeopardy grounds. The circuit court granted the State's motion for a mistrial after determining that Harp's counsel had elicited alibi testimony from a witness without giving the State the required notice of that witness under Wis. Stat. § 971.23(8)(a). We grant Harp's petition to review the circuit court's interlocutory order.

¶ 2. Harp contends that her counsel was not required to give notice of the witness because the witness's testimony was not alibi testimony, and therefore the circuit court erred by ordering a mistrial. Because we conclude that the testimony of the witness was not alibi testimony, notice was not required and the circuit court therefore failed to properly exercise its discretion in ordering a mistrial. State v. Seefeldt, 2003 WI 47, ¶ 28, 261 Wis. 2d 383, 661 N.W.2d 822. Accordingly, we reverse.

Background

¶ 3. Barbara Harp, then a certified nursing assistant (CNA) at the Columbia County Healthcare Facility (Columbia), was charged with two counts of intentionally abusing a patient under circumstances that cause bodily harm. The criminal complaint was filed after another CNA at Columbia, Stephanie Kleist, reported that on July 20, 2003, while working with Harp, she heard Harp slap Jody Parker, a resident, and then saw Harp wiping blood off Parker's face. The complaint was later amended to include a second incident, which allegedly occurred on May 16, 2003.

¶ 4. The case against Harp went to trial on September 23, 2004. The prosecution called Kleist, who testified that on May 16, 2003, Harp worked as her partner in her end of the hallway of patients' rooms, known as Birch Boulevard. She testified that Parker was in the section for which Harp was responsible, but that she often assisted Harp in caring for Parker. She averred that on the May 16 incident, she saw Harp hit Parker in the forehead four or five times.

¶ 5. After the prosecution rested, Harp's counsel called Leah Stahl, another CNA employed at Columbia. She testified that in March 2003, Birch Boulevard, which had previously included a mixture of patients with various needs, was split into two sections, one end of the hallway housing patients with dementia, and the other end remaining mixed. Stahl then gave the following testimony:

Q: ... [W]hat area of the unit is Mr. Parker in?
A: He is on the other end, with the mixed residents.
Q: Now, were you a caregiver to Mr. Parker in May of 2003?
A: I was on the dementia end.
Q: And did you have occasion to work with or care for Mr. Parker during this time period, May of 2003?
A: A few times, if we were needed to go down and help the other end a little bit.
Q: Now ... the CNA's are paired as partners?
A: Yes.
Q: And at any time, were you Barb Harp's partner?
A: Yes.
Q: Until when?
A: It was after the Memorial holiday.
Q: Okay. You were her partner after Memorial holiday or before?
A: No, prior to that.
Q: And when you say the Memorial holiday, are you meaning of 2003?
A: Yes.
Q: So, you were Ms. Harp's partner before Memorial holiday 2003. And what did that mean in the sense of being her partner?
A: We were paired up on the dementia end.
Q: And during that period of time, was Mr. Parker one of the residents that would have been a person for whom you and Ms. Harp cared as partners?
A: No.
Q: He was not on the dementia end? . . .[A]t some point in time did the two of you split, like you were no longer partners?
A: Just when the change after the holiday weekend.
Q: Who did Ms. Harp's partner become [at that point]?
A: Stephanie.

At the request of Harp's counsel, the court took judicial notice that Memorial Day 2003 fell on May 26.

¶ 6. Later, the prosecutor cross-examined Stahl:
Q: How can you be certain of that date?
A: Because we were going to have a switch after the Memorial weekend.
Q: . . .[H]ad Barbara Harp been in charge of caring for Jody Parker at any time prior to Memorial weekend?
A: She might have done care on him at one time. I don't know what time or date or—
Q: Do you recall working with Barbara Harp on May 16th, of 2003?
A: Yes. We were partners.
Q: And you were partners on the dementia unit?
A: Yes.
Q: So, not the end that Jody Parker would be on?
A: Yes.
Q: How do you recall [the exact] date?
A: I don't recall [the exact] date. I just know that we were partners. We were full-timers, and we worked together when we were scheduled.
Q: Do you know that you were scheduled to work on May 16th of 2003?
A: Yes.
Q: How do you know that?
A: Because I worked all the time.
Q: Every day of the week?
A: I picked up lots of days.
Q: So, you're certain you were working on May 16th of 2003?
A: Yes.
Q: Do you know what day of the week May 16th of 2003 was?
A: No.
Q: But you're certain you were working that day?
A: Pretty sure.
Q: Pretty sure or positive?
A: Pretty sure.
Q: And if you weren't working, would it be possible that Barbara Harp would be working on the other end, the non-dementia patients on Birch?
A: No.

¶ 7. At the conclusion of Stahl's testimony, the prosecutor moved for a mistrial, arguing that Stahl had just provided alibi testimony, and that the State had not received the required notice of an alibi witness. The court declined to order a mistrial, subject to reconsideration, noting that "the testimony that came in as to her actually working on the 16th did come in through cross examination. Defense counsel never asked specifically whether she was working on that day." Later, the court explained that the potential alibi testimony regarding Stahl's recollection of working with Harp on that day "didn't come through the testimony of the witness on direct examination, only through cross." The court concluded that it wanted "to hear what some other witnesses have to say and where it goes."

¶ 8. The defense rested with Harp's counsel stating that "in order not to ... run afoul of any claim that we're attempting to present alibi witnesses, I'm not goingto call further witnesses." The court then recessed the proceedings to see if Columbia had records showing which CNA's were paired together on May 16, 2003. No such records were found. The court declared a mistrial.

¶ 9. On October 4, 2004, Harp filed a motion to dismiss the charges filed against her based on the double jeopardy clauses of the federal and state constitutions and Wis. Stat. § 972.07. The court denied Harp's motion. She now appeals the trial court's mistrial order and its order denying her motion to dismiss the complaint.

Standard of Review

¶ 10. Generally, the level of deference we afford a circuit court's decision to grant a mistrial depends upon the circumstances of the case. Seefeldt, 261 Wis. 2d 383, ¶¶ 25-28. In Arizona v. Washington, 434 U.S. 497, 507-10 (1978), the U.S. Supreme Court described "two ends of the spectrum of deference." Seefeldt, 261 Wis. 2d 383, ¶ 25. At one end are cases in which there is reason to believe that the prosecutor has sought a mistrial to gain a tactical advantage or to harass the defendant. Washington, 434 U.S. at 507-08. On the other is the mistrial based on the judge's belief that the jury is unable to reach a verdict. Id. at 509. A mistrial premised on the latter circumstance is "accorded great deference by a reviewing court," id. at 510, whereas a mistrial resulting from the former is subject to the "strictest scrutiny." Id. at 508. In any case, a court reviewing a circuit court's order of a mistrial must, at a minimum, "satisfy itself that the trial judge exercised 'sound discretion' in declaring a mistrial." Seefeldt, 261 Wis. 2d 383, ¶ 28.

¶ 11. The State contends that the circumstances of this case are analogous to those in State v. Williams, 2004 WI App 56, ¶ 28, 270 Wis. 2d 761, 677 N.W.2d 691. There, we applied deferential review to a trial court's mistrial order after Williams' counsel asked what the court believed to be an improper question of a witness. Id. They argue that as in Williams, the trial court's mistrial order was necessitated by improper questioning by defense counsel (eliciting alibi testimony without giving the state prior notice) and therefore our review should be highly deferential. Harp counters that this case is unlike Williams because the questioning of Harp's counsel was not improper. Stahl was not an alibi witness and hence notice of her appearance was not required, or, alternatively, Stahl provided alibi testimony only upon the prosecutor's cross-examination, contentions we address later. As a result, Harp asserts, we must apply strict scrutiny to the trial court's order of a mistrial.

¶ 12. We need not address the parties' dispute about the level of deference demanded by the particular circumstances because no matter the standard of review, our result would be the same. Our analysis below concludes that the circuit court's mistrial order was based on an error of law, and thus the court's order was not an exercise of "sound discretion." Seefeldt, 261 Wis. 2d 383, ¶ 28.

Analysis

¶ 13. The Fifth Amendment to the U. S. Constitution and article I, section 8 of the Wisconsin Constitution prevent the State from trying a defendant multiple times for the same offense. "[GJiven the importance of the constitutional protection against double jeopardy, the State bears the burden of demonstrating a 'manifest necessity1 for any mistrial ordered over the objection of the defendant." Seefeldt, 261 Wis. 2d 383, ¶ 19 (citations omitted). "Manifest necessity" means a "high degree" of necessity. Id.

¶ 14. The trial court based its mistrial order on the conclusion that defense counsel called an alibi witness without giving proper notice. The statute requiring notice of an alibi witness states in relevant part:

Notice of alibi, (a) If the defendant intends to rely upon an alibi as a defense, the defendant shall give notice to the district attorney at the arraignment or at least 15 days before trial stating particularly the place where the defendant claims to have been when the crime is alleged to have been committed together with the names and addresses of -witnesses to the alibi, if known.

Wis. Stat. § 971.23(8). Harp contends that Stahl was not an alibi witness subject to the notification requirement of § 971.23(8)(a), an assertion that raises a question of statutory interpretation that we review de novo. State v. Brown, 2003 WI App 34, ¶ 12, 260 Wis. 2d 125, 659 N.W.2d 110. If the trial court's determination that Stahl was an alibi witness was based on a mistaken view of § 971.23(8)(a), we must conclude that there was not a manifest necessity for a mistrial in this case, and the court therefore failed to exercise sound discretion in ordering a mistrial.

¶ 15. The statute does not define "alibi." The state supreme court offered the following definition of the term in State v. Shaw, 58 Wis. 2d 25, 30, 205 N.W.2d 132 (1973), overruled on other grounds, State v. Poellinger, 153 Wis. 2d 493, 505, 451 N.W.2d 752 (1990): "The word, 'alibi,' is merely a short-hand method of describing a defense based on the fact that the accused was elsewhere at the time the alleged incident took place. The word, 'alibi,' is simply the Latin word for 'elsewhere.' "

¶ 16. In Shaw, a defendant charged with burglary requested a jury instruction on alibi based on his testimony that he was near but not at the scene of the crime at the time. Shaw, 58 Wis. 2d at 28. The trial court refused the request because it did not believe that Shaw had given alibi testimony. The supreme court affirmed, concluding that "in light of the definition of alibi, it does not appear this testimony amounted to such a defense." Id. at 30. The Shaw court discussed the meaning of "alibi" at length:

One authority has described the purpose of alibi: "Its only design is to prove that the defendant, being at another place at the time, could not have committed the offense charged." 1 Wharton, Criminal Law & Procedure, p. 260, sec. 121 (12th ed. 1957). Other courts have held that an alibi is a defense that at the time of the crime the defendant was so distant from the scene that his participation in the crime was impossible. See Williams v. State (1905), 123 Ga. 138, 51 S.E. 322; People v. Lukoszus (1909), 242 Ill. 101, 89 N.E. 749; Leeth v. State (1951), 94 Okl.Cr. 61, 230 P.2d 942; State v. Ovitt (1967), 126 Vt. 320, 229 A.2d 237. See also 21 Am. JuR 2d, Criminal Law, p. 205, sec. 136. The Wisconsin cases in which this defense has been interposed have generally involved an alibi where the defendant was in another city or another part of the same city at the time of the offense. See Berg v. State (1969), 41 Wis. 2d 729, 165 N.W.2d 189; State v. Richardson (1969), 44 Wis. 2d 75, 170 N.W.2d 775; State v. Stockman (1970), 46 Wis. 2d 243, 174 N.W.2d 249. However, in State v. Grahn (1963), 21 Wis. 2d 49,123 N.W.2d 510, the defendant claimed that at the time of the offense he was at home, his home being not far from the scene of the crime.
Of necessity, the defense of alibi involves presence of the defendant at a place other than the scene of the crime, at the time the crime was committed. "If the defendant raises an alibi, he is in effect denying the claim of the prosecution that he was at the scene of the crime at the time it was committed." 1 Wharton, Criminal Evidence, pp. 36-37, sec. 23 (13th ed. 1972). As stated in 21 Am. JuR 2d, Criminal Law, p. 206, sec. 136: "(S)ince an alibi derives its potency as a defense from the fact that it involves the physical impossibility of the accused's guilt, a purported alibi which leaves it possible for the accused to be the guilty person is no alibi at all." Here, the exact time of the burglary is unknown but it happened after 9:30 p.m. on June 29th and during the probable time the crime was committed, Shaw was in the immediate vicinity of the scene of the crime. No alibi was thus presented.

¶ 17. Harp contends that Stahl's testimony was not of the nature of an alibi because it did not include testimony about Harp's location on May 16. Harp notes that on direct examination Stahl did not address her knowledge of Harp's whereabouts on May 16. Rather, she testified generally that she was Harp's partner until at least Memorial Day, and that the two worked on the end of the hallway that did not include Parker. Harp notes that the State did not raise the issue of alibi during her direct examination of Stahl, instead choosing to cross-examine her, focusing on her recollections of May 16. Harp asserts that if Stahl provided alibi testimony, it was elicited by the State, not her.

¶ 18. Citing Shaw, Harp further contends that Stahl's testimony did not provide Harp with an alibi because it did not tend to show that it was "physically impossible" for Harp to have been in Parker's room on May 16, or that Harp was at a specific, different location on that date. Shaw, 58 Wis. 2d at 31. Rather, Stahl's testimony put Harp "in the immediate vicinity of the scene of the crime," on the other end of the hallway, and thus could not be an alibi under Wisconsin law. Id.

¶ 19. The State counters that Shaw is distinguishable on grounds that it involved the question of whether the defendant had established an alibi such that he was entitled to a jury instruction on alibi, not whether the defendant failed to provide notice of an alibi witness. It then asserts that alibi testimony need not show a physical impossibility for the defendant to have committed the crime but is any testimony that casts doubt on the State's evidence by showing that the defendant did not commit the crime because he or she was elsewhere, citing 27 Am. Jur Proof of Facts 2d Alibi Defense § 1 (1981) ("Evidence can be admissible as alibi evidence even if it does not show that that defendant was elsewhere at the time of the crime.").

¶ 20. The State contends that this view of alibi testimony is expressed in Jensen v. State, 36 Wis. 2d 598, 153 N.W.2d 566 (1967). There, the defendant, who allegedly sexually assaulted his daughter, testified that he was not at home that night but was out at the bars with his girlfriend and did not return until the following morning. Id. at 603. In rebuttal, the State presented evidence that his girlfriend had worked that night. Id. Jensen then sought to call the girlfriend to testify that she had traded shifts with a co-worker. Id. The supreme court determined that evidence that the defendant's girlfriend had traded shifts at work was alibi evidence in the defendant's case and affirmed the trial court's refusal to permit her testimony because Jensen had not provided notice of an alibi witness. Id. at 607a. The State notes that Jensen's offer of proof, like Stahl's testimony, did not offer specific testimony as to the location of the defendant, only general information that supported the inference that the defendant was at a different location at the time.

¶ 21. We agree with Harp that Stahl did not give alibi testimony under Wisconsin law. Stahl's testimony on direct examination included nothing about Stahl's recollections about Harp's location on May 16. Stahl testified only that she had been paired with Harp until Memorial Day of that month; that they worked together on the dementia end of the hallway; and that Parker was in the mixed end of the hallway. Her testimony thus impeached Kleist's testimony that Harp was her partner on May 16, 2003, and that Parker was in the section for which Harp was responsible. Only upon the prosecutor's repeated questions to Stahl about her recollections of May 16 did Stahl’s testimony , begin to approach alibi territory. The State should have asked for a ruling of the court if it believed that Harp's direct examination of Stahl had poisoned the well; instead, its cross-examination of Stahl ensured the lethality of the water.

¶ 22. Regardless, Stahl's testimony did not constitute an alibi because it placed Harp in the same building and in the same hallway of the crime scene. Her testimony not only did not indicate that it was physically impossible for Harp to have committed the offense, it placed her "in the immediate vicinity of the crime." Shaw, 58 Wis. 2d at 31. Such testimony is not an alibi under Shaw. "[I]n raising an alibi the defendant is in effect denying that he was present at the scene of the crime at the time it was committed." State v. Horenberger, 119 Wis. 2d 237, 242-43, 349 N.W.2d 692 (1984).

¶ 23. We find the State's reliance on Jensen to be misplaced. Jensen predates Shaw and, unlike Shaw, contains no substantive discussion of the nature of an alibi. See generally Jensen, 36 Wis. 2d 598. Moreover, in Jensen, the defendant had already developed the defense of alibi by testifying that he was not at the crime scene on the night of the crime but was out at the bars with the witness. The witness's proffered testimony in Jensen was arguably alibi testimony because it did not "merely rebut the testimony of [the prosecution's witness] . . . because the testimony that she was not at work corroborate [d] defendant's own testimony that she was indeed with him." Id. at 606. Here, Harp had not advanced a defense of alibi that Stahl's testimony would have reinforced.

¶ 24. Finally, we do not follow the State's argument that the circumstances in which the question of the meaning of alibi arose in Shaw somehow diminishes Shaw's import here. Nothing in Shaw suggests that its definition of alibi is limited to cases in which the question is whether a defendant is entitled to a jury instruction on alibi. We can find no reason to limit Shaw in such a manner.

¶ 25. In summary, we conclude that Stahl's testimony was not of the nature of an alibi, and therefore notice of an alibi witness was not required. Because the circuit court concluded otherwise and based its mistrial order on this mistaken view, it failed to exercise sound discretion in ordering a mistrial. We therefore reverse.

By the Court. — Order reversed.

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

       Wisconsin Stat. § 971.23(8)(a) provides:
      If the defendant intends to rely upon an alibi as a defense, the defendant shall give notice to the district attorney at the arraignment or at least 15 days before trial stating particularly the place where the defendant claims to have been when the crime is alleged to have been committed together with the names and addresses of witnesses to the alibi, if known. If at the close of the state's case the defendant withdraws the alibi or if at the close of the defendant's case the defendant does not call some or any of the alibi witnesses, the state shall not comment on the defendant's withdrawal or on the failure to call some or any of the alibi witnesses. The state shall not call any alibi witnesses not called by the defendant for the purpose of impeaching the defendant's credibility with regard to the alibi notice. Nothing in this section may prohibit the state from calling said alibi witnesses for any other purpose.

       We grant Harp's petition because the mistrial order implicates her right against double jeopardy. "Given the serious constitutional questions raised by claims of double jeopardy, review of such orders will often be necessary to protect the accused from 'substantial or irreparable injury,' one of the three criteria for testing the appropriateness of review under sec. 808.03(2)." State v. Jenich, 94 Wis. 2d 74, 97, 292 N.W.2d 348 (1980).

       The Fifth Amendment to the United States Constitution provides that no person "shall... he subject for the same offence to be twice put in jeopardy of life or limb ...." Article I, section 8 of the Wisconsin Constitution provides that "no person for the same offense may be put twice in jeopardy of punishment . ..." Two recent decisions of the Wisconsin Supreme Court have concluded that certain provisions of the state constitution provide greater protections than analogous provisions of the federal constitution. State v. Knapp, 2005 WI 127, ¶¶ 1-2, 285 Wis. 2d 86, 700 N.W.2d 899 (construing protection against self-incrimination in article I, section 8 of the Wisconsin Constitution to be greater than the Fifth Amendment); State v. Dubose, 2005 WI 126, ¶¶ 39-41, 285 Wis. 2d 143, 699 N.W.2d 582 (construing due process protection in article I, section 8 of the Wisconsin Constitution to be greater than the Fourteenth Amendment). Following State v. Seefeldt, 2003 WI 47, ¶ 15 n.4, 261 Wis. 2d 383, 661 N.W.2d 822, our analysis does not distinguish between the double jeopardy protections of the state and federal constitutions. Id. ("In construing Wisconsin's protection against double jeopardy protection, we are guided by the rulings of the U.S. Supreme Court.") (citation omitted).

       The prosecutor asked Stahl if she "recall[ed] working with Harp on May 16, 2003," to which Stahl replied "yes," then asked additional questions specific to that date. The prosecutor's own comments before the court on the motion for a mistrial suggest that it was not until the cross-examination that testimony implicating the alibi issue was elicited: "When I asked her the questions on cross examination, I was trying to figure out if she was going to specifically testify that on that date she was working with Ms. Harp because that would be the crux of the alibi." (Emphasis added.)

       Because we conclude that the trial court did not exercise sound discretion in ordering the mistrial, we need not address Harp's alternative argument that the State waived its right to object to Stahl's testimony when it did not do so immediately following the direct examination.


author: CANE, C.J.

text:
    Wisconsin Mall Properties, LLC, a Delaware Limited Liability Company Plaintiff-Appellant, v. Younkers, Inc., Saks, Inc. and Parisian, Inc., Defendants-Respondents, City of Green Bay and City of Green Bay Redevelopment Authority, Intervenors-Respondents.
    Court of Appeals

      No. 2005AP323.

      Oral argument September 27, 2005.

      —Decided November 1, 2005.

    2005 WI App 261
    (Also reported in 707 N.W.2d 886.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Gregory B. Conway and Tony A. Kordus of Liebmann, Conway, Olejniczak & Jerry, S.C. of Green Bay. There was oral argument by Gregory B. Conway.

    On behalf of the defendants-respondents, the cause was submitted on the joint brief oí Alan H. Marcuvitz of Michael Best & Friedrich, LLP of Milwaukee, and Gerald L. Angst of Sidley Austin Brown & Wood, LLP of Chicago, Illinois. There was oral argument by Alan H. Marcuvitz and Gerald L. Angst.

    On behalf of the intervenors-respondents, the cause was submitted on the joint brief of Allison C. Swanson, assistant city attorney, of Green Bay, and Benjamin Southwick of Richland Center. There was oral argument by Allison C. Swanson and Benjamin Southwick.

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

       Petition to review granted 1-20-06.

   CANE, C.J.

¶ 1. Wisconsin Mall Properties, LLC, (Mall) appeals an order from the circuit court granting summary judgment in favor of Younkers, Inc., and intervenors the City of Green Bay and the City of Green Bay Redevelopment Authority (collectively the "City"). The Mall argues the circuit court erred by granting summary judgment because (1) an action for breach of contract was not precluded by the condemnation of a lease; and (2) Younkers' obligation to pay costs the Mall incurred in connection with the condemnation, pursuant to the terms of the lease, was not precluded by the condemnation of the lease. We affirm the judgment.

BACKGROUND

¶ 2. In 1993, Younkers, Inc., sold to and subsequently leased back from UTFMW Limited Partnership eight department stores, including a store in downtown Green Bay. Younkers entered into a lease agreement on June 23,1993. Section 5.1(b) of the lease contained a condemnation clause that stated in pertinent part:

[T]his Lease shall not terminate, nor shall Lessee .. . be entitled to the abatement of any rent or any reduction thereof... by reason of any damage to or destruction of... the demised premises from whatever cause, [or] the taking of the demised premises ... by condemnation or otherwise ... it being the intention of the parties hereto that the rent and all other charges payable hereunder... shall continue to be payable in all events and the obligation of the Lessee hereunder shall continue unaffected....

Another provision in the lease prohibited Younkers from seeking to avoid its obligations under the lease. Section 5.1(c) stated that "[l]essee covenants and agrees that it will remain obligated under this lease in accordance with its terms, and that Lessee will not take any action to terminate, rescind, or avoid this lease . . . ."

¶ 3. In 1994, the Mall acquired the Green Bay property and the lease from UTFMW for cash and assumption of debt. Subsequently, in August 2001, the City commenced discussions with Saks (successor to Younkers' interest in the property) and the Mall about a possible friendly condemnation of the property. The City and Saks detailed their plans for the condemnation in a written agreement. In the agreement, the City agreed to indemnify Saks against any claims arising from the condemnation including those made by the Mall. When no agreement on a friendly condemnation could be reached, the City made a jurisdictional offer on October 10, 2003, and filed the award of compensation on November 26, 2003, that condemned not only the property but the lease as well.

¶ 4. Prior to the condemnation, the Mall filed a lawsuit against Saks contending breach of §§ 5.1(b) and 5.1(c) of the lease. The Mall argued that Saks improperly colluded with the City in the condemnation in violation of the lease. The complaint also sought costs and attorney fees the Mall incurred in connection with the condemnation, under § 6.2(a) of the lease. The Mall and Saks filed cross-motions for summary judgment; the City, which agreed to indemnify Saks in the condemnation arrangement, also filed a summary judgment motion as an intervenor on Saks' behalf. On December 20, 2004, the circuit court granted Saks' and the City's summary judgment motions, ruling that condemnation of the lease "trumped" the Mali's contract claim. Accordingly, the court denied the Mali's summary judgment motion.

STANDARD OF REVIEW

¶ 5. We review summary judgment without deference, using the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08. We first ask if the complaint states a claim and then look at the answer to determine if it raises a material issue of fact or law. See Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31 (Ct. App. 1997). If the complaint and answer are sufficient, we turn to the moving party's affidavits to determine if they support a prima facie case for summary judgment. See id. at 232-33. If a prima facie case for summary judgment is found, we ask whether the opposing party's affidavits present disputed material facts that entitle the opposing party to a trial. See id. at 233.

DISCUSSION

¶ 6. The fact pattern before us is novel. After the City was unable to negotiate the terms of a friendly condemnation with the Mall, it proceeded with a condemnation under Wis. Stat. § 32.05. Uniquely, the City condemned not only the property but also the lease, and the Mall attempted to pursue a breach of contract action under the condemned lease. Generally, when a leased property is condemned the lease will terminate in the absence of an agreement to the contrary. Maxey v. Redevelopment Authority of Racine, 94 Wis. 2d 375, 405, 288 N.W.2d 794 (1980). However, we are unable to identify, and the parties fail to provide, a case citation in any jurisdiction involving the condemnation of property and also the lessor's rights under a lease.

¶ 7. The Mall does not challenge the City's right to condemn the property or the lease, and therefore, we do not address this issue. However, the Mall argues the condemnation of the lease does not preclude it from seeking breach of contract damages in circuit court, particularly because it began its suit for breach of contract prior to the condemnation. It contends that Saks breached the lease by colluding with the City in the condemnation and by failing to pay the Mall the amount Saks owed under the lease.

¶ 8. For support of its argument that the condemnation does not preclude a breach of contract action in circuit court, the Mall relies on Van Asten v. DOT, 214 Wis. 2d 135, 571 N.W.2d 420 (Ct. App. 1997), and multiple federal and foreign state appellate cases. In Van Asten, we concluded that a condemnation clause in a lease that directed allocation of a condemnation award was controlling post-condemnation. Id. at 142-43. However, Van Asten and the other cases the Mall cites do not involve a condemnation award that compensated for both the property and the lease. See id. Here, the City's award of compensation stated that the award was payment for both the property and the Mali's interest in the lease.

¶ 9. Our problem with the Mali's argument is that it fails to acknowledge the operation of eminent domain law. In pertinent part, the applicable statute states "[w]hen service of the award has been completed, and after payment of the award .. . title in fee simple to the property ... or the lesser right in property acquired by the award shall vest in the condemnor . .. ." Wis. Stat. § 32.05(7)(c). Therefore, after the City paid the award of compensation, title to the property and interest in the lease passed to the City pursuant to the statute. Consequently, the City replaced the Mall as the lessor. See id. Thus, the Mall may not pursue a breach of contract action, even an action that it began prior to the condemnation, under a lease in which it no longer has any interest.

¶ 10. The Mall further contends that the circuit court reformed the contract in favor of Saks or at best ignored its express terms. The Mall cites several Wisconsin cases, including Wisconsin Marine & Fire Ins. Co. Bank v. Wilkin, 95 Wis. 111, 69 N.W. 354 (1896), and Bay Breeze Condo. Ass'n v. Norco Windows, 2002 WI App 205, 257 Wis. 2d 511, 651 N.W.2d 738, expressing the generally accepted principle that courts should uphold the terms of a contract formed by arms-length parties. Here, however, the trial court has not reformed the contract; rather, it simply acknowledged the City's condemnation of the property and the lease. The City's condemnation, pursuant to Wis. Stat. § 32.05(7)(c), ended the Mall's interest, not a reformation of the lease by the trial court. See Wis. Stat. § 32.05(7)(c).

¶ 11. The Mall next argues that contract damages differ from the compensation paid by the condemnation award. Although the theory of recovery may differ, the record demonstrates that the Mall would be seeking a remedy for the same items in a breach of contract action as provided for in the condemnation award. At the deposition of Russell Jeter, owner and managing member of the Mall, Jeter was asked what damages the Mall sought from Saks due to Saks' alleged breach of contract. In pertinent part, the following exchange occurred:

Q. .. . One of the components of your monetary damages is the rent you would have collected from Saks between December 1, 2003 and the end of the Lease term, correct?"
A. Yes.
Q. Are there any other components of your monetary damages that you are claiming, other than the rent that you've already talked about?
A. In 2014 we would have the fee ownership of a 280,000- square-foot building, which we no longer will have.
Q. So you've talked about two things so far, Mr. Jeter. Just to remind you, you've talked about the missing rent, and you've talked about the value of the property at the end of the Lease term as to components of your damages; correct?
A. Um-hmm.
Q. Are there any others [elements of damages]?
A. Not that I'm aware of... other than the claim we've made which isn't complete for reimbursement of expenses and legal fees that are contained within the Lease.

Statements by the Mali's counsel at the summary judgment hearing confirm that the Mall would seek payments for future rents, the value of the property and costs associated with the condemnation. Further, the Mall provides nothing that demonstrates the damages sought in an action for breach are not the same as the compensation in the condemnation award. The condemnation award covered compensation to the Mall for future rents under the lease and title to the property, leaving only the issue of compensation for costs associated with the condemnation.

¶ 12. The Mall contends, however, that it was not compensated sufficiently by the condemnation award. Specifically, the Mall argues that the compensation paid in the award failed to consider Saks' alleged default. Section 7.1(g) of the lease provided a specific formula to determine damages in the event of default. The Mall argues that the amount paid in the award did not consider a possible default, and it should be allowed the opportunity to prove default in circuit court. If the Mall is able to demonstrate that Saks defaulted, it contends the § 7.1(g) formula would require payment of a greater amount than that in the award of compensation. We are not persuaded this contention is compelling because Wis. Stat. §§ 32.05(9) and 32.05(11) provide a "complete and exclusive" procedure to appeal from the condemnation award. DOT v. Peterson, 226 Wis. 2d 623, 627, 594 N.W.2d 765 (1999) (citation omitted). The Mall may bring an action challenging the amount of the award that will be heard by a county condemnation commission, § 32.05(9), or the circuit court, § 32.05(11). These statutes represent the proper avenue for the Mall to contest the amount in the condemnation award, not a breach of contract action. For the above reasons, we reject the Mall's argument that condemnation of the lease does not preclude it from seeking breach of contract damages in circuit court.

¶ 13. Since the Mall must appeal the award of compensation through the procedures in Wis. Stat. §§ 32.05(9) or 32.05(11), the condemnation commission or the circuit court must consider the terms of the lease and Saks' alleged default when conducting its inquiry into the sufficiency of the award of compensation. Failing to do so would permit a party, through an invited or collusive condemnation by a municipality, to avoid its obligations set forth in a contract. If the Mall proves in the appeal of the award of compensation that Saks defaulted, it is entitled to recover pursuant to the formula in § 7.1(g) of the lease. Of course, the amount of compensation already paid by the City to the Mall should be credited against any adjustment to the award of compensation.

¶ 14. Finally, we reject the Mall's argument, via similar reasoning, that it may pursue costs through contract in circuit court. Pursuant to the terms of the lease, the Mall contends that Saks owes the Mall costs and attorneys fees associated with the condemnation. Again, operation of Wis. Stat. § 32.05(7)(c) has taken the Mali’s interest in the lease and transferred it to the City, and therefore the Mall may not pursue these costs through a breach of contract action. These costs should be considered in the amount of the condemnation award, and certainly the Mall may appeal the amount in the condemnation award pursuant to §§ 32.05(9) and 32.05(11).

¶ 15. In sum, we affirm the trial court's summary judgment in favor of Saks and the City. The City's condemnation of the lease extinguished the Mali's interest in the lease; the Mall may not sustain a breach of contract claim under a condemned contract. The Mall is free to pursue an adjustment to the award of compensation through the process set forth in Wis. Stat. §§ 32.05(9) and 32.05(11). Similarly, the Mall may pursue costs and attorney fees associated with the condemnation through an adjustment of the award of compensation.

By the Court. — Judgment affirmed.

       Saks, Inc., is the successor to Younkers, Inc.'s interest in the lease through a series of corporate mergers. Younkers and Parisian, Inc. are or were at one time members of the Saks corporate family.

       UTFMW is not a party to this appeal.

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

       Specifically, upon Saks' default, § 7.1(g) states that the Mall is entitled to receive "any amount equal to the excess, if any," of: all rent and other expenses which would be payable over the remaining lease term, discounted to present value at five percent per year, over the then fair rental value of the property. In the award of compensation, the City allegedly used a greater discount rate, approximately fifteen percent. The Mall contends the difference between the five and fifteen percent rates amounts to approximately $3.8 million.


author: SNYDER, EJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Brandon E. Jones, Defendant-Appellant.

    Court of Appeals

      No. 2005AP18-CR.

      Submitted on briefs September 14, 2005.

      —Decided November 2, 2005.

    2005 WI App 259
    (Also reported in 707 N.W.2d 876.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Amelia L. Bizzaro of Bizzaro Law Office, S.C., Milwaukee.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sally L. Wellman, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Snyder, EJ., Brown and Nettesheim, JJ.

       Petition to review denied 2-27-06.

   SNYDER, EJ.

¶ 1. Brandon E. Jones appeals from an order for reconfinement following revocation of his extended supervision and an order denying his motion for modification of sentence or resentencing. He contends that the circuit court failed to provide a sufficient rationale for the reconfinement sentence and that the court was required to review the original sentencing transcript and presentence investigation report before ruling on reconfinement. We disagree and affirm the order for reconfinement and the order denying sentence modification or resentencing.

BACKGROUND

¶ 2. On April 2, 2001, Jones pled guilty to one count of delivery of a controlled substance, 500 grams or less of tetrahydrocannabinols (marijuana), contrary to Wis. Stat. § 961.41(l)(h)l. (2001-02). The State recommended fourteen months of initial confinement followed by twenty-four months of extended supervision. Following the sentencing hearing, the circuit court adopted the State's recommendation and imposed sentence accordingly.

¶ 3. Jones completed the confinement portion of his bifurcated sentence and was released to extended supervision on October 8, 2002. Subsequently, the Department of Corrections determined that Jones violated the terms of his extended supervision. Jones waived his right to a revocation hearing, and on March 10, 2004, the DOC revoked Jones's extended supervision.

¶ 4. Pursuant to Wis. Stat. § 302.113(9)(am):

If the extended supervision of the person is revoked, the person shall be returned to the circuit court for the county in which the person was convicted of the offense for which he or she was on extended supervision, and the court shall order the person to be returned to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence.

On April 23, 2004, a reconfinement hearing was held before a different circuit court judge than the one who originally sentenced Jones. At the hearing, Jones's attorney and Jones himself presented statements to the court concerning Jones's achievements since his original sentencing. The court referenced the original offense and sentence, the time available for reconfinement, and the DOC recommendation. The court ultimately concluded, "It just seems that the defendant is unwilling to be supervised in the community. And unfortunately what that reflects is that if he's going to rehabilitate himself, it's going to have to be done in a structured confined setting." The court ordered Jones reconfined for a period of two years, with sentence credit as appropriate.

¶ 5. Jones subsequently moved for modification of his sentence or resentencing pursuant to Wis. Stat. Rule 809.30. Jones challenged the circuit court's recon-finement order, claiming that the court failed to set forth sufficient reasoning for the length of reconfinement and failed to review the sentencing transcript and presentence investigation report. The court denied Jones's motion. Jones appeals.

DISCUSSION

¶ 6. Jones contends that the circuit court failed to set forth sufficient reasons for the length of reconfinement in violation of the principles of sentencing enshrined in McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971). He further contends that the court was required by State v. Reynolds, 2002 WI App 15, 249 Wis. 2d 798, 643 N.W.2d 165 (Ct. App. 2001), to review the original sentencing transcript and presentence investigation report.

¶ 7. We review a sentence imposed by a circuit court to determine whether the court erroneously exercised its discretion. State v. Spears, 227 Wis. 2d 495, 506, 596 N.W.2d 375 (1999). In McCleary, we held that "[discretion is not synonymous with decision-making"; rather, it "depend[s] on facts that are of record or that are reasonably derived by inference from the record and a conclusion based on a logical rationale founded upon proper legal standards." McCleary, 49 Wis. 2d at 277. Legally relevant sentencing considerations include: (1) the gravity of the offense, (2) the character of the offender, and (3) the need to protect the public. See id. at 274. A sentence should generally be affirmed if the facts are fairly inferable from the record and the sentencing court's rationale indicates that it is founded upon legally relevant factors. Id. at 277.

¶ 8. Jones argues that the circuit court should have explained why it did not follow the DOC recommendation for reconfinement and should have acknowledged Jones's achievements since the first sentencing. He contends that the court failed to adequately address all of the required sentencing factors, and therefore the court erroneously exercised its sentencing discretion. The State counters that sentencing factors need not be reiterated at a reconfinement hearing because recon-finement occurs "only after the sentencing court has already done the sentencing analysis and has determined the maximum term of imprisonment the individual should receive." We have stated, however, that decisions that deprive persons of their liberty require meaningful assessment. See State v. Swiams, 2004 WI App 217, ¶ 23, 277 Wis. 2d 400, 690 N.W.2d 452. Furthermore, requiring circuit courts to fully explain reconfinement orders would not lead to any adverse consequences. See id.

¶ 9. We turn then to consider whether the circuit court provided a sufficient rationale for Jones's recon-finement sentence. In Swiams, we held that every person deprived of his or her liberty is entitled to an explanation for the sentence imposed. Id. Nonetheless, how much explanation is actually required "will vary from case to case." State v. Gallion, 2004 WI 42, ¶ 39, 270 Wis. 2d 535, 678 N.W.2d 197. The key is for the circuit court to provide sufficient information about its reasoning so as to allow for meaningful review. The "need for meaningful appellate review of a trial court's decision to take away a person's liberty must be our polestar." Swiams, 277 Wis. 2d 400, ¶ 18.

¶ 10. In State v. Wegner, 2000 WI App 231, ¶ 8, 239 Wis. 2d 96, 619 N.W.2d 289, we considered this very issue. There the judge imposing a reconfinement sentence was the same judge who imposed the original sentence. As in Swiams, we held that the circuit court's duty at sentencing after revocation and its duty at the original sentencing were the same. Wegner, 239 Wis. 2d 96, ¶ 7 n.l. Nonetheless, we clarified the reconfinement court's responsibilities. We held that when a person is being sentenced after revocation, "it is the obligation of the defendant to make the court aware of positive adjustments." Id., ¶ 11. We also delineated a global approach, stating that "[w]e will review the two sentencing proceedings on a global basis, treating the latter sentencing as a continuum of the first." Id., ¶ 7. Our stated goal in this regard was to prevent "mismanagement of judicial resources to require a court to go back to square one when sentencing after revocation." Id., ¶ 9. Finally, we held that proper sentencing discretion can exist without an explicit delineation of the McCleary sentencing factors at reconfinement. Wegner, 239 Wis. 2d 96, ¶ 7. There must, however, be an indication that the circuit court considered those factors. Id. Ultimately, we concluded that as long as the reconfinement court considered the proper factors and the sentence was within the statutory limits, "the sentence will not be reversed unless it is so excessive as to shock the public conscience." Id., ¶ 12 (citing State v. Owen, 202 Wis. 2d 620, 645, 551 N.W.2d 50 (Ct. App. 1996)).

¶ 11. Here, at the reconfinement hearing, the circuit court referenced Jones's original offense and the accompanying sentence. Jones's attorney told the court of Jones's accomplishments while in confinement and after release to the community. For example, she told the court that Jones had completed a parenting class, that his employer considered him to be a hard worker, that he had paid some of the restitution he owed, and that he had obtained his high school diploma while on extended supervision. The court heard and considered the DOC report of Jones's violations of the terms of his extended supervision and the DOC recommendation regarding reconfinement.

¶ 12. We observe that the circuit court connected the DOC report of Jones's "abysmal" conduct while on extended supervision to the court's conclusion that Jones continued to need rehabilitation. The court specifically referenced Jones's extended supervision violations, which are too numerous to list here, but include: consumption of a substance he knew to be marijuana; failing to comply with the Wisconsin Sex Offender Registry; failing to attend sex offender treatment; absconding from supervision; operating an automobile without a valid driver's license; engaging in sexual relationships without his agent's permission; and unsupervised contact with minors. The court stated that Jones's record of violations while on extended supervision indicated that he was "unwilling to be supervised in the community." Accordingly, the court concluded that Jones's rehabilitation would have to occur in a "structured confined setting." From this, we can reasonably infer that the court considered the most important sentencing factors to be the gravity of Jones's offenses and his character.

¶ 13. Jones also contends that the circuit court failed to review the original sentencing transcript and presentence investigation report prior to ordering re-confinement in violation of Reynolds. Reynolds holds that where the "record does not reflect the sentencing judge's awareness of the information in the presentence investigation report, and of the factors the trial judge found significant in... the withholding of sentence, resentencing is appropriate." Reynolds, 249 Wis. 2d 798, ¶ 2. We conclude that Reynolds is not applicable here because of a significant and meaningful difference in the procedural background. In Reynolds, the circuit court withheld sentence and placed Reynolds on probation; a different judge imposed sentence for the first time after revocation of Reynolds's probation. Id., ¶ 4. We conclude that Reynolds is not sufficiently analogous to the case at hand and reject Jones's arguments to the contrary.

CONCLUSION

¶ 14. We conclude that the circuit court exercised its discretion based on facts that are of record or that are reasonably inferable from the record and imposed a reconfinement sentence that is founded on proper legal standards. See McCleary, 49 Wis. 2d at 277. Furthermore, we hold that under the particular circumstances presented here, the court did not err by reconfining Jones without an on-the-record review of the original sentencing transcript and presentence investigation report. Accordingly, we affirm the circuit court's recon-finement order and the order denying Jones's motion for modification of sentence or resentencing.

By the Court. — Orders affirmed.

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

       The DOC memorandum stated in relevant part:
      Mr. Jones has repeatedly demonstrated an unwillingness to comply with the rules of his supervision .... It is recommended that 00 years 07 months and 06 days be served.... [Rleincarceration time is necessary to protect the public, prevent depreciation of the offense, and/or provide treatment in a confined setting. Mr. Jones is a great danger to the community, and to himself.

       Although the circuit court makes no reference to protection of the public as a sentencing objective, we can infer from the nature of Jones's extended supervision violations that reconfinement also advanced the goal of protection of the public. In particular, Jones's failure to comply with Wisconsin's Sex Offender Registry and his unsupervised contact with minors support this inference.

       Because every person deprived of his or her liberty is entitled to an explanation, we encourage courts imposing a reconfinement sentence to make a complete record of the underlying facts, sentencing objectives, and how the sentence imposed fulfills those objectives. See McCleary v. State, 49 Wis. 2d 263, 274-77, 182 N.W.2d 512 (1971). While an appellate court may infer from the record that relevant factors were considered, sentencing courts should be mindful of the need for a sufficient on-the-record rationale when imposing terms of reconfinement.