text:
    Edward A. Hinrichs and Michelle Hinrichs, Plaintiffs-Appellants, Transportation Insurance Company, Plaintiff, v. American Family Mutual Insurance Company, a domestic corporation, Defendant-Respondent, Brian J. Mayr, Defendant.
    Court of Appeals

      No. 00-1659.

      Submitted on briefs October 18, 2000.

    Decided April 19, 2001.

    2001 WI App 114
    (Also reported in 629 N.W.2d 44.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of James W. McCann of Koch & McCann, S.C. of Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Michael J. Wirth oí Peterson, Johnson & Murray, S.C. of Milwaukee.
    Before Dykman, P.J., Vergeront and Roggensack, JJ.

      Petition to review denied.

   DYKMAN, P.J.

¶1. Edward and Michelle Hinrichs appeal from an order dismissing their under-insured motorist insurance claims against American Family Mutual Insurance Company after American Family moved for summary judgment. The Hinrichs argue that the definition of underinsured motorist from Michelle's previous policy applies because American Family never provided Michelle with a Wis. Stat. § 631.36(5) (1997-98) or other notice of a change in coverage. We conclude that § 631.36(5) is not controlling, given the date of the loss, and that the Hinrichs failed to produce evidence that placed the fact of notice in dispute. The Hinrichs also argue that the newer definition of an underinsured motorist used in both Michelle's and Edward's policies is ambiguous when read with another provision in the policies, and that this definition renders their coverage "illusory." We reject these assertions, concluding that the underin-sured motorist provisions of the policies are not ambiguous and that, under Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73, 236 Wis. 2d 113, 613 N.W.2d 557, the definition of an underinsured motorist does not make the Hinrichs' underinsured motorist coverage "illusory."

I. Background

¶ 2. The pleadings and affidavits set forth the following facts. On October 2, 1997, Edward Hinrichs was working in a highway construction area when Brian Mayr struck Edward with his vehicle. As a result, Edward sustained back and other injuries. Mayr was insured by American Family, as were Edward and his wife, Michelle. Mayr's policy provided for $100,000 of liability coverage, and the parties agree that American Family paid this amount to the Hinrichs.

¶ 3. Edward and Michelle each had a policy, and both policies provided a limit of $100,000 underinsured motorist coverage. The definition of an underinsured motorist contained in the policies on the date of the accident defined "underinsured motor vehicle" as "a motor vehicle which is insured by a liability bond or policy at the time of the accident which provides bodily injury liability limits less than the limits of liability of this Underinsured Motorists coverage." Up until April 15, 1992, Michelle's policy defined "underinsured motor vehicle" as "a motor vehicle which is insured by a liability bond or policy at the time of the accident which provides bodily injury liability limits less than the damages an insured person is legally entitled to recover."

¶ 4. The Hinrichs sued American Family, claiming they were entitled to additional amounts under the underinsured motorist provisions of their policies. American Family moved for summary judgment, arguing that Mayr was not an underinsured motorist as defined in the policies. The trial court granted American Family's motion, and the Hinrichs appeal.

II. Analysis

¶ 5. We review a grant or denial of summary judgment de novo, using the same methodology as the circuit court. See M&I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 496-97, 536 N.W.2d 175 (Ct. App. 1995). We need not repeat the entire methodology here, except to note that if a genuine dispute of material fact exists or if the evidence presented is subject to conflicting inferences or factual interpretations, then summary judgment must be denied. See Hanson v. Prudential Prop. & Cas. Ins. Co., 224 Wis. 2d 356, 362, 591 N.W.2d 619 (Ct. App. 1999).

A. Applicable Definition of Underinsured Motorist

¶ 6. The Hinrichs first argue that the definition from Michelle's pre-April 1992 policy applied at the time of Edward's accident because American Family failed to comply with the notice requirements of Wis. Stat. § 631.36(5). Section 631.36(5) requires, among other things, that when an insurer "offers or purports to renew the policy but on less favorable terms," the insurer must notify the policyholder of the new terms sixty days prior to the renewal date. If the insurer fails to comply with the notice requirements in § 631.36(5), then as a general rulé it must "continue the policy for an additional period of time equivalent to the expiring term and at the same premiums and terms of the expiring policy .. . ."

¶ 7. In its oral decision, the trial court determined that any notice that American Family claimed it provided did not, as a matter of law, comply with WlS. Stat. § 631.36(5). The Hinrichs thus argue on appeal that, because American Family did not provide notice complying with § 631.36(5), the definition of underin-sured motorist in effect at the time of the accident in October 1997 was the definition from Michelle's pre-April 1992 policy. We disagree and conclude that § 631.36(5) cannot extend coverage as the Hinrichs contend.

¶ 8. The interpretation of a statute is a question of law for our de novo review. See Roehl v. American Family Mut. Ins. Co., 222 Wis. 2d 136, 142, 585 N.W.2d 893 (Ct. App. 1998). The purpose of statutory construction is to give effect to the legislative intent. Id. When determining legislative intent, we first examine the language of the statute itself, and if the language is unambiguous, we give the language of the statute its ordinary meaning. Id.

¶ 9. Wisconsin Stat. § 631.36(5) (emphasis added) requires insurers to "continue the policy for an additional period of time equivalent to the expiring term." By its plain language, § 631.36(5) tells us that it was not intended to allow expiring policies to continue indefinitely. Instead, the purpose of § 631.36(5) is to permit an insured sufficient time to obtain different insurance if she or he so desires when the terms of an expiring policy are about to change unfavorably.

¶ 10. The Hinrichs point to Hanson, 224 Wis. 2d at 368, in which we applied Wis. Stat. § 631.36(5) and concluded that the definition of an underinsured motorist from an expiring policy controlled after the insurer failed to give the inshred notice in compliance with the statute. However, in Hanson, the expiring policy was in effect from December 16, 1994, to June 16, 1995, and the insured's accident occurred on September 29,1995. Id. at 360-61. Applying § 631.36(5) to the facts in Hanson, we explained:

When an insurer does not comply with the notification requirements of the statute, the insurer is required to continue the policy for an additional period of time equivalent to the expiring policy. Section 631.36(5)(a), Stats. The policy previously in effect, therefore, applies for an additional six-month period and was effective on the date this claim arose.

Id. at 368.

¶ 11. Thus, in Hanson we were not faced with an accident like Edward's, which occurred more than five years after the expiration of the policy Edward and Michelle seek to enforce. Even assuming that American Family failed to comply with Wis. Stat. § 631.36(5), we conclude that the operation of the statute did not extend the terms of Michelle's expiring policy beyond one additional six-month period. Therefore, the Hinrichs cannot rely on § 631.36(5) to apply terms of Michelle's policy that expired in April 1992 to a loss that occurred in October 1997.

¶ 12. The Hinrichs also argue that, even aside from WlS. Stat. § 631.36(5) notice, there is nothing in the record to show that Michelle ever received a policy that contained the newer definition. Therefore, the Hinrichs contend, the trial court improperly granted summary judgment in favor of American Family because there is nothing on which the court could base a conclusion that Michelle knew of the policy change. We disagree with this analysis.

¶ 13. To establish a genuine issue of material fact, the party opposing summary judgment "may not rest upon the mere allegations or denials of the pleadings, but must file affidavits or other supportingpapers based upon personal knowledge of specific evidentiary facts that are admissible." Helland v. Kurtis A. Froedtert Mem. Lutheran Hosp., 229 Wis. 2d 751, 764, 601 N.W.2d 318 (Ct. App. 1999). Michelle's affidavit is a part of the record, and in that affidavit, she fails to say that she did not receive policies or endorsements reflecting the new definition, nor does anything in her affidavit imply that she did not receive them. The strongest statement Michelle makes with regard to this issue is as follows:

At no time from April 15,1992 up to the date of the accident of October 2, 1997 was I advised by American Family Mutual Insurance Company or anyone on their behalf that the definition of an underinsured motor vehicle had been changed...."

This statement does not place in dispute the fact of Michelle's receipt sometime after April 1992 of a copy of her policy or an endorsement showing the change in underinsured motorist coverage. Therefore, the trial court did not err in granting summary judgment.

B. Validity of Underinsured Motorist Provisions

¶ 14. The Hinrichs next argue that the definition of underinsured motorist in both their policies is ambiguous when read with another underinsured motorist provision in the policies. The Hinrichs also argue that the policies create "illusory" coverage because the $100,000 limit of underinsured motorist coverage shown on the declarations pages is never obtainable. Whether an insurance policy is ambiguous and whether an insurance policy is "illusory" are both questions of law. Wisconsin Label Corp. v. Northbrook Prop. & Cas. Ins. Co., 2000 WI 26, ¶ 24, 233 Wis. 2d 314, 607 N.W.2d 276 (ambiguous); Hoglund v. Secura Ins., 176 Wis. 2d 265, 268, 500 N.W.2d 354 (Ct. App. 1993) (illusory). We may therefore resolve these questions within the context of our summary judgment review. See Miller v. Thomack, 210 Wis. 2d 650, 658, 563 N.W.2d 891 (1997).

¶ 15. The terms of an insurance policy are ambiguous only when they are fairly susceptible to more than one reasonable construction. See Maas v. Ziegler, 172 Wis. 2d 70, 79, 492 N.W.2d 621 (1992). Complex or cumbersome policy language does not necessarily render an insurance policy ambiguous. See Sukala v. Heritage Mut. Ins. Co., 2000 WI App 266, ¶ 10, 240 Wis. 2d 65, 622 N.W.2d 457.

¶ 16. As American Family points out, the definition of underinsured motorist in the Hinrichs' policies is nearly identical to the definition that the supreme court concluded was unambiguous in Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 811, 456 N.W.2d 597 (1990). Nevertheless, the Hinrichs contend that the definition in their policies is ambiguous when read with another provision in their policies, which states:

We [American Family] will pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle. The bodily injury must be sustained by an insured person and must be caused by accident and arise out of the use of the underinsured motor vehicle.

We disagree that the two provisions combine to make the policy ambiguous. The latter provision clearly refers to and depends on the policies' definition of "underinsured motor vehicle," which appears on the same page. Moreover, words and phrases that are specifically defined by American Family appear in boldface type throughout the policy. The only reasonable construction of the provision necessarily includes the definition of "underinsured motor vehicle" provided in the policies.

¶ 17. We also disagree with the Hinrichs' assertion that their underinsured motorist coverage is "illusory." In Sukala, 2000 WI App 266 at ¶20, we determined that reducing clauses like those in WlS. Stat. § 632.32(5)(i) do not render underinsured motorist coverage illusory. We rested our decision on two grounds: (1) the legislature's determination that clauses like those in § 632.32(5)(i) are permissible, and (2) the supreme court's statement in Dowhower that:

an insurer may reduce payments made pursuant to a UIM [underinsured motorist] policy by amounts received from other legally responsible persons or organizations, provided that the policy clearly sets forth that the insured is purchasing a fixed level of UIM recovery that will be arrived at by combining payments made from all sources.

Sukala, 2000 WI App 266 at ¶ 16, ¶ 18 (quoting Dowhower, 2000 WI 73 at ¶ 33).

¶ 18. The Hinrichs cite to Kuhn v. Allstate Ins. Co., 181 Wis. 2d 453, 463-65, 510 N.W.2d 826 (Ct. App 1993), aff'd on other grounds, 193 Wis. 2d 50, 532 N.W.2d 124 (1995), in which we held that underinsured motorist coverage was illusory where the plaintiffs would receive some but never all of their $50,000 limit in coverage because of the operation of a reducing clause. Unlike in Dowhower and Sukala, the policy provision at issue in Kuhn was not a reducing clause like those in Wis. Stat. § 632.32(5)(i).

¶ 19. We question whether there is any logic in distinguishing between reducing clauses that reduce underinsured motorist coverage and definitions that reduce underinsured motorist coverage as here, but that distinction remains in the case law. At any rate, to the extent that our decision in Kuhn and the supreme court's opinion in Dowhower conflict when applied here, we must resolve that conflict in favor of the supreme court's decision. See Sukala, 2000 WI App 266 at ¶ 20.

¶ 20. What the Hinrichs mean when they argue that the $100,000 limit in Michelle's or Edward's policy is "never obtainable" is that it is never obtainable under one of their policies without considering payments received from other sources. The Hinrichs do not mean that they could never receive $100,000 in benefits when one of them has been involved in an accident with an underinsured motorist, as defined in the policies. In fact, $100,000 is the amount that American Family paid to the Hinrichs here, although American Family did so pursuant to its liability under Mayr's policy.

¶ 21. In Dowhower, 2000 WI 73 at ¶ 33 (emphasis added), the supreme court explained that the key to valid underinsured motorist coverage is that the policy "clearly sets forth that the insured is purchasing a fixed level of UIM recovery that will be arrived at by combining payments made from all sources." This language rejects the crux of the Hinrichs' argument that the $100,000 limit of their policies is never obtainable. It is obtainable by combining payments made from all sources.

¶ 22. We have already concluded that the under-insured motorist provisions in the Hinrichs' policies are unambiguous. Once we have made that determination, no additional analysis is necessary to determine that the provisions "clearly set forth" the method by which a fixed level of recovery will be calculated. Under Dowhower, the underinsured motorist coverage in the Hinrichs' policies is not "illusory."

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted. Wisconsin Stat. § 631.36(5) reads in part:
      Renewal WITH ALTERED TERMS, (a) General. Subject to pars, (b) and (d), if the insurer offers or purports to renew the policy but on less favorable terms or at higher premiums, the new terms or premiums take effect on the renewal date if the insurer sent by 1st class mail or delivered to the policyholder notice of the new terms or premiums at least 60 days prior to the renewal date. If the insurer notifies the policyholder within 60 days prior to the renewal date, the new terms or premiums do not take effect until 60 days after the notice is mailed or delivered, in which case the policyholder may elect to cancel the renewal policy at any time during the 60-day period. The notice shall include a statement of the policyholder's right to cancel. If the policyholder elects to cancel the renewal policy during the 60-day period, return premiums or additional premium charges shall be calculated proportionately on the basis of the old premiums. If the insurer does not notify the policyholder of the new premiums or terms as required by this subsection prior to the renewal date, the insurer shall continue the policy for an additional period of time equivalent to the expiring term and at the same premiums and terms of the expiring policy, except as permitted under sub. (2) or (3).

       A partial release form shows that Edward received $100,000, but for the sake of accuracy, we note that at least one document in the record suggests that a portion of this amount was paid directly to a worker's compensation insurer.

       Wisconsin Stat. § 631.36(5) does not apply when the change in a renewed policy is a result of legislative action rather than a change initiated by the insurance company. Hanson v. Prudential Prop. & Cas. Ins. Co., 224 Wis. 2d 356, 359-60, 591 N.W.2d 619 (Ct. App. 1999).

       Because we conclude that Wis. Stat. §631.36(5) cannot extend coverage as the Hinrichs contend, we need not decide whether, under summary judgment methodology, the trial court properly determined that American Family failed to provide notice in compliance with § 631.36(5).

       Wisconsin Stat. § 632.32(5)6) reads:
      A policy may provide that the limits under the policy for uninsured or underinsured motorist coverage for bodily injury or death resulting from any one accident shall be reduced by any of the following that apply:
      1. Amounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made.
      2. Amounts paid or payable under any worker's compensation law.
      3. Amounts paid or payable under any disability benefits laws.

       Although the supreme court affirmed Kuhn on other grounds, we treat our decision in Kuhn as binding. Sweeney v. General Cas. Co., 220 Wis. 2d 183, 192-93, 582 N.W.2d 735 (Ct. App.1998).

      The Kuhn case arose before Wis. Stat. § 632.32(5)(i) existed. See 1995 Wis. Act 21, § 4.


source: Caselaw Access Project

author: SCHUDSON, J. FINE, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Carroll D. Watkins, Defendant-Appellant.
    Court of Appeals

      No. 00-0064-CR.

      Oral argument March 6, 2001.

    Decided April 24, 2001.

    2001 WI App 103
    (Also reported in 628 N.W.2d 419.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven P. Weiss, assistant state public defender. There was oral argument by Steven P. Weiss.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Stephen W. Kleinmaier, assistant attorney general. There was oral argument by Stephen W. Kleinmaier.

    Before Fine, Schudson and Curley, JJ.

      Petition to review granted.

   SCHUDSON, J.

¶1. Carroll D. Watkins appeals from the judgment of conviction for second-degree intentional homicide, following a bench trial, and from the order denying his motion for postconviction relief. He argues that: (1) the State failed to meet its burden of proving beyond a reasonable doubt that the shooting was not accidental; (2) trial counsel rendered ineffective assistance by failing to investigate the victim's background, and thus failing to apprise the trial court of information about the victim that would have supported the defense theories of self-defense and accident, and would have established mitigating factors at sentencing; (3) the case was not fully or fairly tried and, therefore, a new trial is required in the interests of justice; (4) the thirty-year prison sentence is unduly harsh; and (5) resentencing is required, under State v. Spears, 227 Wis. 2d 495, 596 N.W.2d 375 (1999), to allow the court to consider additional information about the victim.

¶ 2. We conclude that the evidence did not disprove, beyond a reasonable doubt, Watkins' defense that the shooting was accidental. Accordingly, we need not address Watkins' other arguments, and we reverse. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) ("As one sufficient ground for support of the judgment has been declared, there is no need to discuss the others urged.").

I. BACKGROUND

¶ 3. Watkins and Glenn Malone were members of an Omaha, Nebraska-based traveling crew of a company that had contracted to clean equipment at a power plant in Oak Creek. They had known each other and worked together for about one and one-half years and, for this job, they were rooming together at a motel in Oak Creek. They had not had previous problems with each other but, on the night of April 19, 1998, in their motel room, Watkins shot and killed Malone.

¶ 4. The State charged Watkins with first-degree reckless homicide, while armed. When Watkins declined to plead guilty, the State filed an amended information charging him with first-degree intentional homicide, while armed. Following a bench trial, however, the trial court found Watkins guilty of second-degree intentional homicide and sentenced him to thirty years in prison.

¶ 5. Watkins was the only source of information about most of the circumstances leading to the shooting. He gave a statement to Oak Creek Police Detective Andre Antreassian and testified at trial. Watkins said that on April 19 he and his crew had completed the job at the power plant and were preparing for their return to Omaha the next day. He discovered that a pair of his work gloves was missing from the company truck he had been driving, and he mentioned this to Malone. Malone admitted taking the gloves, and later he returned them.

¶ 6. Watkins said that after his conversation with Malone, he told his supervisor, Gerald (Jerry) Dorr, about the work-gloves incident as they were doing their laundry in the motel laundry room. Malone came in and may have overheard Watkins' conversation with Dorr. No further problems or discussion about the gloves, however, occurred until hours later.

¶ 7. That evening, Watkins and Malone were in their motel room socializing and drinking beer with Dorr and another member of their crew, Gallen Null. Watkins and Malone each drank about five or six beers. Watkins testified that at about 10:30 p.m., shortly after Dorr and Null left their room, he commented on the fact that Malone had not been wearing a shirt as they socialized with Dorr and Null. Watkins explained that "as a man[-]to[-]man friendly gesture," and in a "lighthearted, comradery [sic] way," he told Malone "that he didn't have to sit there without his shirt on showing his muscles off in front of [Dorr]." Watkins testified that the statement "just was something to break the conversation open so [he] could get around to saying [t]hat [he] wanted to talk to [Malone] about the gloves." Additionally, Watkins testified, "I wanted to tell Mr. Malone that I respected him for admitting to taking 'em and thank him for returning them right away and that we would go on with our friendship, and I would not hold it against him."

. ¶ 8. According to Watkins, Malone did not appreciate his comments. Detective Antreassian, reading portions of his supplemental report of Watkins' state-mént following his arrest, testified:

Watkins stated that he brought up the glove incident to Glenn, and Glenn became very upset and got loud and went to his bed . . . talking about racial prejudices, and Watkins stressed . . . that he's not prejudiced, and his reply to Glenn was, ["]Glenn, you know, I'm not prejudiced.["] And Watkins stated that Glenn then went to his bed, . . . that Glenn was very upset, and at this point Watkins took the gloves and tossed them lightly at Glenn, and they landed next to Glenn on the bed. Watkins stated that he then said to Glenn, ["H]ere you go, ■keep 'em.["]
. . .Glenn threw the gloves back at him, hitting him in the chest, and Watkins thinks he may have tossed the gloves back towards Glenn, but he is . . . unsure.
... [A] verbal argument still continued, and as [Watkins] was sitting in the . . . chair near the window area, Glenn got up from the bed and approached him,... standing over him with a bottle of Budw[e]iser, shaking and trying to intimidate [him]. . .. Glenn implied that he would hit Watkins with the bottle but never did.

¶ 9. Watkins, according to Detective Antreas-sian's testimony, then described a series of confrontations in which Malone grabbed him and shook him, with Malone returning to his own bed after each episode. Detective Antreassian continued:

Watkins told me that things were calming down when all of a sudden Glenn Malone got up again from his bed for the fourth time, and he approached Mr. Watkins, who was still seated in the chair, and he grabbed Mr. Watkins with both of his hands around the front part of the hooded sweatshirt and lifted Mr. Watkins completely off the chair, throwing him back in the chair, saying he was going to fuck him up.
Watkins described Glenn's demeanor as very upset, and Glenn was gritting his teeth, talking through his teeth and [with] an intense anger in his face. Watkins stated that... Glenn's intensity grew every time he had returned from sitting on the bed.
Watkins stressed that at no time did Glenn physically punch him or assault him but did grab Mm by the front of the sweatshirt and shook him intensely. Watkins then explained . . . that Glenn stomped off and went back to his bed, and at this point Watkins became very, very upset.
Watkins stated that he reached into his briefcase and got out Ms gun and pointed it at Glenn. Watkins stated that he definitely knew his gun had been loaded, and he also was aware that Glenn knew the gun had been in the room.
Watkins stated that as he was pointing [ ]his gun at Glenn from across the room, he stated, ["Tjhat's it, I'm not taking no more shit. One of us has to go, you or me. One of us has to make the call.["] Watkins stated that he held the gun on Glenn as he moved towards the phone, stating[, "D]on't move, don't get up.["] Watkins stated that he was trying to calm the situation, and he felt if he pointed the gun at Glenn, Glenn would be in fear and would not assault him anymore, any further.
Still pointing the weapon at Glenn while Glenn was lying on the bed,... Watkins was able to call... the room of Jerry Dorr.. ..
. . . [0]nce the phone had been answered by Jerry, he stated, . . . ["]Jerry, I need you down here right away, or I'm going to kill him.["]
Watkins . . . then . . . clarified . . . that [h]e stated, ["]I'm not sure if I said kill him, but I did say for sure, Jerry, I need you down here right away.["]
... Watkins told me that he hung up the phone, and he kept the gun pointed out with a full extension of his right arm, stating, ["]don't move,["] to Glenn.
. . . [A]s [Watkins] was standing at the foot of the bed with his arms fully extended and the gun ■pointed at Glenn, Glenn got off the bed, walked Slowly towards Watkins, and Glenn was talking. Watkins stated that he was unsure what Glenn was saying, but Glenn was talking in a low key and with no anger.
. . .[W]hen Glenn got a couple feet away from Watkins, Glenn grabbed for Watkins' gun arm, and Watkins let his instincts go, and everything happened so fast he just heard a boom and saw Glenn go down.
Watkins stated that he did not intentionally shoot Glenn, it just went off by instincts.

Under cross-examination, Detective Antreassian clarified that, in his report of Watkins' statement, he repeatedly referred to Watkins saying that the gun "went off by instincts" because that was "the only phrase [he] would get out of [Watkins]" during the interview.

¶ 10. Watkins testified that Malone was particularly violent during the fourth confrontation:

This time he was really upset and he grabbed me by the sweatshirt, and he just literally pulled me up out of my chair so hard that I was off my feet, but he slammed his fist into my jaw, which loosened my lower plate and ended up cutting my gum pretty bad. He said, ["]I ought to fuck you up, I could kill you,["] and he just hurled me backwards in the chair[;] chair went over, I slammed into the wall.

¶ 11. In his testimony, Watkins also offered added details of the shooting. He said that after calling Dorr, he looked toward the door, "hoping Jerry's going to come through," and then:

I felt [Malone] grab my right hand, right wrist, and that I had the gun in. My gun arm. I turned back around real quick, something hit me in the face, I jump, I realize he's grabbed my arm, I jump for his arm, and I grabbed his wrist.
There is a struggle for possession of the gun. We were trying to keep it away from us. I went to get in tight so I could have some control over it, he reaches and grabs it with his other arm or other . hand, and we're swinging back and forth, and it goes off.
... I did not intentionally pull the trigger.
I feel that when he was grabbing it with his right hand and trying to wrestle it from my grasp, I just tightened up, instinctively tightened up the hold onto it. Once I realized he was going for the gun, I just — everything I had went to try and to maintain control of the gun. I didn't want anybody getting hurt.

¶ 12. Substantial independent evidence provided possible corroboration for certain aspects of Watkins' account:

(1) Dorr testified, confirming that Watkins had told him about the work gloves that afternoon in the laundry room. He also testified that when he was socializing with Watkins and Malone in their room between about 9:00 and 10:30 p.m., the atmosphere was friendly, the gloves were not mentioned, and he sensed no antagonism between Watkins and Malone. He confirmed that at about 11:10 or 11:15 that night, Watkins called him and said: "[Y]ou better get down here, I'm going to kill him. . . . [J]ust get down here." Dorr also testified that, as he approached Watkins' room right after the shooting, Watkins was on the sidewalk in front of the room "screaming at the top of his lungs, 'why didn't you stop, why didn't you stop?' . . . [a]most like he was addressing Glenn," and that, when he asked Watkins what was wrong, Watkins answered, "[0]h, my God, I killed him, I killed him."
(2) Susan V. Sanders, a forensic scientist from the Wisconsin State Crime Laboratory, testified that DNA evidence collected from Malone's right hand fingernail clippings carried Watkins' blood and/or skin tissue.
(3) Photographs of Watkins taken shortly after his arrest showed abrasions and blood on the bridge of his nose, directly beneath his left eyebrow, on his chest and upper abdomen and, possibly, on his hands.
(4) Dr. Jeffrey M. Jentzen, Milwaukee County Medical Examiner, testified that "the weapon was within a one- to three-inch area distance from the skin of the right cheek [of Malone] at the time the weapon was fired."
(5) Detective Antreassian, comparing the physical evidence to Watkins' reenactment of the incident during their interview, was asked "[w]hether it was impossible for it to have occurred the way [Watkins] said." Detective Antreassian answered: "No. It was very possible the way he said." The evidence also established that after the shooting, Watkins placed a towel over Malone's head, remained at the scene, waited for police, offered no resistance to his arrest, and was cooperative.

¶ 13. In its oral decision finding Watkins guilty of second-degree intentional homicide, the trial court found that Watkins "did intentionally kill the victim while believing that he was in danger but used more force than was reasonably necessary in the situation." The court acknowledged that "the injuries ... to the defendant's head and chest, as well as the DNA under the victim's fingernails, support the testimony that a struggle did take place." (Emphasis added.) While also acknowledging that Watkins "had no duty to retreat from the room," the court commented that "the door was always a reasonable option" and that "[rjetreat seems, clearly, to have been a viable option and one that [Watkins] knew about during the entire confrontation, but according to his testimony, never considered." Focusing on the moment of the shooting, the court also observed:

I don't believe that the defendant formed the intent well in advance of the action or even minutes in advance, but the evidence supports that when the victim approached him and reached for the gun, whether you call it instinct or not, he formed the requisite intent and acted upon it and rejected other available options.

(Emphasis added.)

¶ 14. In its written decision denying Watkins’ motion for postconviction relief, the court further explained:

The court expressly rejected defendant's claim of accident by finding that the [S]tate had proven him guilty of second[-]degree intentional homicide beyond a reasonable doubt. The [c]ourt did consider the defendant's assertion of accident and found it not credible in light of all of the evidence. . . .
... In meeting the burden of proving that an intentional homicide took place ... beyond a reasonable doubt, the [SJtate also disproved the accidental theory of the defense.

II. DISCUSSION

¶ 15. Watkins argues that the State failed to negate his accident defense and that the trial court failed to consider it. Relying on all the evidence and emphasizing the testimony of prosecution witnesses, Watkins persuasively posits a reasonable hypothesis consistent with his innocence — that, in arming himself with the gun, pointing it at Malone and warning him to stay away, and calling Dorr to intervene, he was reasonably acting in self-defense and that, when struggling with Malone for the gun, he shot Malone accidentally. Watkins maintains that the State failed to disprove that defense beyond a reasonable doubt. We agree.

¶ 16. A defendant who raises an affirmative defense of accident to a charge of first-degree intentional homicide may not be convicted unless the State's evidence proves all the elements of the crime beyond a reasonable doubt, and also disproves the defense beyond a reasonable doubt. See Moes v. State, 91 Wis. 2d 756, 763-68, 284 N.W.2d 66 (1979).

¶ 17. Frequently, Wisconsin appellate courts quote portions of State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990), to summarize the standard of review for challenges to the sufficiency of evidence to support a criminal conviction. Here, we do so again, emphasizing certain passages because, as we will explain, our decision in this case derives directly from the application of these standards to the trial court's factual findings:

Regardless of whether the evidence presented at trial to prove guilt is direct or circumstantial, it must he sufficiently strong and convincing to exclude every reasonable hypothesis consistent with the defendant's innocence in order to meet the demanding standard of proof beyond a reasonable doubt.
The rule that the evidence must exclude every reasonable hypothesis of innocence does not mean that if any of the evidence brought forth at trial suggests innocence, the [fact finder] cannot find the defendant guilty. The function of the [fact finder] is to decide which evidence is credible and which is not and how conflicts in the evidence are to be resolved. The [fact finder] can thus, within the bounds of reason, reject evidence and testimony suggestive of innocence. Accordingly, the rule that the evidence must exclude every reasonable hypothesis of innocence refers to the evidence which the [fact finder] believes and relies upon to support its verdict.
. . . The appellate standard of review of the sufficiency of evidence to support a conviction is the same whether the evidence presented at trial is direct or circumstantial.
Under that standard, commonly referred to as the reasonable doubt standard of review:
'The burden of proof is upon the state to prove every essential element of the crime charged beyond reasonable doubt. The test is not whether this court or any of the members thereof are convinced [of the defendant's guilt] beyond reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be so convinced by evidence it had a right to believe and accept as true .... The credibility of the witnesses and the weight of the evidence is for the trier of fact. In reviewing the evidence to challenge a finding of fact, we view the evidence in the light most favorable to the finding. Reasonable inferences drawn from the evidence can support a finding of fact and, if more than one reasonable inference can be drawn from the evidence, the inference which supports the finding is the one that must be adopted ....'

Id. at 502-04 (emphases added; citations and footnotes omitted). Here, accepting the evidence the trial court believed and relied upon to support its verdict, we conclude that the evidence, viewed most favorably to the State and to the verdict, did not disprove Watkins' accident defense beyond a reasonable doubt.

¶ 18. Significantly, as we have noted, the trial court specifically found that Watkins believed that he was in danger, that Watkins' injuries and the DNA evidence "supported] the testimony that a struggle did take place," that Watkins shot Malone when "[Malone] approached him and reached for the gun," and that the fatal shot was fired from a distance of one to three inches.

¶ 19. Essentially, the trial court rejected only Watkins' claim that, at the final moments, the shooting was accidental. As Watkins points out, however, the trial court, in its verdict decision, did not mention Watkins' accident defense or articulate any basis for rejecting it. And in its decision denying Watkins' post-conviction motion, the court summarized the evidence, stated that it had "rejected defendant's claim of accident by finding that the [S]tate had proven him guilty of second[-]degree intentional homicide beyond a reasonable doubt," but only specifically addressed that theory of defense by stating that it "did consider the defendant's assertion of accident and found it not credible in light of all of the evidence."

¶ 20. The court, however, did not identify what, in "all of the evidence," disproved the accident defense beyond a reasonable doubt, given its several critical factual findings supporting Watkins' account. We have searched the trial record and, fully accepting the trial court's factual findings regarding the substantial evidence supporting Watkins' defense, we conclude that the evidence, viewed most favorably to the conviction, failed to disprove Watkins' defense beyond a reasonable doubt.

¶ 21. Added support for our conclusion comes from comments of both the prosecutor and the trial court at sentencing. The prosecutor noted, "In my perspective of it, it's somewhat vague what happened." And the trial court observed:

I don't feel after hearing all the testimony that we really know what happened that night.
... I don't think that we know the real dialogue that took place between [Watkins and Malone], why things got out of control and why there was such anger and aggression exhibited. I don't think that I was ever really told the full facts in the trial.
I don't think it had to do with not wearing a shirt, I don't think it had to do with gloves. I don't know what it had to do with. Perhaps the defendant knows, but I certainly don't feel that I came out of the trial understanding why this situation took place.
I do note that it was out of character for the defendant. He doesn't have a history of violence, he doesn't have a history of antisocial behavior, he doesn't have a history with this particular victim of having any antagonism or bad feelings.
They worked together for a year and a half and had gotten along quite well during that time period, so why it took place and erupted on that evening is a tragedy that we'll probably never understand entirely.
I don't believe that it was planned, I don't believe that it was a setup from earlier in the day, I think it erupted on the spot and at that time for reasons unknown.

¶ 22. Confronted with its sentencing comment, "I don't feel after hearing all the testimony that we really know what happened that night," the court, in its post-conviction decision, maintained that "[t]his statement was taken out of context and referred to the fact that the defendant had been inconsistent in his explanations of what took place between the victim and himself prior to the final confrontation." Still, the court offered no evidentiary basis for, on the one hand, accepting Watkins' account of the events leading up to the shooting and acknowledging that his conduct and character were inconsistent with violent, antisocial behavior, and, on the other hand, rejecting his account of the final moments preceding the shooting. Or viewed somewhat differently, and with the benefit of the court's additional comments at sentencing, the post-conviction court offered no evidentiary basis for conceding so much uncertainty about the events leading up to the shooting while, at the same time, asserting such certainty about the next split seconds.

¶ 23. While certainly not dispositive, the shaky foundation for the rejection of Watkins' accident defense may also be detected from the progression of some of the State's arguments. As noted, in his closing argument, the prosecutor, without any evidentiary support, erroneously asserted that the fatal shot was fired from a distance of eighteen inches to two feet. Had he been mindful of the true distance — one to three inches — what could he have argued to disprove the defense of accident beyond a reasonable doubt? And, as noted, in its brief to this court, the State initially and erroneously sought to support this conviction by arguing that "accident is not an affirmative defense" that must be disproved beyond a reasonable doubt.

¶ 24. At oral argument, however, having conceded the error of its earlier contention about the accident defense, the State offered an intriguing, alternative argument: that under the circumstances of this case, Watkins could not invoke the accident defense. The State cited the supreme court's declaration in State v. Bond, 41 Wis. 2d 219, 228, 163 N.W.2d 601 (1969), that "[i]f one plays with matches in a hay stack, he can hardly claim that a resulting fire was neither intentional nor negligent." Thus, the State argued, Watkins, having introduced a loaded gun into a volatile situation, could not claim that the shooting was accidental.

¶ 25. We disagree. We appreciate the trial court's comment that "the door was always a reasonable option" for Watkins, and we recognize that, at the very least, Watkins' decision to arm himself with a loaded gun was an extremely dangerous one. We cannot conclude, however, as a matter of law, that a person, fearing further attack, who arms himself with a loaded gun, points it at the aggressor, warns him to stay away, and calls for help has precluded the invocation of an accident defense to a shooting that occurs when the aggressor struggles for the gun.

¶ 26. Here, unquestionably, the evidence — and, indeed, virtually all the trial court's critical factual findings — rendered a reasonable hypothesis consistent with Watkins' accident defense. Doubts abound, and any suggestion that the evidence disproved the accident defense beyond a reasonable doubt would be based on pure speculation. See Foseid v. State Bank of Cross Plains, 197 Wis. 2d 772, 791, 541 N.W.2d 203 (Ct. App. 1995) (verdict cannot be based on "conjecture and speculation"); Cudd v. Crownhart, 122 Wis. 2d 656, 662, 364 N.W.2d 158 (Ct. App. 1985) (verdict cannot be based on "mere speculation").

¶ 27. This was a terribly difficult case in many respects, and our decision should not be read as a criticism of the trial court. Indeed, the record reflects the trial court's earnest efforts to carefully consider the evidence and render just decisions. Even more importantly, we recognize that this shooting brought tragedy to two families. We have carefully reviewed the letters and statements offered at sentencing, and we fully appreciate the Malone family's compelling call for justice. We recognize, therefore, that our decision can only intensify the pain produced by Glenn Malone's death. Like both families, we would so much prefer to turn back the clock, but our authority allows us only to apply the law and trust that, someday, justice will come for all.

By the Court. — Judgment and order reversed and cause remanded.

FINE, J.

(dissenting).

1. Sufficiency of the evidence.

¶ 28. The majority gives lip service to State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990), but, in my view ignores its teaching that "an appellate court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." Id., 153 Wis. 2d at 507, 451 N.W.2d at 757-758. Here, in my view, the trial court gave more weight to what Carroll D. Watkins told the police officer immediately after the shooting than it did to Watkins's testimony. This it was permitted to do. It was also permitted to disregard parts of either Watkins's statement to the police officer or Watkins's testimony, and, rather, decide the case on the evidence as a whole.

¶ 29. In its oral decision finding that Watkins had the requisite intent, the trial court noted that:

• before pulling the trigger, Watkins told his foreman that the foreman had better come to the room before Watkins killed the victim;
• Watkins took his gun out of a briefcase, pulled the slide back, and loaded a bullet in the chamber;
• with the freshly loaded gun in his hand, Watkins "mov[ed] toward the victim."

¶ 30. Although not specifically mentioned by the trial court in its oral decision, the following from the officer's report of what defendant told him, and from defendant's trial testimony, supports the trial court's verdict:

Watkins, who had been abused by the victim earlier, "became very very upset" after the victim had let him go and the victim "stomped off and went back to his bed."
• The victim was on his own bed and was not then threatening Watkins when Watkins got and loaded his gun, and pointed it at the victim.
• The victim was still on his own bed when Watkins, pointing the freshly loaded gun at him, told their foreman that he, Watkins, needed the foreman "right away or I'm going to kill him."
• After telling the foreman that he might "kill" the victim, Watkins "kept the gun pointed out with a full extension of his right arm," warning the victim: "Don't move."
• The victim, however, did move, and "got up off of the bed [and] walked slowly towards" Watkins.
• When the victim "got a couple of feet away from" Watkins, the victim "grabbed for Watkins' gun arm and Watkins let his instincts go and every thing happened so fast, he just heard a boom and saw [the victim] go down." (Uppercasing omitted.)

¶ 31. As the State cogently points out in its brief on this appeal, "the court could find that [Watkins] fired the gun before [the victim] grabbed his arm," and that there was no struggle over the gun. Indeed, this is precisely what the trial court did find: "I don't believe that [Watkins] formed the intent well in advance of the action or even minutes in advance, but the evidence supports that when the victim approached him and reached for the gun, whether you call it instinct or not, he formed the requisite intent and acted upon it and rejected other available options." (Emphasis added.)

¶ 32. "Intent" is an element of second-degree intentional homicide. WlS. STAT. § 940.05(1). " 'With intent to' or 'with intent that' means that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result." Wis. Stat. § 939.23(4). Under our criminal law, a person "intends" to do an act if he or she forms that intent, or awareness, at any time before the act — even a fraction of a second before. Perugi v. State, 104 Wis. 230, 242—245, 80 N.W. 593, 595, 597-598 (1899) (approving the following jury instructions: " 'There may be no appreciable space of time between the intent to kill and the act of killing ... It is enough that the intent to kill preceded the fatal act although the act followed instantly.'"), overruled on other grounds, Montgomery v. State, 128 Wis. 183, 198, 107 N.W. 14, 19 (1906).

¶ 33. In my view, the trial court rationally rejected a Billy-Budd, reflexive explanation, found that the State had disproved beyond a reasonable doubt "accident," and determined that Watkins did, in fact, intend to kill the man who had been abusing him all evening. Under our standard of review, we must affirm the conviction. See Poellinger, 153 Wis. 2d at 507, 451 N.W.2d at 758 ("If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it.").

2. Ineffective assistance of counsel.

¶ 34. Watkins also claims that his trial lawyer gave him ineffective assistance because the lawyer did not seek to introduce evidence of the victim's violent past. Assuming that such evidence would be admissible even though Watkins does not claim that he knew about the instances he says his lawyer should have sought to have admitted, see Wis. Stat. Rule 904.05(2) ("In cases in which character or a trait of a person is an essential element of a . . . defense, proof may also be made of specific instances of the person's conduct."); McMorris v. State, 58 Wis. 2d 144, 150 & 150 n.11, 205 N.W.2d 559, 562 & 562 n.11 (1973) (characterizing as "consistent" with the then proposed Rule 904.05, the proposition that "where there is a sufficient factual basis to raise the issue of self-defense, and the turbulent and violent character of the victim is an essential element of the defense, proof should be admitted as to both the reputation of the victim and the defendant's personal knowledge of prior relevant conduct of the victim"); Werner v. State, 66 Wis. 2d 736, 744 n.6, 226 N.W.2d 402, 406 n.6 (1975) (specific instances of conduct are not admissible under Rule 904.05(2) "to prove that the victim was the aggressor in a fight"), there is no. evidence that Watkins shot the victim in self-defense. Accordingly, neither the victim's reputation nor specific acts of his alleged violent conduct in the past would have been material. Thus, Watkins was not deprived of his right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (defendant claiming ineffective assistance of counsel must show that his or her defense was prejudiced by the alleged deficiency of the trial lawyer's representation).

3. Sentence.

¶ 35. Although we give great latitude to a trial court's exercise of its sentencing discretion, Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457, 461 (1975), we will overturn a sentence if it is "so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances." Ibid. Given Watkins's concededly exemplary life prior to this tragic shooting, I believe that the sentence is shockingly not "right and proper under the circumstances." Accordingly, I would remand the matter to the trial court for resentencing.

4. Other claims.

¶ 36. In a repeat of his other arguments, Watkins claims that he is entitled to discretionary reversal under Wis. Stat. § 752.35. I disagree. Larding a final catch-all plea for reversal with arguments that have already been rejected adds nothing; "[z]ero plus zero equals zero." Mentek v. State, 71 Wis. 2d 799, 809, 238 N.W.2d 752, 758 (1976).

       The judgment of conviction incorrectly indicates that Watkins! trial was to a jury. On remand, the clerk is instructed to correct the error.

       In his trial testimony, however, Watkins said that Malone grabbed and shook him in three separate episodes after the comments about showing off his muscles but before the gloves were mentioned.

       Inexplicably, the prosecutor, in closing argument, maintained that "[t]he medical examiner told us that the entrance wound was about one inch below the right eye, that there was tattooing around the entrance wound, which would indicate that the shot was from a distance of about eighteen [inches] to two feet when the shot was fired." Defense counsel, however, correctly stated the medical examiner's testimony regarding the firing distance, and the trial court, in its verdict decision, found that Watkins "discharged the weapon within one to three inches of the victim."

       In its brief to this court, the State contended that "accident is not an affirmative defense," but rather, "is merely a denial of intent." At oral argument before this court, however, the State abandoned that position and conceded that accident is an affirmative defense that must be disproved beyond a reasonable doubt to gain a conviction.

       At Watkins' sentencing, the prosecutor even acknowledged that "[t]here certainly is evidence that Mr. Watkins felt that there might be some type of great bodily harm to himself." Neither the prosecutor nor the trial court ever suggested that Watkins' belief was unreasonable.

       Any inconsistencies, however, were either unspecified or relatively slight; for example: whether Malone's aggressiveness preceded Watkins' mention of the gloves; whether Watkins told Detective Antreassian that he (Watkins) had made a big mistake; and whether, as the State maintains in its brief to this court, Watkins, in his statement to Detective Antreassian, "never claimed that Malone grabbed the gun," but "only told Antreassian that Malone grabbed for his gun arm."

       The relationship between Watkins and Malone, by all accounts, was a cooperative one. In fact, even Watkins' laundry chores on the afternoon of the shooting seemed to suggest their compatibility. Watkins testified: "I talked to Glenn, and he had a few whites, and I just had a few whites, so him and I together, we could make up a load. So we combined our whites together, and I got those washed up."


author: WEDEMEYER, P.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Henry T. Skibinski, Defendant-Appellant.
    Court of Appeals

      Nos. 00-1278-CR, 00-1279-CR.

      Submitted on briefs October 6, 2001.

    Decided April 24, 2001.

    2001 WI App 109
    (Also reported in 629 N.W.2d 12.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Karma S. Rodgers of Butler Rodgers Law Offices of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of E. Michael McCann, district attorney, by Benbow P. Cheesman, Jr., assistant district attorney, of Milwaukee.
    Before Wedemeyer, P.J., Schudson and Curley, JJ.
   WEDEMEYER, P.J.

¶ 1. Henry T. Skibinski appeals from two judgments entered after he pled guilty to operating a vehicle while intoxicated, second and third offenses, contrary to Wis. Stat. § 346.63(1) (1997 — 98). Skibinski claims the trial court erred when it interpreted the penalty statutes found in Wis. Stat. §§ 343.307 and 346.65 to permit the trial court to utilize the penalties prescribed for a third offense OWI when it sentenced Skibinski on the second and third offenses. Because the trial court erred in its interpretation of the statutes when it sentenced Skibinski, we reverse both judgments and remand the matter for resentencing consistent with this opinion.

I. BACKGROUND

¶ 2. On August 10,1999, Skibinski was arrested for driving under the influence of an intoxicant. This was his second arrest for OWI within a five-year period. Before this case was resolved, Skibinsky was arrested again on September 15, 1999, for operating a vehicle while under the influence. This was his third arrest within a ten-year period. On December 16,1999, Skibinsky entered guilty pleas on both cases.

¶ 3. The trial court ruled that the legislative scheme for the OWI penalties permitted the trial court to sentence Skibinski as a third offender on both the second and third offenses. The trial court reasoned that the language of Wis. Stat. § 346.65(2) setting forth the graduated penalty scale for violations, coupled with the language found in Wis. Stat. § 343.307(1) & (1)(a), allowed it to count the number of offenses as convictions at the time of sentencing in deciding which penalty applied. The trial court ruled that each of the two charges then pending was subject to the penalties prescribed for a third offense of OWI.

¶ 4. The trial court sentenced Skibinski to seven months in the House of Correction, a $600 fine, and a thirty-six-month license revocation for the August 10, 1999 offense; and twelve months in the House of Correction, consecutive, a $600 fine, and a thirty-six-month license revocation for the September 15, 1999 offense. The penalty for a second offense of OWI reads: "Any person violating s. 346.63(1)... shall be fined not less than $300 nor more than $1,000 and imprisoned for not less than 5 days nor more than 6 months." WlS. Stat. § 346.65(2)(b) (emphasis added). The penalty for a third offense of OWI reads: "Any person violating s. 346.63(1)... shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 30 days nor more than one year in the county jail." WlS. Stat. § 346.63(2)(c). The trial court's sentence on the August 10th OWI exceeded the maximum penalty permitted under WlS. Stat. § 346.65(2)(b) for a second offense. Skibinski appeals.

II. DISCUSSION

¶ 5. Skibinski argues that the trial court erred in its interpretation of Wis. Stat. § 363.307, permitting each offense to be subject to the penalty provisions provided for a third offense. Skibinski argues that the trial court's reasoning is incorrect, unconstitutional, and frustrates the legislature's decision to graduate the penalties for operating while intoxicated for repeat offenders. The State concedes that the August 10,1999 offense should not have been sentenced as a third offense.

¶ 6. The standard of review of a question concerning the interpretation of a statute is de novo. State v. Irish, 210 Wis. 2d 107, 110, 565 N.W.2d 161 (Ct. App. 1997). A reviewing court will reject an unreasonable construction of a statute. Currie v. Schwalbach, 132 Wis. 2d 29, 42, 390 N.W.2d 575 (Ct. App. 1986), aff'd, 139 Wis. 2d 544, 407 N.W.2d 862 (1987). The goal of statutory interpretation is to determine and give effect to the intent of the legislature. Caldwell v. Percy, 105 Wis. 2d 354, 361, 314 N.W.2d 135 (Ct. App. 1981). Statutes relating to the same subject matter should be read together and harmonized if possible. City of Milwaukee v. Milwaukee County, 27 Wis. 2d 53, 56, 133 N.W.2d 393 (1965).

¶ 7. The trial court reasoned that because Wis. Stat. § 346.65(1) states that the offender shall be punished with the number of convictions, revocations and suspensions counted under WlS. Stat. § 343.307(1) at the time of sentencing, both the August 10th and the September 19th offenses could be counted. This resulted in the August 10th offense being subject to penalties for a third offense, even though it was only Skibinski's second offense. The trial court indicated that "[t]he legislature did not say that a person would have their [sic] conviction counted only if they [sic] had been sentenced on it."

¶ 8. The trial court's interpretation is flawed for several reasons. First, when a defendant has two or more prior convictions, the convictions must be proven as an element of the offense, and are predicate to conviction of the graduated offenses. State v. Alexander, 214 Wis. 2d 628, 652, 571 N.W.2d 662 (1997). If a defendant does not stipulate to any prior convictions, the State must prove beyond a reasonable doubt that the defendant was convicted of two or more prior convictions. Here, the record reflects that when Skibinski pled guilty to the August 10th OWI, he admitted that he had one prior OWI conviction. Thus, the record supports the fact that the August 10th OWI was his second offense. He did not admit that he had an additional unspecified OWI offense, nor could he have done so. The August 10th OWI cannot be treated as a third offense because the State did not and could not prove that Skibinski had two or more prior convictions at the time of the August 10th OWI. At the time he pled guilty to the August 10th OWI, Skibinski had only one prior OWI conviction. Thus, the trial court erred when it counted the September 19th OWI together with the prior, conviction to make the August 10th OWI a third offense.

¶ 9. Second, a judgment of conviction includes the offense, the plea, and the sentence. Wis. Stat. § 972.13(3) ("A judgment of conviction shall set forth the plea, the verdict or finding, the adjudication and sentence."). The trial court based its decision on its belief that an OWI conviction, to be utilized in enhancing the penalties for OWI, need only consist of an accepted plea of guilty and does not require a sentence. The trial court's interpretation is contrary to § 972.13(3) and case law addressing the graduated penalties. In State v. Banks, 105 Wis. 2d 32, 313 N.W.2d 67 (1981), a court commissioner sentenced Banks as a first-time OWI offender, and later learned that it was Banks's second such offense within five years. Id. at 36. The court commissioner vacated the improperly charged first offense and the state re-issued a criminal charge of second offense OWI. Id. Presented with the new charge, the trial court ruled that it did not have jurisdiction over this re-issued charge. Id. at 36-37. Reversing the trial court, the supreme court held that this situation did not result in double jeopardy. Id. at 44. Further, the supreme court observed that the state was mandated to charge Banks as a second offender under the wording of the relevant penalty statute. Id. at 40. The supreme court also distinguished the penalty enhancers found in the OWI penalty section from those found in the general repeater statute and, in doing so, the supreme court determined that the OWI penalty enhancers did not require that the underlying conviction for the first charge occur before the state could properly charge Banks as a second offender. Id. at 44-50.

¶ 10. In the instant case, the question posed is whether the trial court can accept guilty pleas to a second and third offense OWI, and then apply the increased penalties of third offense. OWI to both charges at sentencing. Banks supports Skibinski's contention. Banks emphasizes that there must he a conviction before the graduated penalties can be used. Id. at 44-50. A conviction under Wis. Stat. § 343.307 must meet the requirements of Wis. Stat. § 972.13(3). In order to be a valid judgment of conviction, a sentence must have been imposed. Therefore, under Banks, before a judgment of conviction can properly be used to justify an OWI penalty enhancer, the offender must have been sentenced. Thus, Skibinski could not be sentenced as a third offender for his second offense.

¶ 11. Third, Banks also supports Skibinski's argument that the trial court's interpretation is unconstitutional on vagueness grounds. The "void for vagueness" doctrine rests upon the constitutional principle that procedural due process requires fair notice and proper standards for adjudication. State v. Driscoll, 53 Wis. 2d 699, 701-02, 193 N.W.2d 851 (1972). The test for vagueness of a criminal statute is whether it gives reasonable notice of the prohibited conduct and its penalties. Id. at 701. Banks held that the OWI penalty enhancer statute only passed constitutional muster and was not void for vagueness because the express language of Wis. Stat. § 346.65(2)(a), providing that any person violating Wis. STAT. § 346.63(1) shall be fined or imprisoned if the total of license revocations and convictions for drunken driving equals two within a five-year period, gives ample notice to a driver who wishes to avoid criminal penalties that a second OWI offense subjects a driver to criminal penalties. Banks, 105 Wis. 2d at 50-51.

¶ 12. Thus, applying the vagueness standard to Wis. Stat. § 346.65(2)(a), it is clear that the statute satisfies the due process requirements when it gives ample notice of the prohibited conduct and penalties. See Banks, 105 Wis. 2d at 50-51. We conclude that the trial court's interpretation runs afoul of the guaranteed constitutional protections because such interpretation would permit a sentencing court to modify the possible penalties for a crime when committed by the subsequent conduct of the offender. This would violate the constitutional due process notice requirements.

¶ 13. Finally, the trial court's interpretation frustrates the legislature's mandate that a second and any subsequent offenses be subject to certain graduated penalties prescribed by the legislature. "This court has recognized that the purpose of general repeater statutes is to increase the punishment of persons who fail to learn to respect the law after suffering the initial penalties and embarrassment of conviction." Id. at 49. The trial court's interpretation would do violence to this legislative directive. See State v. Machner, 101 Wis. 2d 79, 81, 303 N.W.2d 633 (1981) ("[I]t is the legislative province to prescribe the punishment for a particular crime and the judicial province to impose that punishment.").

¶ 14. Accordingly, these cases are remanded for resentencing in accordance with the graduated penalty provisions listed in Wis. Stat. § 346.65. Because the trial court sentenced Skibinski thinking that the penalties for the third offense OWI applied to both counts, resentencing must occur in both cases. The August 10th conviction must be sentenced as a second offense and the September 19th conviction must be sentenced as a third offense.

By the Court. — Judgments reversed and cause remanded.

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

       Wisconsin Stat. § 346.65(2) provides:
      (2) Any person violating s. 346.63 (1):
      (a) Shall forfeit not less than $150 nor more than $300, except as provided in pars, (b) to (f).
      (b) Except as provided in par. (f), shall be fined not less than $300 nor more than $1,000 and imprisoned for not less than 5 days nor more than 6 months if the total number of suspensions, revocations and convictions counted under s. 343.307 (1) equals 2 within a 10-year period. Suspensions, revocations or convictions arising out of.the same incident or occurrence shall be counted as one.

        io) Except as provided in par. (f), shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 30 days nor more than one year in the county jail if the total number of suspensions, revocations and convictions counted under s. 343.307 (1) equals 3, except that suspensions, revocations or convictions arising out of the same incident or occurrence shall be counted as one.
      (d) Except as provided in par. (f), shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 60 days nor more than one year in the county jail if the total number of suspensions, revocations and convictions counted under s. 343.307 (1) equals 4, except that suspensions, revocations or convictions arising out of the same incident or occurrence shall be counted as one.
      (e) Except as provided in par. (f), shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 6 months nor more than 5 years if the toted number of suspensions, revocations and convictions counted under s. 343.307 (1) equals 5 or more, except that suspensions, revocations or convictions arising out of the same incident or occurrence shall be counted as one.
      (f) If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under s. 346.63 (1), the applicable minimum and maximum forfeitures, fines or imprisonment under par. (a), (b), (c), (d) or (e) for the conviction are doubled. An offense under s. 346.63 (1) that subjects a person to a penalty under par. (c), (d) or (e) when there is a minor passenger under 16 years of age in the motor vehicle is a felony and the place of imprisonment shall be determined under s. 973.02.

       Wisconsin Stat. § 343.307(1) & (l)(a), provides:
      Prior convictions, suspensions or revocations to be counted as offenses. (1) The court shall count the following to determine the length of a revocation or suspension under s. 343.30 (lq) (b) and to determine the penalty under s. 346.65 (2):
      (1) The court shall count the following to determine the length of a revocation under s. 343.30 (lq) (b) and to determine the penalty under s. 346.65 (2):

        (a) Convictions for violations under s. 346.63 (1), or a local ordinance in conformity with that section.

       The trial court advised the parties that it believed this was the correct way to interpret the graduated penalties in the OWI statutes. The trial court further noted that its reasoning had been rejected in a one-judge appeal decided by this court on August 10, 1999. See State v. Haushalter, Nos. 99-0387, 99-0388, 99-0389, unpublished slip op. (Wis. Ct. App. Aug. 10, 1999). Despite this court's decision reversing the trial court's ruling on the same issue presented here, the trial court stated that it would continue to so rule because there was no published case declaring that the trial court's interpretation was erroneous. The trial court even went so far as to suggest that if a three-judge panel from this court reviewed the issue, the panel would agree with the trial court's reasoning rather than the reasoning set forth in Haushalter. The trial court was incorrect. Having now considered the issue in a three-judge opinion, this court • concurs with, and borrows liberally from, the reasoning set forth in the one-judge opinion.


author: CANE, C.J.

text:
    TFJ Nominee Trust , Plaintiff-Respondent, v. State of Wisconsin Department of Transportation, Defendant-Appellant.
    Court of Appeals

      No. 00-2099.

      Submitted on briefs February 27, 2001.

    Decided April 24, 2001.

    2001 WI App 116
    (Also reported in 629 N.W.2d 57.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and Pamela Magee, assistant attorney general.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Matthew A. Biegert of Doar, Drill & Skow, S.C. of New Richmond.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.

      Petition to review denied.

   CANE, C.J.

¶ 1. The State of Wisconsin Department of Transportation (DOT) appeals from orders permanently enjoining the DOT from closing the present connection of Lind Road to Highway 35 as part of an intersection reconstruction project. The orders were issued after the TFJ Nominee Trust, acting pursuant to WlS. STAT. § 32.05(5), challenged the DOT's right to condemn a portion of its property and its alleged access rights to Lind Road. In addition to enjoining the closure and relocation of Lind Road, the orders also invalidate that portion of the condemnation affecting the trust's alleged access rights to Lind Road.

¶ 2. The DOT argues that: (1) the trust's WlS. Stat. § 32.05(5) action is barred because the trust has retained an unnegotiated $18,000 condemnation award check, rather than returning it to the DOT; and (2) even if the trust's action is not barred, such action does not authorize a challenge to the DOT's decision to relocate Lind Road. We conclude that the trust is not barred from bringing a § 32.05(5) action. However, we conclude that this action is not the appropriate procedure to determine whether the trust has access rights to present Lind Road, whether they are being impeded, whether such a taking would be compensable and, if so, how much should be awarded as compensation. We also conclude that there is no basis to set aside the DOT's determination that it is necessary to close and relocate present Lind Road. Accordingly, we reverse the trial court's orders setting aside any part of the condemnation and enjoining the DOT from relocating Lind Road.

Background

¶ 3. In 1999 the trust purchased three parcels located on the southeast corner of the intersection of State Trunk Highways 35 (running north and south) and 70 (running east and west). The smallest, parcel 2, is .625 acres and comprises the majority of a four-sided piece of property that is shaped like a right-angle triangle with the top sheared off. The right-angle corner of the property is bordered on the west by Highway 35 and on the south by the present Lind Road, which currently allows direct access to Highway 35. Old Lind Road, running northwest, borders the property on the east.

¶ 4. The trust's remaining parcels, comprising over thirty acres, are located due east of parcel 2 on the other side of old Lind Road. The State has not sought to acquire those parcels.

¶ 5. The DOT determined that the intersection of Highways 35 and 70 required widening and reconfiguration, due to a projected increase in traffic. The DOT's design required the DOT to acquire property along the frontage on both sides of Highway 35, including .19 acres of parcel 2. The design also included closing the present Lind Road's access to Highway 35 and creating a new Lind Road, which would run east and west approximately 400 feet south of its current location.

¶ 6. The DOT offered to purchase the frontage land it required from the trust, but the trust refused. The DOT commenced condemnation proceedings pursuant to Wis. Stat. ch. 32. When the trust did not accept the DOT's jurisdictional offer to purchase, see Wis. Stat. § 32.05(3), the DOT awarded the trust $18,000 for the portion of parcel 2 required for the construction. See Wis. Stat. § 32.05(7).

¶ 7. The trust filed this action pursuant to WlS. Stat. § 32.05(5), contesting the DOT's right to condemn its property. The trust subsequently moved for an injunction prohibiting the DOT from closing present Lind Road.

¶ 8. The trial court heard testimony at both a preliminary injunction hearing and a court trial. Although the trust did not pursue its initial challenge to the condemnation of .19 acres of parcel 2, it maintained its quest to prevent the closing of the present Lind Road. Ultimately, the trial court granted the trust's request for a permanent injunction. The court's written order also stated that the DOT's "removal of parcel 2's access to the present Lind Road/Highway 35 connection had the effect of a condemnation without compensation and to that extent the action of DOT is overturned." The trial court denied the DOT's subsequent motion for reconsideration. This appeal followed.

Legal standards

¶ 9. Resolution of this appeal requires interpretation of WlS. Stat. § 32.05, a question of law we review de novo. See Miesen v. DOT, 226 Wis. 2d 298, 304, 594 N.W.2d 821 (Ct. App. 1999). In determining a statute's meaning, our goal is to ascertain the legislature's intent. To make this determination, we first look to the statute's plain language, and if the statute is plain on its face, our inquiry ends. If the statute is ambiguous, however, we may look to the statute's scope, subject matter, and object to ascertain the legislature's intent. Id. A statute is ambiguous if reasonably well-informed persons could understand it in more than one way. Id. at 304-05. Additionally, the intent of a statute's subsection must be derived from the act as a whole. Id. at 305.

¶ 10. Rules of construction for condemnation statutes further guide our interpretation. Id. Because the power of eminent domain under Wis. Stat. ch. 32 is extraordinary, we strictly construe the condemnor's power under Wis. Stat. § 32.05, while liberally construing provisions favoring the landowner, including available remedies and compensation. Id.

Discussion

I. Failure to return an unnegotiated award check

¶ 11. The DOT argues that the trust is barred from contesting the DOT's right to condemn its property because the trust has retained the unnegotiated award check that the DOT sent to it. The DOT cites Wis. Stat. § 32.05(3)(h), which requires that the jurisdictional offer include a notice

[s]tating that if the owner has not accepted such offer as provided in sub. (6) the owner has 40 days from the date of completion of service upon the owner of the offer to commence a court action to contest the right of condemnation as provided in sub. (5); provided that the acceptance and retention of any compensation resulting from an award made prior to the commencement of such an action shall he an absolute bar to such action. [] (Emphasis added.)

The DOT contends that because the trust has not returned the check that the trust received with the award of damage documents, the trust has accepted and retained compensation as defined in § 32.05(3)(h).

¶ 12. In response, the trust argues that retention of an unsolicited check, absent its negotiation, does not bar an action under WlS. Stat. § 32.05. The trial court agreed with the trust, concluding that the suit was not barred because the trust did not cash the check and the money remained in the State's treasury.

¶ 13. At issue is the meaning of the phrase "acceptance and retention of any compensation." Neither the DOT nor the trust has provided this court with any authority to guide our interpretation other than the words of the statute and various dictionary definitions. Additionally, our independent research reveals no previous case interpreting WlS. Stat. § 32.05(3)(h).

¶ 14. We must first determine whether the phrase is ambiguous. On one hand, a reasonable person could interpret the words "acceptance ... of compensation" as requiring negotiation of the award check. Conversely, Wisconsin courts interpreting the term "acceptance" with respect to contracts have held that one can accept an offer by retaining a check for an unreasonable length of time. See Hoffman v. Ralston Purina Co., 86 Wis. 2d 445, 448, 273 N.W.2d 214 (1979). Applying this same reasoning, one could conclude that a landowner is barred under Wis. Stat. § 32.05(3)(h) when the landowner holds a check for an unreasonable period of time. Because reasonably well-informed persons could understand this statutory phrase in more than one way, we conclude the phrase is ambiguous. See Miesen, 226 Wis. 2d at 304-05.

¶ 15. Having concluded that the phrase "acceptance and retention of any compensation" is ambiguous, we turn to extrinsic aids such as the legislative history, scope, context and purpose of the statute to determine legislative intent. See Racine Educ. Ass'n v. WERC, 2000 WI App 149, ¶ 50, 238 Wis. 2d 33, 616 N.W.2d 504. Wisconsin Stat. § 32.05(3)(h) was created during the major revision of condemnation procedures under Wis. Stat. ch. 32 that was accomplished by ch. 639, Laws of 1959. See Falkner v. NSP, 75 Wis. 2d 116, 120, 248 N.W.2d 885 (1977). We have examined the legislative drafting records for § 32.05(3)(h) and have located no explanation for the legislature's use of the phrase "acceptance and retention of any compensation" as opposed to "receipt," "acceptance" or "retention." Consequently, the legislative history of § 32.05(3)(h) does not aid us in our interpretation of the phrase.

¶ 16. The rules of interpretation for Wis. STAT. ch. 32 are more helpful. Despite the oft-quoted maxim that condemnation statutes must be strictly construed because they are in derogation of common law, our supreme court has held that statutory provisions in favor of the owner, such as those that regulate the compensation to be paid, are to be afforded liberal construction. See Pulvermacher Enters, v. DOT, 166 Wis. 2d 234, 238, 479 N.W.2d 217 (Ct. App. 1991). Because Wis. Stat. § 32.05(3)(h) concerns the remedies available to the owner, we liberally construe the statute.

¶ 17. This liberal construction leads us to conclude that mere retention of the unnegotiated award check should not bar the landowner's pursuit of a remedy under Wis. Stat. § 32.05(5). Accordingly, we conclude that the phrase "acceptance and retention of any compensation" requires that the landowner negotiate the check and retain the check proceeds before the owner can be barred from contesting the condemnation under § 32.05(5).

¶ 18. Pursuant to our construction, a landowner who. holds rather than cashes an award check is not barred from suit. Additionally, a landowner who negotiates the check but returns the compensation to the DOT before filing suit may still pursue an action contesting the DOT's right to condemn the property. This second scenario, which gives effect to the word "retention," is consistent with the fundamental rule of statutory interpretation that where possible, statutes are to be construed in a manner such that no word is rendered surplusage and every word is given effect. See Donaldson v. State, 93 Wis. 2d 306, 315, 286 N.W.2d 817 (1980).

¶ 19. Because the trust never negotiated the check, it has not accepted and retained any compensation under Wis. Stat. § 35.05(3)(h). Accordingly, the trust's § 35.05(5) action is not barred. See Wis. Stat. § 35.05(3)(h).

II. Review of the orders for injunctive relief

¶ 20. The trust's amended complaint challenged the DOT's right to condemn the necessary portion of parcel 2 on three bases: (1) the DOT's appraisal was inadequate; (2) the DOT did not engage in good faith negotiation with the trust; and (3) the condemnation was unnecessary and was an erroneous exercise of the DOT's discretion. The issue debated at the subsequent hearings, however, was not the DOT's right to condemn a portion of parcel 2. In a written opinion the trial court specifically noted: "[The trust] does not contest the authority of DOT to condemn parcel 2." Rather, the court explained:

[The trust] challenges the DOT finding of no value for loss of the potential access rights of parcel 2 onto present Lind Road which [the trust] alleges affects the access rights of parcels 1 and 3. [The trust] further challenges the authority of DOT to condemn present Lind Road and move it to a new location as being unnecessary to accomplish the highway project.

¶ 21. The trial court concluded that the DOT's closing of present Lind Road had the effect of a condemnation without compensation and that it was unnecessary to close present Lind Road. Accordingly, the trial court granted a permanent injunction enjoining the DOT from moving present Lind Road. The DOT challenges the trial court's conclusions and orders.

A. Challenge to condemnation procedure

¶ 22. We first address the trial court's conclusion that the condemnation of the trust's alleged access rights was procedurally defective. We conclude that the condemnation was not procedurally defective and, therefore, reverse the trial court's order invalidating part of the condemnation of parcel 2.

¶ 23. The trust challenged the condemnation procedure on grounds that the DOT found there was no value for the trust's alleged loss of access rights to present Lind Road. The trust argues on appeal that the DOT

did one of two things: (1) it failed to consider, appraise or evaluate the rights in any fashion and, as such did not include them in its jurisdictional offer. As such, those rights have not validly been condemned and the DOT cannot now simply take the access. The other alternative is (2) that the DOT evaluated the loss of those access rights as having no value.

¶ 24. The trial court addressed this issue in its written opinion: "The Court finds DOT failed to follow the procedure requiring consideration of access rights to parcels 1 and 3. The Court finds DOT considered access rights to parcel 2 but abused its discretion in finding.no damages for loss of access rights."

¶ 25. It is unclear whether the trust is challenging the trial court's findings. We conclude that regardless whether the DOT failed to consider the access rights or evaluated the rights as having no value, the condemnation of parcel 2 — the subject of this action — is procedurally valid. If the trust claims the DOT failed to properly condemn the potential loss of access rights (e.g., by not filing a jurisdictional offer for the rights), or that its rights to parcels 1 and 3 have been affected by the closing of present Lind Road, then the trust's remedy is to file an action for inverse condemnation. See Vivid, Inc. v. Fiedler, 174 Wis. 2d 142, 147, 497 N.W.2d 153 (Ct. App. 1993) (Wis. Stat. § 32.10 permits the owner of property which has been occupied by a person having the power of condemnation to institute inverse condemnation proceedings), aff'd as modified, 182 Wis. 2d 71, 512 N.W.2d 771 (1994).

¶ 26. If instead the trust believes the DOT considered the trust's alleged access rights as part of its appraisal of parcel 2, but erroneously valued the access rights at zero dollars, then the trust's remedy is to seek additional compensation under Wis. Stat. § 32.05(9). See DOT v. Peterson, 226 Wis. 2d 623, 627, 594 N.W.2d 765 (1999) (property owners who have had their property condemned under Wis. Stat. ch. 32 may appeal from the award of damages given by the condemning entity by following the "complete and exclusive" procedures set forth in that chapter). In any event the remedy is not to challenge the right to condemn a portion of parcel 2. We therefore reverse the trial court's order invalidating any part of the condemnation of parcel 2.

B. Challenge to the necessity of closing present Lind Road

¶ 27. The next issue is the trust's challenge to the necessity of closing present Lind Road. We conclude that even if the closing of present Lind Road constitutes a taking by eminent domain, and even if the trust could properly challenge the road's closing in this action, we do not agree that the DOT erroneously exercised its discretion in deciding to close the road. Thus, for purposes of this appeal, we will assume that the trust could properly challenge the road's closing in this action.

1. Legal standards governing necessity of taking

¶ 28. The question whether it is necessary to take particular property for public use has been held to be inherently a matter for the legislature. Falkner, 75 Wis. 2d at 131. The necessity, expediency, or propriety of exercising the power of eminent domain, and the extent and manner of its exercise, are questions of general policy, and belong to the legislative department of the government. Id. The legislature of course may delegate the power of eminent domain, and usually does so. Id.

In determining necessity neither the legislature nor its delegate is limited to takings that are absolutely or indispensably necessary. "Necessary," in this context, has been construed to mean reasonably necessary, reasonably requisite and proper for the accomplishment of the public purpose for which the property is sought; necessary does not mean absolutely imperative.

Id. at 132.

¶ 29. Notwithstanding its legislative character, the determination of necessity by the legislature or by its delegate is not completely immune from judicial review. See id. However, the scope of review is narrow. The role of courts is not to weigh the evidence and decide if condemnation is necessary. Grundwald v. Community Dev. Auth., 202 Wis. 2d 471, 487—88, 551 N.W.2d 36 (Ct. App. 1996). Rather, the court's role is to decide if the condemning authority's conclusion was based on reasonable grounds and not the result of fraud, bad faith, or a gross abuse of discretion. Id. at 488. We review the DOT's determination without deference to the trial court's conclusion that closing the present Lind Road access was unnecessary.

2. Review of the DOT's necessity determination

¶ 30. The DOT's engineer testified that the DOT made the decision to close the present Lind Road access to Highway 35 and move it farther south from the intersection of Highways 35 and 70 for safety reasons. She explained that the general standard is to not allow access points within 2,000 feet of a major intersection. The present Lind Road access to Highway 35 is located approximately 800 feet south of the intersection, and the proposed new Lind Road access would be approximately 400 feet further south.

¶31. The engineer testified that although an access road located 1,200 feet from the intersection is still closer than is generally recommended, the DOT concluded that it could safely deviate from the 2,000-foot standard and allow Lind Road to be 1,200 feet from the intersection. This decision was based in part on considerations for the businesses located near the intersection. The engineer explained: "We felt that the damages to the businesses would far outweigh what the safety risks were there." She also stated that in her opinion, leaving Lind Road in its present location "significantly increases the danger to the traveling public."

¶ 32. We cannot conclude that the DOT erroneously exercised its discretion in determining the necessity of closing present Lind Road. The DOT provided a reasonable explanation for the decision: maintaining the present Lind Road access would significantly increase the danger to the traveling public. The DOT's need to alleviate that danger by closing and moving Lind Road 400 feet further south provided a reasonable ground for its decision. Just as this court will affirm a trial court's appropriate exercise of discretion even though we may ourselves disagree with the decision, we will not disturb the DOT's determination of necessity in the absence of a "gross abuse of discretion." See Falkner, 75 Wis. 2d at 132.

Summary

¶ 33. We conclude that the trust's challenge to the right to condemn a portion of parcel 2 is not barred even though the trust has retained the unnegotiated award check. However, we conclude that this action is not the appropriate procedure to determine whether the trust has access rights to present Lind Road, whether they are being impeded, whether such a taking would be compensable and, if so, how much should be awarded as compensation. We also conclude that there is no basis to set aside the DOT's determination that it is necessary to close and relocate present Lind Road. Accordingly, we reverse the trial court's orders setting aside any part of the condemnation and enjoining the DOT from closing and relocating present Lind Road.

By the Court. — Orders reversed.

      All references to the Wisconsin Statutes are to the 1999-2000 version.

       The designations north, south, east and west are approximate directions.

       There are three roads that bear the name "Lind Road." For purposes of this opinion, we will identify them as "old Lind Road," "present Lind Road" and "new Lind Road."

       Wisconsin Stat. § 32.05(5) provides in relevant part:
      Court action to contest Right of condemnation. If an owner desires to contest the right of the condemnor to condemn the property described in the jurisdictional offer, for any reason other than that the amount of compensation offered is inadequate, the owner may within 40 days . . . commence an action in the circuit court of the county wherein the property is located, naming the condemnor as defendant. Such action shall be the only manner in which any issue other than the amount of just compensation, or other than proceedings to perfect title under ss. 32.11 and 32.12, may be raised pertaining to the condemnation of the property described in the jurisdictional offer. ... If the action is not commenced within the time limited the owner or other person having any interest in the property shall be barred from raising any such objection in any other manner.

       The trial court's orders are silent as to the status of the remainder of the condemned portion of parcel 2. However, because we reverse the trial court's orders and there are no other orders overturning the condemnation, it appears that the DOT's condemnation remains valid.

      The italicized clause appears only in WlS. Stat. § 32.05 (3)(h), the statute that explains the notice to landowners that must be included in jurisdictional offers. Wisconsin Stat. § 32.05(5), the statute that provides the actual procedures for contesting condemnations, is silent with respect to the acceptance and retention of compensation.

       Since its creation, Wis. Stat. § 32.05(3)(h) has been amended only to make the statute gender-neutral.

       The landowner is still bound by the strict time limits of Wis. Stat. § 32.05(5), which require the owner to file suit within 40 days.

       Indeed, the record is unclear whether the trust plans to accept the DOT's compensation award as payment for the condemned portion of parcel 2 or whether it intends to seek additional compensation pursuant to Wis. Stat. § 32.05(9) — (12).

       The DOT argues that if closing the present Lind Road is a taking of property, it is a taking by police power rather than by eminent domain. See Sippel v. City of St. Francis, 164 Wis. 2d 527, 533, 476 N.W.2d 579 (Ct. App. 1991) (A taking by eminent domain gives rise to an obligation to compensate the landowner, but a taking by police power involves the power of government to adversely affect property interests without compensation). For purposes of this appeal, we have accepted the trust's assertion that the closing of present Lind Road and the resulting loss of the trust’s access rights constitute a taking by eminent domain. If, however, the trust later pursues compensation for its loss of access rights, we do not intend this opinion to bar the DOT's litigation of the issue whether the taking is by eminent domain or by police power.

       The trust does not argue that the DOT's determination of necessity was made in bad faith or fraudulently, the other two bases on which to challenge a determination. See Falkner v. NSP, 75 Wis. 2d 116, 132, 248 N.W.2d 885 (1977).