author: CANE, C.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Russell L. Dibble, Defendant-Appellant.

    Court of Appeals

      No. 02-0538-CR.

      Submitted on briefs June 18, 2002.

    Decided July 17, 2002.

    2002 WI App 219
    (Also reported in 650 N.W.2d 908.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven P Weiss, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and David J. Becker, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 10-21-02.

   CANE, C.J.

¶ 1. Russell Dibble appeals a judgment of conviction for two counts of aggravated battery, contrary to Wis. Stat. § 940.19(5), and an order denying postconviction relief. The State originally charged Dibble with two counts of aggravated battery and two counts of first-degree recklessly endangering safety, contrary to Wis. Stat. § 941.30(1). Dibble pled guilty to the two battery charges and the endangering safety counts were dismissed. On appeal, Dibble argues his plea was illusory because first-degree recklessly endangering safety is a lesser included offense of aggravated battery. We determine first-degree recklessly endangering safety is not a lesser included offense of aggravated battery and therefore affirm the judgment and order.

BACKGROUND

¶ 2. On August 3, 2000, Dibble attacked his estranged wife, Georgia, and her friend, Charles Voight, with a large wooden club. Earlier that day, Dibble had followed Georgia and Voight from Wausau to Voight's home in Mercer. Upon arriving in Mercer, Dibble repeatedly drove past Voight's house. That evening, Georgia and Voight were sitting outside when Dibble approached them with the club. He hit Georgia approximately five times on the head and upper body. He then attacked Voight, hitting him three times on the head, and then left the area. After Voight's neighbor telephoned for help, Georgia and Voight were taken to the hospital and treated.

¶ 3. Following Dibble's arrest the next day, he was charged with two counts each of aggravated battery and first-degree recklessly endangering safety. Pursuant to a plea agreement, Dibble pled guilty to the two counts of aggravated battery and the State dismissed the endangering safety charges. On the first count, the court sentenced Dibble to ten years in prison and five years of extended supervision and imposed and stayed a five-year sentence on the second count. The court also gave Dibble ten years of probation.

¶ 4. After sentencing, Dibble brought a motion for postconviction relief, arguing his plea was illusory because the reckless endangerment charge was a lesser included offense of aggravated battery. Dibble argued because the State could not have convicted him of both of these crimes, he gained nothing from his plea bargain and therefore his plea was not made knowingly, voluntarily and intelligently. The court denied Dibble's motion and he appeals.

DISCUSSION

¶ 5. A plea to a legal impossibility renders the plea an uninformed one. State v. Woods, 173 Wis. 2d 129, 140, 496 N.W.2d 144 (Ct. App. 1992). Both the United States and Wisconsin Constitutions prohibit multiple punishments for the same offense. U.S. Const. amend. V; Wis. Const. art. I, § 8. When a court imposes multiple punishments for crimes arising from the same criminal act, the constitutionality of these punishments depends on whether the state legislature intended there be multiple punishments. State v. Gordon, 111 Wis. 2d 133, 137, 330 N.W.2d 564 (1983). We presume the legislature intended to allow multiple punishments if each of the charges in question are not lesser included offenses of each other. State v. Sauceda, 168 Wis. 2d 486, 495, 485 N.W.2d 1 (1992). We rely primarily on Wis. Stat. § 939.66 to determine whether the legislature intended multiple punishments. State v. Eastman, 185 Wis. 2d 405, 411, 518 N.W.2d 257 (Ct. App. 1994). In addition, we may also determine the legislature's intent from the statutory language, legislative history, the nature of the proscribed conduct and the appropriateness of multiple punishments. Id. at 414.

¶ 6. Dibble makes two arguments why first-degree recklessly endangering safety under Wis. Stat. § 941.30(1) is a lesser included offense of aggravated battery under Wis. Stat. § 940.19(5). His first, we believe, is implicitly based on Wis. Stat. § 939.66(1), which defines a lesser included offense as "a crime which does not require proof of any fact in addition to those which must be proved for the crime charged." This is a codification of the "elements-only" test created in Blockburger v. United States, 284 U.S. 299 (1932). Under this test, an offense is lesser included only if all of its statutory elements can be proved without proof of any fact or element in addition to those that must be proved for the greater offense. State v. Carrington, 134 Wis. 2d 260, 265, 397 N.W.2d 484 (1986). In applying this test, our inquiry is limited to the statutory elements only, not the specific facts of the case. Id. at 264.

¶ 7. Dibble argues the elements of first-degree recklessly endangering safety are subsumed in the elements of aggravated battery, or, put another way, that a person who commits aggravated battery necessarily commits first-degree recklessly endangering safety. Aggravated battery under Wis. Stat. § 940.19(5) has two elements: (1) causing great bodily harm (2) with the intent to cause great bodily harm or substantial bodily harm. See Wis JI — Criminal 1225. First-degree recklessly endangering safety under Wis. Stat. § 941.30(1) has three elements: (1) endangering safety (2) by reckless conduct (3) under circumstances which show utter disregard for human life. See Wis JI — Criminal 1345. Dibble argues the act of endangering safety is subsumed under causing great bodily harm, and acting recklessly while showing utter disregard for human life is included in intending to cause great or substantial bodily harm.

¶ 8. In support of his argument, Dibble relies on Hawthorne v. State, 99 Wis. 2d 673, 299 N.W.2d 866 (1981), and State v. Weeks, 165 Wis. 2d 200, 477 N.W.2d 642 (Ct. App. 1991). In Hawthorne, our supreme court determined endangering safety by conduct regardless of life is a lesser included offense of first-degree murder. Hawthorne, 99 Wis. 2d at 682. The court said conduct evincing a depraved mind regardless of human life, the mental element of endangering safety at the time, is present whenever someone has the intent to take another's life, the mental element of then-first-degree murder. Id. In addition, the court said the act of endangering safety always occurrs when a person attempts to kill another. Id. In 1987, the legislature replaced the phrase "evincing a depraved mind, regardless of human life," to "show utter disregard for human life." State v. Edmunds, 229 Wis. 2d 67, 75-76, 598 N.W.2d 290 (Ct. App. 1999). In Weeks, we determined this analysis survived the modification of the criminal code, and the new first-degree recklessly endangering safety is a lesser included offense of the new first-degree intentional homicide. Weeks, 165 Wis. 2d at 205-06.

¶ 9. Essentially, Dibble is arguing it is impossible for a person to commit aggravated battery without also engaging in first-degree recklessly endangering safety. On its face, this contention has a certain appeal. The "great bodily harm" required by Wis. Stat. § 940.19(5) is defined as "bodily injury which creates a substantial risk of death, or which causes a serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury." Wis. Stat. § 939.22(14). It is tempting to say anyone who acts with intent to cause these types of injuries is acting without regard for human life. However, a closer examination shows the legislature did not intend first-degree recklessly endangering safety to be a lesser included offense of aggravated battery.

¶ 10. Initially, we note there is a considerable overlap between Wis. Stat. §§ 940.19(5) and 941.30(1). " 'Criminal recklessness' means that the actor creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk." Wis. Stat. § 939.24(1). If this definition is inserted into § 941.30(1), then the crime could be fairly described as endangering another's safety by creating an unreasonable and substantial risk of death or great bodily harm under circumstances which show an utter disregard for human life. Aggravated battery under § 940.19(5) involves causing great bodily harm, which by definition can include injuries presenting a substantial risk of death. Wis. Stat. § 939.22(14). The act required for a violation of § 941.30(1) is arguably a lesser included one of the act required under § 940.19(5).

¶ 11. Aggravated battery and first-degree recklessly endangering safety differ, however, in their remaining elements, and this is what ultimately disproves Dibble's argument. Battery requires criminal intent, and endangering safety requires criminal recklessness while showing utter disregard for human life. A crime is a lesser included offense if it is the same crime as the greater one except that the lesser offense requires recklessness and the greater crime requires criminal intent. Wis. Stat. § 939.66(3). In order for this section to apply, however, the crimes must otherwise be the same, which is not the case here. Nothing in the aggravated battery statute parallels the "utter disregard" element in first-degree recklessly endangering safety.

¶ 12. Our conclusion is supported by our decision in Eastman. There, we held first-degree reckless injury under Wis. Stat. § 941.23(1) (1991-92) was not a lesser included offense of aggravated battery under Wis. Stat. § 940.19(2) (1991-92). Eastman, 185 Wis. 2d at 412. We determined there was no counterpart for the "utter disregard" element of reckless injury in aggravated battery. Id. Utter disregard is meant to be an "aggravating factor" and signifies a zone of highly dangerous, extreme behavior. Id. (citing Walter Dickey, et al., The Importance of Clarity in the Law of Homicide: The Wisconsin Revision, 1989 Wis. Law. Rev. 1323, 1358-59). This factor is what separates first- and second-degree reckless crimes. See Eastman, 185 Wis. 2d at 413; see also comment to Wis JI — Criminal 924.1.

¶ 13. While Eastman involved different crimes from those here, the analysis is applicable. The aggravated battery statute at issue in Eastman defined the crime as causing "great bodily harm to another by an act done with intent to cause great bodily harm to that person or another with or without the consent of the person so harmed." Eastman, 185 Wis. 2d at 411 n.1. We determined the "utter disregard" element of reckless injury was an additional element that prevented the crime from being a lesser included offense of aggravated battery. Id. at 413. Here, we are presented with a definition of aggravated battery that requires causing great bodily harm with intent to cause great or substantial bodily harm. The aggravated battery definition in Eastman and the one here are very similar, and we conclude the "utter disregard" element is not found within Wis. Stat. § 940.19(5).

¶ 14. Dibble argues we merged the "utter disregard" and "reckless" elements in Edmunds. There, a child care provider was convicted of first-degree reckless homicide after she shook to death the baby she was caring for. Edmunds, 229 Wis. 2d at 71. On appeal, she argued there was insufficient evidence to support a finding she acted with "utter disregard for human life." Id. at 74. Nowhere in our decision did we equate the reckless element of first-degree reckless homicide with the "utter disregard" element. In fact, after listing the crime's elements, we noted the reckless elements of the crime were found in elements two and three; the only place the phrase "utter disregard for human life" is found in the list is in element four. Id. at 75.

¶ 15. Our determination is supported by a further reading of the entirety of Wis. Stat. § 941.30. If, as Dibble suggests, the "reckless" and "utter disregard" elements were merged, there would be no difference between § 941.30(1) and (2). We must avoid construing a statute to render a clause superfluous. Eastman, 185 Wis. 2d at 412. When Wis. Stat. §§ 940.19(5) and 941.30(1) are fully defined, they do have very similar language. Recklessly creating an unreasonable and substantial risk of death or great bodily harm is very likely subsumed under causing great bodily harm while intending to cause great bodily harm or substantial bodily harm. Aggravated battery, however, does not have an element that encompasses first-degree recklessly endangering safety's "utter disregard for human life."

¶ 16. Dibble's second argument is based on Wis. Stat. § 939.66(3), which makes a crime a lesser included offense if it is the "same as the crime charged except that it requires recklessness or negligence while the crime charged requires a criminal intent." Dibble argues aggravated battery and first-degree recklessly endangering safety are the same except for their mental element. We have already determined that because first-degree recklessly endangering safety requires a showing of utter disregard for human life not found in aggravated battery, these two sections are not the "same crime" under § 939.66(3).

¶ 17. Although we may also consider other factors in determining the legislature's intent regarding multiple punishments, such as the legislative history, the nature of the crimes and the appropriateness of multiple punishment, Dibble has not made any arguments of this nature. In addition, we see no indication the legislature did not intend to allow multiple punishments for these crimes.

¶ 18. Because we conclude first-degree recklessly endangering safety is not a lesser included offense of aggravated battery, we need not address Dibble's claim his plea was illusory. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (if a decision on one point disposes of the appeal, an appellate court need not address the other issues raised).

By the Court. — Judgment and order affirmed.

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

       While Dibble does not specifically refer to Wis. Stat. § 939.66(1) in his brief, his argument relies on an analysis similar to that of the statute.

       Wisconsin Stat. § 940.19(5) provides: "Battery; substantial battery; aggravated battery.(5) Whoever causes great bodily harm to another by an act done with intent to cause either substantial bodily harm or great bodily harm to that person or another is guilty of a Class C felony."

       Wisconsin Stat. § 941.30(1) provides: "Recklessly endangering safety. (1) FiRst-degRee recklessly endangeRing safety. Whoever recklessly endangers another's safety under circumstances which show utter disregard for human life is guilty of a Class D felony."


source: Caselaw Access Project

author: NETTESHEIM, PJ.

license: Public Domain

text:
    In re the Termination of Parental Rights to Prestin T.B., a Person Under the Age of 18: State of Wisconsin ex rel. Julie A.B., Petitioner, v. Circuit Court for Sheboygan County, the Honorable John B. Murphy, presiding, Prestin T.B., a child under 18 years of age, and Pat Prigge, Sheboygan County Department of Health and Human Services, Respondents.
    Court of Appeals

      No. 02-1479-W.

      Submitted on briefs June 20, 2002.

    Decided July 17, 2002.

    2002 WI App 220
    (Also reported in 650 N.W.2d 920.)

      On behalf of the petitioner, the cause was submitted on the petition of Roberta A. Heckes of Adell.
    On behalf of the respondents, the cause was submitted on the brief of Robert J. Wells, district attorney of Sheboygan, and James P. Van Akkeren, assistant district attorney of Sheboygan.
    Before Nettesheim, PJ., Brown and Snyder, JJ.
   NETTESHEIM, PJ.

¶ 1. This is a termination of parental rights (TPR) case. The issue is whether more than one substitution of judge is allowed in a termination of parental rights proceeding. Julie A.B., the mother of the minor child, filed a substitution of judge request and obtained the assignment of a new judge for the judge originally assigned. Later, the guardian ad litem (GAL) for the minor child filed a substitution request and obtained the assignment of yet another judge. Julie challenged this assignment, contending that Wis. Stat. § 48.29(1), the statute governing judicial substitutions in TPR proceedings, allows but one substitution of judge. The currently assigned judge rejected Julie's challenge.

¶ 2. Julie has petitioned this court for a supervisory writ and temporary relief pursuant to Wis. Stat. Rules 809.51 and 809.52. She requests that we disqualify the currently assigned circuit judge and order that the matter be heard by the previously assigned circuit judge. Like the circuit court, we reject Julie's request. We conclude that Wis. Stat. § 48.29(1) permits more than one party to file a request for a substitution of judge in a TPR proceeding. We therefore deny Julie's petition for a supervisory writ.

Background

¶ 3. The facts are not in dispute. The Sheboygan County Department of Health and Human Services filed a petition seeking the termination of Julie's parental rights to Prestin T.B. pursuant to Wis. Stat. § 48.415(2) on grounds of Prestin's continuing need of protection or services. The case was assigned to Judge Gary Langhoff. Julie filed a timely request for substitution of Judge Langhoff, and the matter was assigned to Judge James Bolgert. Thereafter, Prestin's GAL filed a request for substitution of Judge Bolgert, and the matter was assigned to Judge John B. Murphy. That same day, Julie filed a motion objecting to the GAL's substitution request based on the language of Wis. Stat. § 48.29(1) which provides that "[n]ot more than one such written request [for substitution] may be filed in any one proceeding." Julie argued that "[t]he statute does not indicate that not more than one request per party is permitted, but instead limits the requests to 'not more than' one.1"

¶ 4. Following a hearing, Judge Murphy issued a written order denying Julie's motion based on a determination that "the proper interpretation of [Wis. Stat. §] 48.29(1) would be to prohibit a single party from filing more than one request for substitution of judge in an action and not limiting the total number of substitutions filed by the parties in an action to one such request."

¶ 5. Julie followed with the instant petition for a supervisory writ and temporary relief. We stayed further proceedings before Judge Murphy pending our opinion.

Discussion

¶ 6. The issue in this case turns upon the interpretation and application of Wis. Stat. § 48.29(1). An issue of statutory interpretation presents a question of law, which we review de novo. State v. Isaac J.R., 220 Wis. 2d 251, 255, 582 N.W.2d 476 (Ct. App. 1998). The aim of statutory construction is to ascertain the intent of the legislature, and our first resort is to the language of the statute itself. Id. If the words of the statute convey the legislative intent, that ends our inquiry. Id. However, if the language of the statute is ambiguous or unclear, the court examines the scope, history, context, subject matter, and object of the statute in order to ascertain the intent of the legislature. Id. at 256. A statute is ambiguous when it is capable of being understood by reasonably well-informed persons in two or more different senses. Id. Whether a statute is ambiguous is a question of law. State v. Peterson, 2001 WI App 220, ¶ 13, 247 Wis. 2d 871, 634 N.W.2d 893.

¶ 7. Wisconsin Stat. § 48.29(1) governs the substitution of judges in TPR proceedings. It provides in its entirety:

The child, the child's parent, guardian or legal custodian, the expectant mother or the unborn child by the unborn child's guardian ad litem, either before or during the plea hearing, may file a written request with the clerk of the court or other person acting as the clerk for a substitution of the judge assigned to the proceeding. Upon filing the written request, the filing party shall immediately mail or deliver a copy of the request to the judge named in the request. When any person has the right to request a substitution of judge, that person's counsel or guardian ad litem may file the request. Not more than one such written request may be filed in any one proceeding, nor may any single request name more than one judge. This section does not apply to proceedings under s. 48.21 or 48.213.

Sec. 48.29(1).

¶ 8. The parties dispute the meaning of the phrase "[n]ot more than one such written request may be filed in any one proceeding." Julie contends, based on this language, that only one request for substitution may be filed per proceeding. Both the County and Prestin's GAL contend that this language, when read in the context of the entire statute, reflects the legislative intent to provide each party no more than one request for substitution in a single TPR proceeding.

¶ 9. We begin by concluding that reasonably well-informed persons could interpret the language of Wis. Stat. § 48.29(1) to support the position of either party. The statute does not explicitly state whether more than one party may request a substitution of judge. As such, we hold that the statute is ambiguous. We therefore turn to the scope, history, context, subject matter, and object of the statute in order to ascertain the intent of the legislature. Isaac J.R., 220 Wis. 2d at 256. For the reasons set forth below, we conclude that the language of § 48.29(1), taken in context and read as a whole, reflects the legislative intent that more than one party may file such a request.

¶ 10. Turning first to the context of Wis. Stat. § 48.29, we observe that a TPR proceeding is generally subject to the rules of civil procedure. Door County DHFS v. Scott S., 230 Wis. 2d 460, 465, 602 N.W.2d 167 (Ct. App. 1999). However, recognizing the importance of parental rights, the legislature has set up a panoply of substantive rights and procedures to assure that parental rights will not be terminated precipitously, arbitrarily, or capriciously. State v. Frederick H., 2001 WI App 141, ¶ 17, 246 Wis. 2d 215, 630 N.W.2d 734. The legislature's enactment of § 48.29 indicates its specific intent to provide the right to request substitution in TPR proceedings pursuant to § 48.29. As we have noted, however, the statutory language is unclear as to whether the legislature intended to provide but one request per TPR proceeding or whether it intended to provide one request per party in a TPR proceeding.

¶ 11. In ascertaining the legislature's intent, we may look to related statutes for guidance in determining its intended application of a given statute. State v. McKee, 2002 WI App 148, ¶ 13, 256 Wis. 2d 547, 648 N.W.2d 34. In looking to the civil and criminal substitution statutes, we are satisfied that the legislature intended to provide each party in a TPR proceeding with an opportunity to request substitution.

¶ 12. The substitution statute in civil proceedings unambiguously permits more than one party to file a request for substitution; it provides that any party may file a request for substitution, however, "no party may file more than one such written request in any one action, nor may any single such request name more than one judge." Wis. Stat. § 801.58(1), (3). While the language of § 801.58 is very similar to that of Wis. Stat. § 48.29, § 801.58 explicitly provides that "no party may file more than one such written request" whereas § 48.29(1) provides: "Not more than one such written request may be filed in any one proceeding." (Emphsis added.) We conclude that the unambiguous language of § 801.58, coupled with the substantial importance of parental rights and the high stakes of a TPR proceeding, supports the interpretation that § 48.29 affords litigants in a TPR proceeding at least the same rights as those in a civil proceeding by permitting each party to request a substitution of judge. See Frederick H., 2001 WI App 141 at ¶ 17.

¶ 13. A close reading of Wis. Stat. § 48.29(1) supports that interpretation. First, the opening sentence of the statute identifies the various parties who may file a request for substitution — "[t]he child, the child's parent, guardian or legal custodian, the expectant mother or the unborn child by the unborn child's guardian ad litem." Id. The statute later states: "Not more than one such written request may be filed in any one proceeding, nor may any single request name more than one judge." Id. (emphasis added). We read the phrase "such written request" in this later sentence to refer to the multiple substitution requests contemplated by the first sentence. Therefore, while a party is not permitted multiple substitution requests, another party may file a substitution request.

¶ 14. Second, we deem significant the phrase "nor may any single request name more than one judge." Wis. Stat. § 48.29(1) (emphasis added). This specific prohibition as to a "single request" indicates that the legislature contemplated more than one such request. If the legislature had intended otherwise, it would not have used the word "single." Because § 48.29(1) clearly prohibits one party from filing another such written request, it is reasonable to construe this language as an indication that § 48.29(1) permits more than one party to file a substitution request.

¶ 15. Our examination of the criminal substitution statute adds further support to our interpretation of Wis. Stat. § 48.29(1) as permitting more than one party to file a request for substitution. Wisconsin Stat. § 971.20(2) specifically permits only one request for substitution by a single defendant. When an action involves more than one defendant, § 971.20(6) requires that "the request for substitution shall be made jointly by all defendants." Significantly, § 48.29(1) contains no such limitation on the right to request substitution in actions involving multiple parties. It is well established that if a statute contains a given provision, "the omission of such provision from a similar statute concerning a related subject is significant in showing that a different intention existed." Kimberly-Clark Corp. v. PSC, 110 Wis. 2d 455, 463, 329 N.W.2d 143 (1983) (citation omitted). We conclude that, in TPR proceedings, the legislative intent is to allow each party the opportunity to make one request naming a single judge. Sec. 48.29(1).

¶ 16. Finally, we address Julie's concern that con struing Wis. Stat. § 48.29(1) to permit more than one party to request a substitution in a TPR case leads to absurd results. Jube first contends that the request for substitution made by the first party to file such a request will be "nullified" by a subsequent request, thereby resulting in a loss of the first party's due process right to a timely and proper substitution. However, Julie's argument overlooks that there is no constitutional right to a peremptory substitution of a judge. State ex. rel. Garibay v. Kenosha County Circuit Court, 2002 WI App 164, ¶ 9, 256 Wis. 2d 438, 647 N.W.2d 455. Moreover, Julie's request for substitution was granted and a new judge was assigned. The GAL's request for substitution did not nullify Julie's statutory right; her right was fulfilled when her request was granted and a new judge was assigned. The right to substitution does not vest the party with a right to the successor judge; rather, it merely obtains the disqualification of the currently assigned judge.

¶ 17. Julie further contends that judicial and financial resources will be wasted if Wis. Stat. § 48.29(1) is construed to permit more than one party to request substitution. However, the financial impact of a statute is not our concern. Our review is limited to ascertaining the legislative intent. Isaac J.R., 220 Wis. 2d at 256. Here, the language of § 48.29(1), read as a whole, clearly evinces the legislative intent to allow more than one of the listed parties to file a request for substitution. This places no greater burden upon the judicial system than the civil substitution statute, Wis. Stat. § 801.58, which similarly permits more than one party to file a substitution request.

Conclusion

¶ 18. We conclude that Wis. Stat. § 48.29(1) permits more than one party to file a request for a substitution of judge in a TPR proceeding. We therefore deny Julie's petition for supervisory writ and dissolve our previous order staying the proceedings before the circuit court.

By the Court. — Writ denied.

       This appeal was originally a one-judge appeal; it was converted to a three-judge panel by order of the Chief Judge of the Court of Appeals. Wis. Stat. Rule 809.41(3) (1999-2000). All statutory references are to the 1999-2000 version unless otherwise noted.

       We note that the documents underlying the statement of facts are included in the parties' appendices to their briefs but are not part of the appellate record. Because the parties appear to concede the genuineness of the documents attached to the briefs, we will consider them as part of the appellate record. See Kox v. Ctr. for Oral and Maxillofacial Surgery, S.C., 218 Wis. 2d 93, 97 n.5, 579 N.W.2d 285 (Ct. App. 1998).

       The chief judge, acting through the court administrator, made the assignments of Judge Bolgert and Judge Murphy.

       We note that our examination of the legislative history of Wis. Stat. § 48.29 revealed nothing pertaining to the issue on appeal.

       We note that the civil statute, Wis. Stat. § 801.58(3), additionally provides that "[f]or purposes of this subsection parties united in interest and pleading together shall be considered as a single party...." Wisconsin Stat. § 48.29 does not contain similar language. However, we are satisfied that the requesting parties in this case are not aligned in interest. Thus, although the rules of civil procedure apply to TPR proceedings, Door County DHFS v. Scott S., 230 Wis. 2d 460, 465, 602 N.W.2d 167 (Ct. App. 1999), we do not address or comment upon whether or how an alignment of interest in a TPR proceeding might affect the right of substitution.

       With respect to the list of parties provided in Wis. Stat. § 48.29(1), Julie argues that the legislative use of the word "or" instead of "and" indicates that only one of these parties may file a request for substitution. The County correctly observes that Julie failed to raise this argument before the circuit court. Because our review is de novo, we nevertheless address Julie's argument insofar as to note that we agree with the County that the use of the word "or" augurs in favor of an interpretation that any one of the listed parties may file a request while the use of the word "and" would imply a requirement that the parties make such a request jointly.

       Julie also argues that the GAL's substitution request did not comport with the requirements of Wis. Stat. § 801.58. We summarily reject this argument. Although we have looked to § 801.58 for assistance in interpreting Wis. Stat. § 48.29(1), the latter statute has its own requirements, and the GAL complied with them.


text:
    James Olson and Connie Olson, Plaintiffs-Appellants, v. Auto Sport, Inc., d/b/a Lake Geneva Raceway and TIG Insurance Company, Defendants-Respondents.
    Court of Appeals

      No. 01-2938.

      Submitted on briefs May 28, 2002.

    Decided July 24, 2002.

    2002 WI App 206
    (Also reported in 651 N.W.2d 328.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of John V O'Connor of O'Connor & Willems, S.C. of Kenosha.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Pamela M. Schmidt of Whyte Hirschboeck Dudek, S.C. of Milwaukee.
    Before Nettesheim, PJ., Brown and Snyder, JJ.

       Petition to review denied 10-21-02.

   NETTESHEIM, PJ.

¶ 1. Fifteen-year old James Olson, Jr. was killed while engaged in a truck-racing event at the Lake Geneva Raceway owned by Auto Sport, Inc. His parents, James and Connie Olson, commenced this wrongful death action against Auto Sport, contending that Auto Sport had illegally employed James or otherwise permitted James to work within the meaning of and in violation of Wisconsin's child labor laws, Wis. Stat. § 103.65 (1999-2000). Based on these allegations, the Olsons argued that Auto Sport was strictly liable pursuant to Beard v. Lee Enterprises, Inc., 225 Wis. 2d 1, 9, 591 N.W.2d 156 (1999) ("An employer who violates the child labor laws is absolutely liable for injuries resulting from the violation."). The circuit court dismissed the Olsons' action at summary judgment. The Olsons appeal.

¶ 2. We uphold the circuit court's grant of summary judgment. Based upon the summary judgment record, we conclude that James was not an employee of Auto Sport at the time of his death and that Auto Sport did not permit James to work at an employment or place of employment within the meaning of Wis. Stat. § 103.65(1) when it accepted his entry fee and allowed him to participate in the truck race.

BACKGROUND

¶ 3. The relevant facts are undisputed. James paid an entry fee to Auto Sport to participate in a featured truck race at the raceway on June 2, 2000. As he was coming out of a turn on the final lap, James appeared to overcompensate for a momentary loss of control of the truck, resulting in a collision with the outside retaining wall. James was killed in the accident. The Olsons filed this wrongful death action alleging that Auto Sport had employed James at the time of the accident thereby violating Wis. Stat. § 103.65 and Wis. Admin. Code § DWD 270.06(33) by permitting James to engage in employment that may be dangerous or prejudicial to the minor's life, health, safety or welfare. Pursuant to Beard, the Olsons claimed that this violation rendered Auto Sport "absolutely liable" for damages. In its answer, Auto Sport denied these allegations.

¶ 4. The Olsons moved for partial summary judgment on the issue of whether Auto Sport had violated the Wisconsin child labor laws. The Olsons relied in part on Auto Sport's admission that it charged entrance fees to spectators, paid prize money to all drivers in the "feature race" in which James participated on June 2, 2000, and issued 1099 tax forms to all drivers who received more than $600 in prize money during a calendar year. Auto Sport filed a cross-motion for summary judgment claiming that the summary judgment record did not support the Olsons' claim that Auto Sport had employed James or otherwise permitted James to work at the raceway within the meaning of the child labor laws. Instead, Auto Sport argued that the summary judgment record established that James was recreating, not working, at the time of the accident.

¶ 5. The circuit court granted Auto Sport's motion for summary judgment. The court's order for judgment stated in relevant part, "Because there was no showing that the plaintiffs' decedent raced as a result of any employment relationship, the defendants did not violate Wisconsin child labor laws, namely [Wis. Stat.] § 103.65(1) and [Wis. Admin. Code] § DWD 270.06(33)." The Olsons appeal.

DISCUSSION

¶ 6. Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). A summary judgment motion presents a question of law that we review de novo. Wis. Conference Bd. of Trustees of the United Methodist Church, Inc. v. Culver, 2000 WI App 132, ¶ 25, 237 Wis. 2d 343, 614 N.W.2d 523, aff'd, 2001 WI 55, 243 Wis. 2d 394, 627 N.W.2d 469. Despite our de novo standard of review, we value a trial court's ruling on the matter. Id.

¶ 7. The Olsons' argument is premised upon Wisconsin child labor laws, Wis. Stat. § 103.65(1), which states:

A minor shall not be employed or permitted to work at any employment or in any place of employment dangerous or prejudicial to the life, health, safety, or welfare of the minor or where the employment of the minor may be dangerous or prejudicial to the life, health, safety or welfare of other employees or frequenters.

Wisconsin Admin. Code § DWD 270.06 complements the statute by setting out a lengthy list of those employments of minors that are absolutely prohibited and those that are permitted subject to stated qualifications or limitations. The introductory paragraph of the rule states:

The employments and places of employment designated herein shall be deemed to be dangerous or prejudicial to the life, health, safety, and/or welfare of minors under the ages specified, and their employment may be dangerous or prejudicial to the life, health, safety and/or welfare of other employees or frequenters and no employer shall employ or permit such minors to work in such employments.

Id.

¶ 8. Racing is not included in the list of prohibited or regulated employment in Wis. Admin. Code § DWD 270.06. Therefore the Olsons rely on the "catchall" provisions of subsec. (33) which prohibits the employment of minors in " [occupations which are found to be hazardous for the employment of minors or detrimental to their health or well-being." § DWD 270.06(33). As we have noted, "[a]n employer who violates the child labor laws is absolutely liable for injuries resulting from the violation." Beard, 225 Wis. 2d at 9. Absolute liability is properly imposed if the plaintiff can prove that the employer violated the statute at or about the time of the injury and that the injury occurred. Id. Finally, the injured party must be within the protected class of people — the minor, or frequenters or other employees who are endangered by the employment of the minor. Id.

¶ 9. We see the statute and administrative rule as clear and unambiguous. They clearly prohibit the employment of a minor, or allowing a minor to work, in an employment setting dangerous or prejudicial to the life, health, safety, or welfare of the minor or other employees or frequenters. The parties appear to agree on this point. But they disagree about the result when the statute and administrative rule are applied to the facts of this case. That exercise presents a question of law that we review de novo. Reyes v. Greatway Ins. Co., 227 Wis. 2d 357, 364-65, 597 N.W.2d 687 (1999).

¶ 10. In applying the statutes and rules to the facts of this case, we bear in mind that "[i]n order for there to be a violation of the child labor laws, there must be an employer/employee relationship." Beard, 225 Wis. 2d at 9. The Olsons challenge the circuit court's determination that James was not an Auto Sport "employee" within the meaning of Wis. Stat. § 103.001(5) and that Auto Sport had not permitted him to work contrary to Wis. Stat. § 103.65(1). Auto Sport contends that the summary judgment record presents no indicia that an employer/employee relationship existed between James and Auto Sport or any other entity at the time of the accident.

¶ 11. Wisconsin Stat. § 103.001(5) defines "employee" as "any person who may be required or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, or to go or work or be at any time in any place of employment." The Olsons argue that James was an employee because he paid an entry fee to Auto Sport, received prize money from Auto Sport when he raced, and was subject to specific rules promulgated by Auto Sport. We do not disagree that James and Auto Sport undoubtedly had a contractual relationship. For instance, if Auto Sport refused to pay prize money to which James was entitled, James certainly could enforce that obligation. Conversely, we do not doubt that if James disobeyed the Auto Sports rules governing a race, Auto Sport could bar James from future participation. But those kinds of mutual obligations did not serve to transform the contract between Auto Sport and James into an employer/employee relationship because they did not entail the kind of authority and control that an employer traditionally exercises over an employee. Section 103.001(5) envisions that the employee be "required or directed by [the] employer ... to engage in any employment, or to go or work or be at any time in any place of employment." Colloquially stated, the statute envisions the employer telling the employee to "go here, go there, do this and do that." There is not the slightest hint in the summary judgment record that Auto Sport had that kind of authority or control over James.

¶ 12. Moreover, Auto Sport did not train James to race or provide him with tools or equipment to assist in that endeavor. Finally, Auto Sport made no social security contributions on James' behalf.

¶ 13. We also note that although James was paid prize money for his participation in "feature races," his father testified that this was not James' motivation for racing and that the cost of racing as a hobby exceeded the prize money earned from racing. James' mother similarly testified that James did not race to earn money. While the Olsons contend that Auto Sport exercised control over James by conditioning his opportunity to race on his compliance with track rules, this alone does not amount to an employment relationship. Persons who pay a fee to use or attend a premises are often required to abide by rules promoting safety and efficiency, i.e., stadiums, arenas, amusement parks and zoos. These requirements do not convert the user into an employee of the owner or proprietor of the premises.

¶ 14. In sum, the facts surrounding James' participation indicate, as a matter of law, that he was involved in truck racing for recreational purposes. He paid entry fees for the privilege of participating. Auto Sport could neither require nor direct James to participate in the races it sponsored and promoted. The award of prize money did not represent wages or compensation growing out of an employment relationship. Viewing the summary judgment evidence in a light most favorable to the Olsons, there is no evidence, nor reasonable inference therefrom, supporting the claim that James was the employee of Auto Sport.

¶ 15. The Olsons further claim that even if Auto Sport did not employ James, it permitted James to "work at any employment or in any place of employment dangerous or prejudicial to the life, health, safety, or welfare of the minor." Wis. Stat. § 103.65(1).

¶ 16. The term "work" as employed in Wis. Stat. § 103.65(1) is not defined in Wis. Stat. ch. 103. The parties each cite to definitions of "work" in support of their respective arguments. The Olsons propose a broad definition of work: "[T]o exert oneself physically or mentally especially in sustained effort for a purpose or under compulsion or necessity — contrasted with play." The Olsons contend that James exerted himself mentally in a sustained effort every time he raced. Auto Sport urges a more narrow definition such as that set forth in Black's Law Dictionary 1598 (7th ed. 1999): "Physical and mental exertion to attain an end, esp. as controlled by and for the benefit of an employer; labor." Auto Sport contends that physical or mental exertion to attain the end of recreating or enjoyment is not within the ordinary understanding of the definition of "work."

¶ 17. We agree with Auto Sport that James' racing of trucks did not fall within the ordinarily accepted meaning of "work" and certainly not within the specific meaning of "work" as used in Wis. Stat. § 103.65(1), which is targeted at the improper employment of minors. Undoubtedly James exerted himself mentally and physically during the race as he competed and tried to win the race. But in assessing whether James was at "work," we properly look to the purpose of the effort. The summary judgment record establishes that James' efforts, although indirectly benefiting Auto Sport by attracting spectators, were expended for his own benefit and his own enjoyment. As his father testified, the prize money was not the motivation for James' racing. In fact, the cost of the racing endeavor exceeded the prize money that James won. If we adopted the Olsons' definition of "work" as taking in all of those physical and mental efforts other than those expended for "play," we would stretch the statutory concept of "work" to unreasonable and potentially absurd limits.

¶ 18. Further, the language of Wis. Stat. § 103.65(1) prohibits a minor from being "permitted to work at any employment or in any place of employment dangerous or prejudicial to the life, health, safety, or welfare of the minor." (Emphasis added.) Wisconsin Stat. § 103.001(7) defines "employment" in relevant part as "any trade, occupation or process of manufacture, or any method of carrying on such trade, occupation or process of manufacture in which any person may be engaged." The summary judgment record is barren of any evidence indicating that truck racing was James' trade or occupation. The record is equally barren of the presence of any employer — whether it be Auto Sport, some other entity, or James himself in a self-employed capacity. While James may have aspired to a professional racing career in the future, the record indicates that at the time of his death, he was a high school student whose only employment had been with a summer road crew the year prior to his death.

¶ 19. Finally, the Olsons cite to Wis. Stat. § 103.67, which sets out minimum ages for certain kinds of permitted work (i.e., fundraising sales, § 103.67(2) (c); sideline officials at high school football games, § 103.67(2)(h); and performances at public exhibitions, § 103.67(2)(b)). The Olsons reason that if such endeavors are considered "work" for purposes of that statute, it follows that James' racing activity should be similarly considered "work" for purposes of Wis. Stat. § 103.65(1). We reject this argument. Section 103.67 addresses minimum age requirements for the employment of minors in certain kinds of employment that are not deemed dangerous. The matter of dangerous employment is left to § 103.65. As we have held, that statute required evidence showing that Auto Sport employed James or otherwise permitted him to work in any employment or place of employment. The Olsons' summary judgment evidence failed to raise any material issue of fact supporting either of these claims.

CONCLUSION

¶ 20. We conclude that the Olsons failed to raise a genuine issue of material fact supporting their claim that Auto Sport employed James or that it permitted James to work in violation of the child labor laws at the time of the accident resulting in James' death. We therefore uphold the circuit court's grant of summary judgment dismissing the Olsons' complaint.

By the Court. — Judgment affirmed.

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

       In response to an interrogatory inquiry as to "all jobs ever held by [James] including name and address of each employer," the Olsons listed only James' 2000 summer employment with the Dorr Township road crew. In addition, James' mother testified that she did not believe James was an employee of the Lake Geneva Raceway.

       In light of our decision, we need not address the parties' additional arguments that are premised upon a determination that the Olsons had a viable cause of action under the Wisconsin child labor laws. Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663 (1938) (If a decision on one point disposes of an appeal, we will not decide other issues raised.).


author: SNYDER, J.

text:
    August E. Fabyan, Plaintiff-Appellant, v. Gregg Achtenhagen, Don Dupeis, Bruce Kessler, Al Haubner and Town of Delafield Board of Appeals, Defendants-Respondents.
    Court of Appeals

      No. 01-3298.

      Submitted on briefs April 26, 2002.

    Decided July 24, 2002.

    2002 WI App 214
    (Also reported in 652 N.W.2d 649.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of August E. Fabyan of Haight & Fabyan, S.C. of Hartland.
    On behalf of the defendants-respondents, the cause was submitted on the briefs of H. Stanley Riffle and Julie A. Aquavia of Arenz, Molter, Macy & Riffle, S.C. of Waukesha.

      Before Brown, Anderson and Snyder, JJ.
   SNYDER, J.

¶ 1. August E. Fabyan appeals from a judgment and order of the trial court dismissing his complaint again the Town of Delafield Board of Appeals, Gregg Achtenhagen, Don Dupeis, Bruce Kessler and Al Haubner (all members of the Town of Delafield Board of Appeals, hereinafter collectively referred to as the Board) alleging violations of Wisconsin's open meetings laws. In his original brief, Fabyan made several arguments regarding the propriety of the Board's decision regarding his request for a zoning variance. In supplemental briefing ordered by this court, Fabyan addresses whether his failure to bring this action on behalf of the State pursuant to Wis. Stat. § 19.97 (1999-2000) is fatal. We conclude that it is fatal and dismiss this appeal.

FACTS

¶ 2. Fabyan filed a petition for a variance from a town of Delafield zoning ordinance; a public hearing was held on this variance on February 26, 1998. On March 3, 1998, the Board met again, adjourned into a closed session, reconvened into an open session and voted on said variance.

¶ 3. On April 16, 1999, Fabyan filed a complaint alleging that the Board met to debate his request for a zoning variance in a closed session in violation of the open meetings laws. Fabyan also alleged that the Waukesha county district attorney's office failed to prosecute the matter within twenty days of receipt of his complaint.

¶ 4. The Board filed a motion for summary judgment. The Board argued that its actions did not constitute a violation of the provisions of Wis. Stat. ch. 19. On November 20, 2001, the trial court issued a decision granting the Board's motion for summary judgment, holding that there was no violation of the open meetings laws at the March 3, 1998 hearing or in the preparation of the findings of fact and conclusions of law. Fabyan's claims were dismissed with prejudice.

DISCUSSION

¶ 5. Fabyan filed his notice of appeal with the court of appeals on December 10, 2001, and briefing ensued. In the original briefs, several issues were raised and discussed surrounding the conduct of the Board. However, after briefing was completed, we ordered the parties to submit supplemental briefs on the following issue:

Appellant seeks appellate relief based upon the Delafield Board of Appeals alleged violation of Wisconsin's Open Meetings Law. Wis. Stat. § 19.97(4) requires that a private prosecutor must bring an action concerning an open meetings violation "in the name, and on behalf, of the state." Appellant relies upon State ex rel. Hodge v. Turtle Lake, 180 Wis. 2d 62, 508 N.W.2d 603 (1993), in which private prosecutor Hodge complied with the above requirement of § 19.97(4). However, appellant did not bring this action "in the name, and on behalf, of the state." Is a failure to comply with § 19.97(4) in this regard fatal to a private prosecutor action?

¶ 6. Fabyan argues that his failure to title the action "State ex. rel" is not fatal, as Wis. Stat. §§ 802.03 and 803.01 "make it clear not only that the failure to correctly allege or identify a party is not jurisdictional, but also that issue must be raised by the Defendants." He also argues that when a party makes a pleading error, there are libéral rights of amendment. The Board argues that this error is fatal. We agree with the Board.

¶ 7. Fabyan's argument addresses the trial court's jurisdiction, not its competency to proceed. While a trial court may have subject matter jurisdiction to consider and determine any type of action, failure to comply with a statutory mandate results in a loss of competency that prevents a court from adjudicating the specific case before it. State v. Bollig, 222 Wis. 2d 558, 565, 587 N.W.2d 908 (Ct. App. 1998).

Competency is a narrower concept than subject matter jurisdiction and is grounded in the court's power to exercise its subject matter jurisdiction .... Although a court is vested with subject matter jurisdiction by the constitution, the legislature may enact statutes which limit a court's power to exercise subject matter jurisdiction. Such legislative measures affect a court's competency rather than its jurisdiction.

Id. at 565-66 (citation omitted). Failure to comply with a statutory directive may result in a loss of competency to proceed. Id. at 566.

¶ 8. Here, the legislature has specifically dictated what a plaintiff must do to initiate a cause of action. Fabyan did not comply with this mandate. The trial court lacked the competence to proceed with this case because the clear mandates of the statute were not followed.

¶ 9. Fabyan also argues that pleading statutes should be liberally construed and when a party makes such a pleading error, there are liberal rights of amendment; he cites to the general pleading provisions of Wis. Stat. §§ 801.08, 802.03, 802.06, 803.01 and 805.18 in support of his arguments. [5]

¶ 10. However, the language governing enforcement of open meetings laws, set forth in Wis. Stat. § 19.97, is clear:

(1) This subchapter shall be enforced in the name and on behalf of the state by the attorney general or, upon the verified complaint of any person, by the district attorney of any county wherein a violation may occur. In actions brought by the attorney general, the court shall award any forfeiture recovered together with reasonable costs to the state; and in actions brought by the district attorney, the court shall award any forfeiture recovered together with reasonable costs to the county.
(2) In addition and supplementary to the remedy provided in s. 19.96, the attorney general or the district attorney may commence an action, separately or in conjunction with an action brought under s. 19.96, to obtain such other legal or equitable relief, including but not limited to mandamus, injunction or declaratory judgment, as may be appropriate under the circumstances.
(3) Any action taken at a meeting of a governmental body held in violation of this subchapter is voidable, upon action brought by the attorney general or the district attorney of the county wherein the violation occurred. However, any judgment declaring such action void shall not be entered unless the court finds, under the facts of the particular case, that the public interest in the enforcement of this subchapter outweighs any public interest which there may be in sustaining the validity of the action taken.
(4) If the district attorney refuses or otherwise fails to commence an action to enforce this subchapter within 20 days after receiving a verified complaint, the person making such complaint may bring an action under subs. (1) to (3) on his or her relation in the name, and on behalf, of the state. In such actions, the court may award actual and necessary costs of prosecution, including reasonable attorney fees to the relator if he or she prevails, but any forfeiture recovered shall be paid to the state.
(5) Sections 893.80 and 893.82 do not apply to actions commenced under this section. (Emphasis added.)

Where a general statute is at odds with a more specific statute, the more specific statute applies. See State v. Smith, 106 Wis. 2d 151, 159, 316 N.W.2d 124 (Ct. App. 1982).

¶ 11. Violators of the open meetings laws are subject to a forfeiture. Wis. Stat. § 19.96. When a forfeiture is imposed by statute, it may be recovered in a civil action unless the act is punishable by a fine or imprisonment, Wis. Stat. § 778.01, and every such action shall be in the name of the State, Wis. Stat. § 778.02.

¶ 12. Furthermore, Fabyan's requested relief includes forfeitures and fines of $300 from each Board member for each violation and an order determining that the Board's findings of fact and conclusions of law denying his variance are void. Fabyan proceeds solely under Wis. Stat. § 19.97. While Wis. Stat. § 19.96 allows for forfeitures to be imposed, a fine is not allowed and "any forfeiture recovered shall be paid to the state." Sec. 19.97(4). Furthermore, "[a]ny action taken at a meeting of a governmental body held in violation of this sub-chapter is voidable ...." Sec. 19.97(3). Summary reversal is unavailable to Fabyan under sec. 19.97.

CONCLUSION

¶ 13. Fabyan's failure to bring this action on behalf of the State pursuant to Wis. Stat. § 19.97 is fatal and deprived the court of competency to proceed. We therefore dismiss this appeal.

By the Court. — Judgment and order dismissed.

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

       Although it is clear that the Board did file a motion for summary judgment, as it is referenced throughout the record, the motion itself cannot be found anywhere in the record.

       Fabyan does not raise the issue of whether this defect is fundamental or technical in nature. While fundamental defects by definition deprive the court of personal jurisdiction, technical defects deprive the court of personal jurisdiction only if the defect is prejudicial to the defendant. Am. Family Mut. Ins. Co. v. Royal Ins. Co. of Am., 167 Wis. 2d 524, 533, 481 N.W.2d 629 (1992). The burden is on the party alleged to have served the defective pleading to demonstrate that the defect was not fundamental but technical in nature and did not prejudice the defendant. Id.

       Fabyan claims to have "filed a Motion to amend the Complaint to correctly allege that the action is prosecuted in the nameO and on behalf of the State of Wisconsin." WISCONSIN Stat. Rule 809.80(1) requires that "[a] person shall file any paper required to be filed by these rules with the clerk of the court, State Capitol, Madison, Wisconsin 53702 ...." As of June 26, 2002, no motion had been filed in the clerk's office in Madison.

       WISCONSIN Stat. § 19.96 states:
      Any member of a governmental body who knowingly attends a meeting of such body held in violation of this subchapter, or who, in his or her official capacity, otherwise violates this subchapter by some act or omission shall forfeit without reimbursement not less than $25 nor more than $300 for each such violation. No member of a governmental body is liable under this subchapter on account of his or her attendance at a meeting held in violation of this subchapter if he or she makes or votes in favor of a motion to prevent the violation from occurring, or if, before the violation occurs, his or her votes on all relevant motions were inconsistent with all those circumstances which cause the violation.


author: LUNDSTEN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Glover B. Jones, Defendant-Appellant.

    Court of Appeals

      No. 01-1398-CR.

      Submitted on briefs February 12, 2002.

      Decided July 25, 2002.

    2002 WI App 196
    (Also reported in 651 N.W.2d 305.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Mark D. Richards and Christy M. Hall oí Mark D. Richards, S.C., Racine.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Gregory M. Weber, assistant attorney general, and James E. Doyle, attorney general.

      Before Vergeront, EJ., Roggensack and Lundsten, JJ.

       Petition to review dismissed 10-21-02.

   LUNDSTEN, J.

¶ 1. Glover Jones was tried before a jury and convicted of possession of a controlled substance with intent to deliver and possession of a controlled substance without the required tax stamps. Jones raises the following challenges: (1) evidence should have been suppressed because a search warrant affidavit failed to establish probable cause and contained purposefully false information; (2) the drug tax stamp law is unconstitutional because it violates the Fifth Amendment's prohibition against compelled self-incrimination; (3) the application of the drug tax stamp law in this case violates double jeopardy; (4) the evidence was insufficient to support the verdicts; (5) the trial court improperly admitted hearsay testimony; and (6) the interest of justice requires a new trial. We affirm on all issues.

I. Challenge to Search Warrant Affidavit

¶ 2. Police executed a search warrant at a property owned by Jones in Crystal Lake, Marquette County. Using the warrant affidavit supporting this first search, and additional information obtained during and after the first search, police obtained a second search warrant for a second property owned by Jones in Neshkoro, Marquette County. While executing the second search warrant, police discovered a large quantity of marijuana. Jones contends the evidence obtained during both searches should have been suppressed because the warrant affidavit supporting the first search was inadequate.

¶ 3. Jones makes two arguments attacking the affidavit supporting the first search warrant: first, the affidavit fails to establish the reliability of the information supplied by the confidential informant and contains stale information, and second, the State purposefully included false information in the affidavit. We will provide background information and then address Jones's arguments.

A. Background

¶ 4. On January 5, 1999, the police submitted an affidavit in support of a search warrant for a property Glover Jones owned in Crystal Lake, Marquette County. The affidavit included the following information. In July 1998, Drug Enforcement Administration (DEA) agents spoke to a confidential informant in Illinois. The informant identified Glover Jones as a "large-scale" drug trafficker in Chicago, Illinois, who owned property in Wisconsin and that Jones used his Wisconsin property to conceal narcotics. The informant gave a phone number for the property and stated that Jones owned a white, refrigerated semitrailer with a hidden compartment which Jones created by removing insulation from the semitrailer's roof. The informant alleged that Jones transported up to fifty kilograms of cocaine in the hidden compartment. In the past, the informant provided information to Chicago law enforcement officials that led to a search warrant and the recovery of items identified by the informant. The Wisconsin phone number provided by the informant was registered to Jones, and the related service address was W1966 Deerborn Drive in the town of Crystal Lake. Jones had been arrested in 1971 for possession of marijuana. Jones had received a speeding ticket and a warning for speeding in August and October 1998, respectively, both in Marquette County. On December 29,1998, a police officer drove past Jones's Crystal Lake property and observed a white, refrigerated semitrailer parked on the property. The officer observed tire tracks in the snow on the driveway. The tracks were in snow that had fallen about two weeks prior. The affidavit also included several general statements about drug traffickers based on training and experience, including that they often conceal drugs, money, and records of their transactions in their residences.

¶ 5. The same day it was applied for, January 5, Circuit Court Judge Richard O. Wright issued a search warrant for Jones's Crystal Lake property and police executed the search warrant. The police found evidence of drug trafficking and used this evidence, in conjunction with the affidavit supporting the first search and additional information obtained after the first search, to secure a second warrant to search a property owned by Jones in Neshkoro, Marquette County.

¶ 6. In addition to information in the original warrant affidavit, police supplied the following information to Judge Wright in support of their request for a second search warrant. In the semitrailer on the Crystal Lake property, officers found a hidden compartment created by a suspended ceiling. In the residence, officers found marijuana and firearms, including a shotgun with its serial number scratched off. A county highway employee, who helped remove the semitrailer from Jones's property, told the officers that Jones also owned property at 425 South Main Street in Neshkoro, Marquette County, and that he had seen fresh tracks leading to the property. Police spoke with next-door neighbors of Jones's property in Neshkoro, who said Jones owned the Neshkoro property and that Jones had been to the property about Christmas time two weeks prior with another man. They said Jones brought some unidentified "property" to the house at that time.

¶ 7. When police executed the second search warrant, they found thirty-two bricks of marijuana weighing approximately 291 pounds inside a locked, freestanding refrigerated unit. The bricks had grid marks on them comparable to the grid in the hidden compartment in the semitrailer.

¶ 8. Jones moved to quash both search warrants and suppress the evidence obtained. The circuit court denied the motion.

B. Reliability of Confidential Informant Information and Staleness

1. General Principles of Law and Standard of Review

¶ 9. Jones first asserts that the warrant affidavit supporting the first search fails to establish probable cause because it contains unreliable and stale information.

¶ 10. A search warrant may issue only upon probable cause. Probable cause supporting a search warrant is determined by the totality of the circumstances. State v. DeSmidt, 155 Wis. 2d 119, 131, 454 N.W.2d 780 (1990).

A finding of probable cause is a common sense test.
"The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place."

State v. Ward, 2000 WI 3, ¶ 23, 231 Wis. 2d 723, 604 N.W.2d 517 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). The warrant-issuing judge may draw reasonable inferences from the facts asserted in the affidavit. State v. Benoit, 83 Wis. 2d 389, 399, 265 N.W.2d 298 (1978). "The test is not whether the inference drawn is the only reasonable inference. The test is whether the inference drawn is a reasonable one." Ward, 2000 WI 3 at ¶ 30.

¶ 11. Appellate courts "accord great deference to the warrant-issuing judge's determination of probable cause, and that determination will stand unless the defendant establishes that the facts are clearly insufficient to support a finding of probable cause." State v. Multaler, 2002 WI 35, ¶ 7, 252 Wis. 2d 54, 643 N.W.2d 437. The defendant bears the burden of proving insufficient probable cause when challenging a search warrant. Id.

2. Reliability of Confidential Informant Information

¶ 12. Jones argues that the warrant affidavit does not contain a basis for concluding that the confidential informant provided reliable information regarding drug dealing. Jones contends that much of the information supplied by the informant is non-incriminating and readily available to anyone. Jones argues that nothing in the affidavit suggests that the allegations of drug dealing are based on anything other than rumor. We disagree.

¶ 13. There are no longer specific prerequisites to a finding of confidential informant reliability. Rather, the current test simply requires courts to "consider all of the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information." State v. Lopez, 207 Wis. 2d 413, 425, 559 N.W.2d 264 (Ct. App. 1996). Here, the totality of the circumstances supports the warrant-issuing judge's implicit finding that the confidential informant provided reliable information.

¶ 14. First, the affidavit establishes that the confidential informant provided reliable information in the past. The informant previously supplied information leading to the issuance of a search warrant and during that search the police recovered evidence of criminal activity which the informant said would be present. The confidential informant's favorable track record is one consideration supporting the reliability of the information he or she provided. See State v. Reed, 156 Wis. 2d 546, 555, 457 N.W.2d 494 (Ct. App. 1990) (a circumstance indicating informant reliability is that the informant has provided reliable information in the past).

¶ 15. Second, the police were able to corroborate some of the informant's assertions prior to seeking the warrant. "Independent police corroboration of the informant's information imparts a degree of reliability to unverified details." Lopez, 207 Wis. 2d at 426. The phone number supplied by the informant was registered to Jones, and the number served a property owned by Jones in Wisconsin. In addition, the type of white, refrigerated semitrailer described by the informant was observed on Jones's property.

¶ 16. Third, the specificity of the informant's assertion regarding the interior of the semitrailer provides an indication of reliability. Jones correctly points out that the warrant does not indicate how the informant gathered his or her information. In this situation, "it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Spinelli v. United States, 393 U.S. 410, 416 (1969). This sort of "sufficient detail" is present here.

¶ 17. The informant did not merely say that Jones was a large-scale drug dealer who used a semitrailer to transport drugs; the informant specified that Jones had modified the semitrailer ceiling to form a hidden compartment and did so by removing insulation. This additional information is not of the type a confidential informant is likely to supply without a basis in fact. To the contrary, an untruthful informant is best served by providing only general information. This case serves as an example. It is reasonable to infer from the affidavit that the confidential informant here provides information to the police on an ongoing basis, presumably in return for some benefit. It follows that the informant has an incentive to maintain his status as a reliable informer. The search of Jones's property might or might not have revealed contraband. If the police search came up empty, it would not necessarily mean the informant was unreliable, only that the police happened to execute the warrant at a time when Jones was "clean." However, when the informant asserted that Jones had created a hidden compartment in the semitrailer, the informant put his veracity at risk. If the police discovered no hidden compartment, they would have reason to question the informant's reliability. Thus, the informant had no incentive to provide the hidden compartment detail if it was not based on reliable information.

¶ 18. Accordingly, the facts alleged in the warrant affidavit are sufficient to support the conclusion that the confidential informant provided reliable information.

3. Staleness

¶ 19. Jones contends that even if the informant's allegations would have supported probable cause at some point in time, they were "stale" by the time police applied for the search warrant. The State counters that the nature of Jones's activity, combined with his investment of time in modifying the semitrailer, suggests an ongoing criminal enterprise and, therefore, demonstrates the ongoing value of the information provided by the informant. We agree with the State.

¶ 20. We addressed staleness in State v. Moley, 171 Wis. 2d 207, 490 N.W.2d 764 (Ct. App. 1992):

"Stale probable cause, so called, is probable cause that would have justified a warrant at some earlier moment that has already passed by the time the warrant is sought.
"There is not, however, any dispositive significance in the mere fact that some information offered to demonstrate probable cause may be called stale, in the sense that it concerns events that occurred well before the date of the application for the warrant. If such past fact contributes to an inference that probable cause exists at the time of the application, its age is no taint."

Id. at 213 (quoting State v. Valenzuela, 536 A.2d 1252, 1264 (N.H. 1987)).

¶ 21. Courts look to the circumstances of each case when determining whether the information is stale. State v. Ehnert, 160 Wis. 2d 464, 469, 466 N.W.2d 237 (Ct. App. 1991). Furthermore:

When the activity is of a protracted and continuous nature, the passage of time diminishes in significance. Factors like the nature of the criminal activity under investigation and the nature of what is being sought have a bearing on where the line between stale and fresh information should be drawn in a particular case.

Id. at 469-70 (citations omitted).

¶ 22. Jones argues that the key information in the warrant affidavit — the informant's allegations — was over six months old. In essence, Jones infers from the absence of additional incriminating information in the warrant affidavit that the police were unable to unearth new information in the interim. Jones contends the absence of new information negates probable cause that he was currently engaged in criminal activity at the time police applied for the warrant.

¶ 23. We agree that the time lag in this case presents a close call. However, there is good reason to defer to the warrant-issuing judge. Drug trafficking is a crime that tends to occur over long periods of time. See United States v. Nocella, 849 F.2d 33, 40 (1st Cir. 1988) ("By its very nature, drug trafficking, if unchecked, is apt to persist over relatively long periods of time."). The allegation that Jones modified a semitrailer to form a hidden compartment for the transport of large quantities of narcotics suggests a long-term investment in criminal activity. Furthermore, newer information tied Jones and the white semitrailer to Jones's property in Wisconsin. Police records, in the form of traffic citations, revealed that Jones traveled to Marquette County in the months following the informant's tip. A police officer's observation of tire tracks in snow supported the inference that Jones moved the semitrailer to his property within two weeks of the time police applied for the search warrant. Accordingly, viewed in context, the warrant-issuing judge was justified in relying on the informant's information.

C. Whether the Affidavit Contains Purposefully False Information

¶ 24. Jones asserts the warrant affidavit contains purposefully false information because the affidavit omitted the disposition of Jones's 1971 arrest and falsely claimed that DEA agents verified the informant's tip against police files. The State responds that Jones raises this issue for the first time on appeal and, thus, the issue is waived. We agree. At no time before the trial court did Jones meaningfully suggest that suppression was required because the affidavit contained misleading information. We have located only passing references to misleading information, unsupported by legal authority, and no request for a ruling on this topic. The challenge is waived because it is raised for the first time on appeal. See Schwittay v. Sheboygan Falls Mut. Ins. Co., 2001 WI App 140, ¶ 16 n.3, 246 Wis. 2d 385, 630 N.W.2d 772 ("A party must raise an issue with sufficient prominence such that the trial court understands that it is called upon to make a ruling.").

¶ 25. Moreover, even if we were to address the merits of Jones's argument, we would reject it. In essence, Jones now contends he was entitled to a "Franks" hearing. The Court in Franks v. Delaware, 438 U.S. 154 (1978), explained:

[WJhere the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

Id. at 155-56. The Franks rule was extended in State v. Mann, 123 Wis. 2d 375, 385-90, 367 N.W.2d 209 (1985), to include omissions from a warrant affidavit if the omissions are the equivalent of deliberate falsehoods or reckless disregard for the truth. "For an omitted fact to be the equivalent of 'a deliberate falsehood or a reckless disregard for the truth,' it must be an undisputed fact that is critical to an impartial judge's fair determination of probable cause." Id. at 388 (footnote omitted). We review a trial court's denial of a defendant's motion for a Franks hearing de novo. State v. Manuel, 213 Wis. 2d 308, 315, 570 N.W.2d 601 (Ct. App. 1997).

¶ 26. The arguments Jones makes on appeal would have been insufficient to warrant a Franks hearing. He first argues that the inclusion in the warrant affidavit of his arrest for marijuana possession in 1971 deliberately deceived the court because the affidavit omitted that the charge was dismissed. Jones argues that this omission misled the issuing judge into believing the arrest led to a conviction. We disagree. Judges are well aware of the distinction between an arrest and a conviction. Here, the warrant-issuing judge was more likely to note that only an arrest was asserted and draw the inference that the police would have included a conviction had one resulted. Moreover, even assuming for argument sake that the omission was deceptive, information suggesting that Jones had previously been convicted of marijuana possession was not "necessary" to the finding of probable cause. See Franks, 438 U.S. at 155-56 (defendant must show that "allegedly false statement is necessary to the finding of probable cause").

¶ 27. Jones also contests the veracity of the following phrase from the warrant affidavit: "[Special Agents] Doescher and Archer verified the information that the [confidential source] provided to them by reviewing intelligence files maintained by the Drug Enforcement Administration and other law enforcement agencies." Jones contends that the warrant affidavit is false because the DEA had no records on Jones, so DEA agents could not have verified the information provided by the informant.

¶ 28. This argument is a non-starter. The affidavit does not assert that the agents verified any particular detail provided by the informant. The warrant-issuing judge could not logically base his decision on such a conclusory and vague statement. On its face, the statement adds nothing to probable cause and, therefore, it was unnecessary to "the finding of probable cause." Franks, 438 U.S. at 156.

II. Whether the Drug Tax Stamp Law Violates the Fifth Amendment's Prohibition Against Compelled Self-Incrimination

¶ 29. Jones claims the drug tax stamp law, Wis. Stat. §§ 139.87-139.96 (1997-98), is unconstitutional-on its face because it compels self-incrimination without prohibiting the use of this compelled self-incrimination in a criminal proceeding. Jones acknowledges that the legislature attempted to cure the pertinent statutes via amendment in response to the supreme court's decision in State v. Hall, 207 Wis. 2d 54, 557 N.W.2d 778 (1997), but contends the legislature failed. Jones asserts the statutory scheme remains unconstitutional because it (1) permits the presence of tax stamps affixed to seized contraband to be used in criminal proceedings against a dealer, and (2) contains contradictory statements undermining the legislature's attempt to fix the statutes.

¶ 30. Whether a statute is unconstitutional is a question of law we review de novo. Id. at 67. " [T]he burden of establishing the unconstitutionality of a statute is on the person attacking it, who must overcome the strong presumption in favor of its validity.'" State v. Hezzie R., 219 Wis. 2d 848, 862, 580 N.W.2d 660 (1998) (quoting White House Milk Co. v. Reynolds, 12 Wis. 2d 143, 151, 106 N.W.2d 441 (I960)). "[A] party challenging a statute bears the heavy burden of proving that the statute is unconstitutional beyond a reasonable doubt." Hezzie R., 219 Wis. 2d at 862-63.

A. Whether the Presence of Affixed Tax Stamps is Information "Independently Obtained" and Admissible in Criminal Proceedings Against a Dealer

¶ 31. Jones contends that the amended drug tax stamp statutes violate the Fifth Amendment because the presence of affixed tax stamps is information "independently obtained" and, therefore, available for use against a dealer who complies with the drug tax laws, contrary to the supreme court's directive in Hall. Jones bases this argument on his assertion that Hall states: "the presence of affixed tax stamps is information independently obtained." Jones apparently contends the Hall court held that when tax stamps are acquired from illegal drugs they are, by definition, "independently obtained" and admissible under the statute. Under this reading of Hall, the legislature's retention of the "independently obtained" exception necessarily maintains the constitutional flaw identified in Hall. However, Jones misreads Hall and the amended statutes.

¶ 32. To begin with, Jones misquotes Hall. The actual language reads: "the presence of affixed, tax stamps is not 'information obtained by the Department.' " Hall, 207 Wis. 2d at 76. Moreover, we find nothing in the Hall decision suggesting that the court construed the phrase "independently obtained" to mean that tax stamps found on illegal drugs may be used in a criminal proceeding.

¶ 33. Even though Jones's argument is based on a misreading of Hall, the question remains whether the legislature sufficiently remedied the compelled self-incrimination flaw identified in Hall. That is, does the new language prohibit the use of tax stamps affixed to illegal drugs against a dealer in a criminal proceeding. See id. at 75-76 (expressing apprehension that the old drug tax stamp statute failed to prohibit prosecutors from using affixed stamps against dealers). We conclude the legislative amendment achieved that goal.

¶ 34. The amended statutory language provides: "No information obtained from a dealer as a result of the dealer's compliance with this subchapter may be used against the dealer in any criminal proceeding...." Wis. Stat. § 139.91(3). On its face, this language provides that information obtained from a dealer showing the dealer's compliance with the drug tax stamp law, such as tax stamps found on the dealer's drugs, may not be used in a criminal proceeding. However, a potentially offending phrase follows and reads: "unless that information has been independently obtained ...." Id. We conclude this qualifying phrase is ambiguous.

¶ 35. The purpose of all statutory construction is to discern the intent of the legislature. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506 (1997). When a statute is ambiguous, we look to extrinsic factors, including legislative history, to determine the intent of the legislature. Landis v. Physicians Ins. Co. of Wis., Inc., 2001 WI 86, ¶ 15, 245 Wis. 2d 1, 628 N.W.2d 893. In addition, "there is a strong presumption favoring the constitutionality of a legislative enactment and that the court will construe the statute to preserve it if it is at all possible to do so." State v. Popanz, 112 Wis. 2d 166, 172, 332 N.W.2d 750 (1983) (footnote omitted).

¶ 36. It is undisputed that the legislature was responding to Hall when it amended the statute. The Hall court suggested that a comparable Minnesota statute provided the Wisconsin "legislature with a model of a confidentiality provision that prohibits both the direct and derivative use of information compelled by the stamp law." Hall, 207 Wis. 2d at 86. In 1997, the same year Hall was issued, the Wisconsin legislature amended the confidentiality statute and copied the Minnesota confidentiality statute almost verbatim. See 1997 Wis. Act 27, § 2979m; see also Donald Chewning, The Wisconsin Drug Tax Stamp Law, The Fifth Amendment, and the Realities of Taxing Controlled Substances, 83 MaRQ. L. Rev. 659, 673-75 (Spring 2000) (discussing the legislature's response to Hall). Therefore, it is apparent the legislature intended that the language it used would remedy the compelled self-incrimination problem identified in Hall and, therefore, apparent that the amended language should be construed consistent with that intent.

B. Whether the Amended Confidentiality Statute is Contradicted by Wis. Stat. § 139.90

¶ 37. In the alternative, Jones argues that even if the legislature successfully amended Wis. Stat. § 139.91(3) to comply with Hall and the Fifth Amendment, its overall effort nonetheless failed because Wis. Stat. § 139.90 contradicts the otherwise sufficient legislative fix. Jones contends that even if the amended § 139.91(3) excludes information obtained as a result of compliance with the drug tax stamp law from use in a criminal proceeding, § 139.90 explicitly removes that immunity because it states: "Acquisition of stamps or other evidence that the tax under s. 139.88 has been paid does not create immunity for a dealer from criminal prosecution."

¶ 38. The State responds, and we agree, that Wis. Stat. § 139.90 simply advises dealers that compliance with the drug tax stamp law does not immunize them from criminal prosecution for drug offenses. Section 139.90 says nothing about what evidence may be used in a criminal prosecution and thus does nothing to undercut the prohibition in Wis. Stat. § 139.91.

III. Whether Application of the Drug Tax Stamp Laws to Jones Violates Double Jeopardy Protections

¶ 39. Jones asserts a double jeopardy violation based on the fact that he was convicted of both possession of marijuana with intent to deliver and a drug tax stamp violation based on the same conduct. More specifically, he argues that multiple convictions were impermissible because possession with intent to deliver is a lesser-included offense of the drug tax stamp law.

¶ 40. We agree with the State that this exact claim has already been rejected in State v. Dowe, 197 Wis. 2d 848, 852, 541 N.W.2d 218 (Ct. App. 1995), rev'd on other grounds, 207 Wis. 2d 129, 557 N.W.2d 812 (1997), and that we are bound by Dowe. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). Although Dowe was reversed on other grounds, its double jeopardy holding remains good law. See State v. Byrge, 225 Wis. 2d 702, 717-18 n.7, 594 N.W.2d 388 (Ct. App. 1999) ("[Hjoldings not specifically reversed on appeal retain precedential value.").

¶ 41. Jones acknowledges that Dowe addressed this precise issue, but claims that Dowe ignored contrary binding precedent of the United States Supreme Court. Jones points to Harris v. Oklahoma, 433 U.S. 682 (1977), for the proposition that in Dowe we erroneously failed to consider conduct and looked only to the elements of the two crimes. However, in State v. Kurzawa, 180 Wis. 2d 502, 509 N.W.2d 712 (1994), the supreme court explained there is no conflict between Harris and the "elements only" analysis used in Wisconsin. Kurzawa, 180 Wis. 2d at 518-20, 525-26; see also Dowe, 197 Wis. 2d at 853-54. Accordingly, because the elements of the relevant statutes remain unchanged since Dowe, we adhere to Dowe and reject Jones's double jeopardy claim.

TV Sufficiency of the Evidence

¶ 42. Jones asserts the trial evidence was insufficient to prove guilt beyond a reasonable doubt. In essence, Jones maintains the State failed to prove he possessed the marijuana found on his Neshkoro property.

¶ 43. The State bears the burden of proving all elements of a crime beyond a reasonable doubt. State v. Sartin, 200 Wis. 2d 47, 53, 546 N.W.2d 449 (1996). This court may not reverse a conviction "unless the evidence, viewed most favorably to the state and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). If any possibility exists that the jury could have drawn the appropriate inferences from the trial evidence to find guilt, this court may not overturn the verdict. Id. at 507.

¶ 44. We conclude the evidence was sufficient to support the guilty verdicts. The evidence tied the Crystal Lake and the Neshkoro properties owned by Jones to the marijuana. The bricks of marijuana were found in a locked refrigeration unit on Jones's Neshkoro property. The bricks bore markings consistent with having been transported in the semitrailer found on Jones's Crystal Lake property. Parts of the semitrailer were found in an outbuilding and the residence on the Crystal Lake property. Police also found a small amount of marijuana and a rifle with an obliterated serial number in the Crystal Lake residence. Jones's Nesh-koro neighbor saw Jones bringing items to Jones's Neshkoro property about two weeks before police found the marijuana on the property. Jones's Neshkoro neighbor testified that she observed no new tracks in the snow on the property after Jones left. This evidence, and reasonable inferences from it, was sufficient to support a jury finding that Jones was the party who put the marijuana in the locked refrigeration unit on his property.

¶ 45. Jones points out that fingerprints detected on the marijuana did not match his fingerprints. He argues that this evidence suggests the marijuana belonged to someone else. However, the fingerprint evidence is not inconsistent with Jones's guilt. The juiy heard testimony that Jones likely used gloves to handle the aluminum-wrapped bricks of marijuana because of the cold December weather, and that criminals often fail to leave fingerprints on items they possess. The fact that someone else apparently handled the marijuana does not compel the conclusion that the jury could not have found Jones guilty beyond a reasonable doubt.

V. Admission of Hearsay

¶ 46. Jones next argues that the trial court erroneously admitted hearsay evidence tying him to the semitrailer. We conclude that any error in this respect does not warrant reversal.

¶ 47. The semitrailer found on Jones's property was not registered in Jones's name. During trial, the State attempted to show that Jones actually controlled the semitrailer and that he had registered it under a fictitious name. To this end, an officer testified that the semitrailer found on Jones's property was titled in the State of Illinois to an Albert Chaffin. The officer testified that drug traffickers commonly title the vehicles they use with fictitious names and addresses and that they typically select an address with which they are familiar. The officer testified that the address listed for Chaffin in Chicago, Illinois, was not a residence but was, instead, a mortgage banking business. The officer then testified, over a hearsay objection, that he had learned that Chaffin did not work at the mortgage company. The officer also testified, over a defense objection, that Jones had a "familiarity or involvement" with the Dakota nightclub, located at the same intersection as the mortgage company.

¶ 48. Jones claims the trial court erroneously relied on Wis. Stat. § 908.03(19), the exception for "Reputation Concerning Personal or Family History," to admit the challenged hearsay. The State does not attempt to defend the trial court's ruling and instead argues harmless error. We adopt the State's approach and, assuming without deciding that admission of the hearsay was error, we conclude the error was harmless.

¶ 49. The test for harmless error is "whether there is a reasonable possibility that the error contributed to the conviction. A reasonable possibility is a possibility sufficient to undermine our confidence in the conviction." State v. Williams, 2002 WI 58, ¶ 50, 253 Wis. 2d 99, 644 N.W.2d 919 (citations omitted). In making this determination, the reviewing court considers the entire record. State v. Patricia A.M., 176 Wis. 2d 542, 556-57, 500 N.W.2d 289 (1993).

¶ 50. Jones argues that the hearsay testimony was the only evidence linking the semitrailer to Chicago, where Jones lived. Jones also argues that the properly admitted evidence was insufficient to show that he was the person who used the semitrailer to move the marijuana or to otherwise connect him to the marijuana. We disagree.

¶ 51. First, other evidence did link the semitrailer to Chicago. Trial testimony revealed that the semitrailer was registered in the state of Illinois and titled to "8801 South Story Island in the City of Chicago." Second, for the reasons set forth in ¶ 44 of this decision, the unchallenged evidence firmly linked the marijuana and the semitrailer to Jones and provided ample evidence on which to convict Jones. We conclude that any error in admitting the challenged hearsay was harmless.

VI. Interest of Justice

¶ 52. Jones requests a new trial in the interest of justice, pursuant to Wis. Stat. § 752.35 (1999-2000). However, the arguments Jones offers in support are largely a rehash of arguments we have rejected above. We agree with the State that their quality has not improved with relabeling. We decline to order a new trial in the interest of justice.

VII. Conclusion

¶ 53. For all of these reasons, we affirm the judgment of the circuit court.

By the Court. — Judgment affirmed.

       Jones argues that the second search was illegal because it was based on the same inadequate affidavit used to support the first search and on evidence illegally obtained during that first search. Accordingly, the suppression issue in this case turns on the validity of the first search and we need not separately address the legality of the second search.

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

       In this decision, we use the term "dealer" as it is defined in Wis. Stat. § 139.87(2).

       The Minnesota confidentiality provision stated:
      [N]or can any information contained in such a report or return or obtained from a dealer be used against the dealer in any criminal proceeding, unless independently obtained, except in connection with a proceeding involving taxes due under this chapter from the dealer making the return.
      Minn. Stat. § 297D.13 (1997).
      Wisconsin Stat. § 139.91, as amended, reads:
      (3) No information obtained from a dealer as a result of the dealer's compliance with this subchapter may be used against the dealer in any criminal proceeding unless that information has been independently obtained, except in connection with a proceeding involving taxes due under s. 139.88 from the dealer.

       We need not, in this opinion, explore the full meaning of "independently obtained." We need only conclude that the phrase does not authorize what Hall found to violate the Fifth Amendment.

       In one sentence in his brief, Jones states "there are no provisions prohibiting law enforcement from using testimony or civil judgments for tax collection purposes against a defendant in a criminal case, or as an investigatory tool in identifying drug dealers." Jones provides no further argument and fails to explain why the lack of such provisions allows criminal investigators or prosecutors to use evidence of a dealer's compliance with the drug stamp law in a criminal proceeding. This argument is insufficiently developed to merit a response. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (stating that we may decline to review an issue inadequately briefed).