author: LUNDSTEN, J. ROGGENSACK, J.

text:
    99-CV-250
    99-CV-1051
    Grice Engineering, Inc., Plaintiff-Respondent, v. Kathleen M. Szyjewski d/b/a Kath's Office, Defendant-Appellant. Kathleen Szyjewski, Plaintiff, v. Gordon J. "Jack" Grice and Tyra Jacobson, Defendants.
    Court of Appeals

      No. 01-0073.

      Submitted on briefs July 9, 2001.

    Decided April 11, 2002.

    2002 WI App 104
    (Also reported in 648 N.W.2d 487.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs oí Daniel G. Jardine oí Murphy & Desmond, S.C., Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Margery Mebane Tibbetts of Brennan, Steil, Basting & MacDougall, S.C., Janes-ville.
    Before Dykman, Roggensack and Lundsten, JJ.

       Petition to review denied 9-26-02.

   LUNDSTEN, J.

¶ 1. This case involves an allegation of clerical error in a jury verdict. Grice Engineering claimed in a post-trial motion that the jury foreperson inadvertently wrote "$2400.00" as the answer to a verdict question when the jurors had actually agreed on $24,000.00. The trial court received evidence, concluded that Grice Engineering had met its burden of proving clerical error, corrected the verdict, and entered judgment incorporating the corrected $24,000.00 figure. Kathleen Szyjewski asserts the trial court erred in several respects. We reject her arguments and affirm the trial court.

Background

¶ 2. Szyjewski was a bookkeeper for Grice Engineering. Grice Engineering sued Szyjewski, claiming misrepresentation and breach of fiduciary duties. A jury trial was held on April 17, 18, 19, and 20, 2000. The twelve-member jury found that Szyjewski had misrepresented her job qualifications and had breached her fiduciary duties to Grice Engineering.

¶ 3. A series of verdict questions asked the jurors to determine amounts of money needed to compensate Grice Engineering. Verdict question 9 asked: "What amount of damages did Grice Engineering, Inc. incur which are attributable to payments Kathleen Szyjewski made to herself, for which she was not entitled." The jury foreperson filled in "$2400.00" with no comma. The verdict form shows that no juror dissented from this finding. When the trial court read the twelve answers to the verdict questions relating to Grice Engineering's claims, including this $2,400 figure, no juror spoke up to suggest there had been a mistake. The jury was not polled.

¶ 4. Prior to jury deliberations during closing arguments, the attorney for Grice Engineering argued that question 9 should be answered $25,858.75, an amount constituting "deleted checks that [Szyjewski] was not entitled to" and the "electronic transfers which were not authorized and recorded."

¶ 5. On Friday, June 2, 2000, six weeks after the verdict was announced, a person anonymously telephoned the law firm representing Grice Engineering and asserted that the jury's answer to one of the verdict questions was actually $24,000 rather than $2,400. The following week, the law firm began contacting jurors. Eventually, the firm obtained sworn statements from eleven jurors. Starting on June 9, 2000, and ending on June 16, 2000, ten jurors signed a joint affidavit stating that they had reviewed a copy of the jury verdict form and there was an error. The affidavit stated that the jurors unanimously agreed during deliberations that question 9 should be answered $24,000 and that the $2,400 figure on the verdict form was an error. The jury foreperson signed a separate affidavit on June 16, 2000, stating that the jury unanimously agreed that the answer to verdict question 9 was $24,000, that she had reviewed a copy of the verdict form and that the verdict form mistakenly indicated $2,400. Grice Engineering contacted the twelfth juror, but he declined to sign the affidavit.

¶ 6. On June 19, 2000, Grice Engineering moved the circuit court to change the answer to verdict question 9 from $2,400 to $24,000. At the motion hearing, Grice Engineering produced the twelfth juror, who testified that he had been asked to sign the joint affidavit, but declined because "all my life, unless I'm sure of something, I don't sign anything." He said he declined to sign the affidavit because he was not sure whether the assertions in it were true and he was currently still uncertain. However, he also testified that he suspected there had been a mistake with respect to question 9 and guessed the correct figure was $24,000 rather than $2,400. He also testified that, whatever the jury's answer to question 9, it had been a unanimous decision.

¶ 7. At the same hearing, Szyjewski offered testimony from a private investigator regarding statements made by one of the jurors who signed the joint affidavit. The circuit court ruled that the investigator's testimony was hearsay, but heard his testimony in the form of an offer of proof. The investigator testified that he spoke to the juror by telephone prior to the time she signed the joint affidavit and she told him she had "no idea" whether the $2,400 figure should have been $24,000.

¶ 8. At the conclusion of the hearing, the circuit court rejected Szyjewski's argument that the jurors' affidavits were unreliable because of the seven-week time lapse between the verdict and when the jurors were contacted. The court found that Grice Engineering acted promptly after learning of the possible problem and that the time lapse was not, as a matter of "public policy," too long. The court concluded that Grice Engineering had met its burden of proof because eleven jurors swore in affidavits that the correct figure was $24,000 and because the twelfth juror, though uncertain about the amount, was "unequivocal" in stating that the verdict had been unanimous. Accordingly, the circuit court granted the motion to correct the verdict and later entered judgment incorporating the correction.

Discussion

¶ 9. Szyjewski contends that the circuit court erroneously granted Grice Engineering's post-trial motion seeking verdict correction. The motion asserted that the jury foreperson made a "clerical error" when recording the jury's answer to verdict question 9. Grice Engineering supported its motion with affidavits from jurors asserting that the unanimous answer to question 9 was $24,000, not $2,400 as reported on the verdict form. Grice Engineering relied on State v. Williquette, 190 Wis. 2d 677, 526 N.W.2d 144 (1995), which held that if a trial judge "determines that evidence beyond a reasonable doubt has been presented that the originally reported verdict does not represent the 'true decision' of the jury, then he or she has the authority to amend the verdict to confirm the jury's true intentions." Id. at 698.

¶ 10. The parties agree that this case turns on the proper application of Williquette to the facts here. Although Williquette is a criminal case, the principles expressed in that decision have "equal validity in the realm of civil actions." Id. at 680 n.l. Thus, we begin with a brief discussion of Williquette and verdict correction.

¶ 11. In Williquette, the supreme court applied the prerequisites for "verdict impeachment" to verdict correction based on clerical error. Those prerequisites, as applied to verdict correction, are: (1) the presentation of competent evidence, (2) a showing of "substantive grounds sufficient to" permit correction of the clerical error, and (3) a showing of resulting prejudice. Id. at 696 (citation omitted). The first issue, competency of the evidence, frequently involves the application of Wis. Stat. § 906.06(2).

¶ 12. Wisconsin Stat. § 906.06(2) broadly prohibits evidence of anything said or done during jury deliberations. See State v. Marhal, 172 Wis. 2d 491, 495-96, 493 N.W.2d 758 (Ct. App. 1992). This rule discourages juror harassment by disappointed litigants, furthers free and open discussion among jurors, reduces the incentive for jury tampering, promotes verdict finality, and helps maintain the jury's viability "as a judicial decision-making body." State v. Shillcutt, 119 Wis. 2d 788, 794, 350 N.W.2d 686 (1984). The purposes behind § 906.06(2) are so compelling that it applies even when it acts to exclude evidence showing that something went wrong in the jury process. The recognized general rule is " 'that the statements of the jurors will not be received to establish their own misconduct or to impeach their verdict.'" Williquette, 190 Wis. 2d at 685, quoting Wolfgram v. Town of Schoepke, 123 Wis. 19, 24, 100 N.W. 1054 (1904); see also Kink v. Combs, 28 Wis. 2d 65, 77-78, 135 N.W.2d 789 (1965) (evidence that juror only agreed to verdict because of fatigue is not admissible); Tanner v. United States, 483 U.S. 107, 121-26 (1987) (applying the federal counterpart rule to exclude evidence that jurors used drugs or alcohol).

¶ 13. The Williquette court first addressed whether juror statements regarding the accuracy of a verdict were competent evidence and held that Wis. Stat. § 906.06(2) does not prohibit evidence from jurors regarding clerical error "except as specifically proscribed in sec. 906.06(2)." Williquette, 190 Wis. 2d at 694. For example, a party may present evidence that a juror thinks a true verdict is different from the one recorded, but may not present evidence that this juror's belief is based on the juror's memory of arguing about the verdict with another juror during deliberations. The latter invades the sanctity of deliberations and does not fall within an exception to § 906.06(2). In this case, the parties agree the affidavits and testimony presented by Grice Engineering were not prohibited by § 906.06(2) and that they were "competent" evidence as that term is used in Williquette.

¶ 14. What is in dispute is the application of Williquette with respect to whether Grice Engineering presented "substantive grounds sufficient to" permit correction of the verdict. See Williquette, 190 Wis. 2d at 696 (citation omitted). This factor examines what proof the party seeking correction must present to persuade the trial judge that a clerical error occurred. Id. at 696-97. Szyjewski asserts the circuit court's decision was based on insufficient proof. First, she challenges the admission of the juror affidavits based on the passage of time between rendering of the verdict and the execution of the affidavits. Second, she argues that even if too much time had not passed, Grice Engineering failed to meet the beyond-a-reasonable-doubt standard because it failed to show that all twelve jurors agreed on the correction. For the reasons that follow, we reject Szyjewski's arguments and affirm the circuit court.

Trustworthiness of the Affidavits

¶ 15. Szyjewski argues that the juror affidavits do not meet the trustworthiness standard required by Williquette. She asserts the seven- to eight-week time lag between the return of the verdict and when Grice Engineering obtained the affidavits renders the affidavits insufficiently trustworthy. We disagree.

¶ 16. We first observe that the appellate standard of review of a circuit court's decision on trustworthiness is not apparent from the Williquette decision. The parties here argue about the standard of review, but provide no authority that helps us resolve the question. Regardless, we conclude that we would affirm the circuit court's trustworthiness ruling under either a deferential or de novo standard of review.

¶ 17. The Williquette court held that evidence of clerical error "may be adduced via affidavit, courtroom testimony or any other manner prescribed by the circuit court as long as the evidence's trustworthiness can be assured." Id. at 697. The court explained that when making the "initial determination" on the admission of such evidence, one factor to be considered is the amount of time that has passed since the verdict was rendered. Id. at 697 n.14. The more time that passes "following the entry of a verdict, the less likely the trial court should be to entertain evidence" of clerical error. Id. The Williquette court noted that at least one commentator had suggested a ten-day time limit, but the court rejected this type of bright-line approach. Instead, the court simply directed trial courts to consider time as a factor. Id.

¶ 18. It is evident from Williquette that a key trustworthiness factor is time and, in turn, an important time factor is whether the amount of time casts doubt on the reliability of the jurors' recollections. However, the court also indicated that the party seeking correction must act promptly. See id. at 699. One reason the court rejected the attempt to amend the verdict in Williquette was that the party seeking a correction did not promptly present the jurors for questioning after discovering there might have been an error. See id. Although the possible error was discovered the day the verdict was returned, the last juror was not questioned until ten months after the verdict. Id. at 681-82 & n.3. We glean from this discussion in Williquette that prompt action after discovery of a possible verdict error does not necessarily weigh in favor of the party seeking correction. For example, even prompt action a very long time after a verdict is returned may not lead to the correction of clerical error. At the same time, a party discovering a possible problem has a duty to act promptly and a court may hold the failure to act promptly against a party seeking to correct a verdict.

¶ 19. We now apply the above principles and observations to the case at hand.

¶ 20. First, the record shows that Grice Engineering acted promptly when it learned there might have been clerical error. It received an anonymous call on a Friday, six weeks after the verdict, and began contacting jurors the following week. Within two weeks, Grice Engineering had contacted and obtained sworn statements from eleven jurors. This stands in sharp contrast to the "delay of some ten months" in Williquette, id. at 699, where neither party acted promptly after discovering a potential problem.

¶ 21. Second, Szyjewski does not raise any specific concerns related to the facts in this case. She simply argues that the "period of 7-8 weeks falls way behind any [reasonable] line." In effect, Szyjewski is arguing for a "bright line." That is, she contends that a line should be drawn at eight weeks, perhaps shorter, but at least at eight weeks. However, there is nothing inherently excessive about a seven- to eight-week time period. The supreme court in Williquette declined to adopt a bright-line approach, and we follow that court's lead in rejecting Szyjewski's proposal.

¶ 22. In addition, we note there are several circumstances suggesting the correction is accurate. The difference between the reported answer to verdict question 9 and the corrected answer is very large, both considered in isolation and in the context of the other damages awarded, none of which exceeded $3,200. There is nothing suspect about the fact that jurors would recall, even several weeks later, that they voted for the much larger amount when answering question 9. Also, the verdict was returned just after midnight of the fourth day of trial. Under this circumstance, it is understandable that the jury foreperson mistakenly wrote "$2400.00" instead of "$24000.00." Likewise, it is understandable that when the trial judge read the jury's twelve answers relating to Grice Engineering's claims, including eight monetary amounts, at the end of such a long day, no juror noticed or spoke up to say there had been an error. Finally, the $24,000 figure approximates the $25,858.75 figure suggested as an answer to question 9 during closing argument by counsel for Grice Engineering.

¶ 23. Accordingly, we conclude the circuit court properly relied on the juror affidavits, despite the seven- to eight-week time lag between the verdict return and the execution of the affidavits.

Agreement of "All of the Jurors"

¶ 24. Szyjewski next argues that even if the seven- to eight-week time lag did not render the affidavits untrustworthy, the trial court nonetheless erred because, all twelve jurors did not assert that the true answer to verdict question 9 was $24,000. Szyjewski accurately states that one juror merely guessed that the true amount was $24,000. She contends Williquette requires that all of the jurors give trustworthy statements on the details of the correction. Grice Engineering responds that the circuit court correctly analyzed the situation when it found that the true verdict answer, beyond a reasonable doubt, was $24,000 based on the affidavits of eleven jurors and the testimony of the twelfth juror that, while he was not sure about the $24,000 figure, he was sure the answer to the verdict question had been unanimous.

¶ 25. We have considered all of the arguments presented and conclude that one of the arguments advanced by Grice Engineering at the post-trial hearing is the most persuasive. Grice Engineering argued that because this is a civil case requiring only five-sixths of the jurors to agree on a verdict, it needed to present supporting affidavits from just five-sixths of the jurors.

¶ 26. It is true that the Williquette court held that a party requesting correction of a clerical error in a jury verdict "must present evidence beyond a reasonable doubt that the verdict, as originally reported, is in error," and also true that the court said this meant showing that "all of the jurors [are] in agreement as to the error." Williquette, 190 Wis. 2d at 697. However, Williquette was a criminal case and this is a civil case, a difference that matters.

¶ 27. Verdicts in criminal cases must be unanimous. See State v. Johnson, 2001 WI 52, ¶ 11, 243 Wis. 2d 365, 627 N.W.2d 455. In contrast, civil cases require agreement of five-sixths of the jurors. Wis. Const, art. I, § 5; Wis. Stat. § 805.09(2). When a civil case is tried before twelve jurors, the answer to each verdict question needs the agreement of the same ten jurors. It follows, we believe, that proof beyond a reasonable doubt in the civil jury trial context may be supplied by showing that five-sixths of the jurors agree the reported verdict is in error and agree on the corrected verdict, provided each of these jurors was a part of the original group in favor of the verdict. This approach meets the "all of the jurors" requirement in Williquette. See Williquette, 190 Wis. 2d at 697.

¶ 28. Szyjewski's contrary interpretation of Willi-quette would open the door to mischief. Under her view, a juror who did not join the verdict could derail the decision of five-sixths of the jurors by disagreeing with a verdict correction. For that matter, a juror who joined the verdict, but whose vote was not needed to meet the five-sixths requirement, could spoil a correction. If such a juror's vote was not needed in the first place, then it hardly makes sense to give that juror the power to undermine the verdict of the five-sixths after the fact.

¶ 29. Therefore, the propér application of Willi-quette in a civil context means that five-sixths of the jurors "must be in agreement as to the error," provided each of these jurors was a part of the original group in favor of the verdict. See Williquette, 190 Wis. 2d at 697. Here, regardless of other arguments made by Szyjew-ski, it is undisputed that the twelve jurors unanimously answered verdict question 9 and that Grice Engineering presented uncontested affidavits from ten of the jurors that the correct answer to question 9 was $24,000.

By the Court. — Judgment affirmed.

ROGGENSACK, J.

¶ 30. (concurring). The majority applies the beyond a reasonable doubt standard in this civil case as the quantum of proof required to correct a jury's answer to a question on a special verdict. Majority at ¶ 27. I write separately to note that the parties have not suggested that a different standard applies in this civil context; therefore, we do not decide whether a lower burden of proof is sufficient.1 observe that the supreme court has, in a civil context, applied the clear and convincing burden of proof to verdict impeachment based on alleged extraneous information. After Hour Welding, Inc. v. Laneil Mgmt. Co., 108 Wis. 2d 734, 744, 324 N.W.2d 686, 692 (1982) (changing an answer to a question in a special verdict requires clear and convincing proof that extraneous, prejudicial information was improperly brought to the jury's attention). Additionally, when the evidence of jury misconduct is competent, a court must be persuaded only by "clear and satisfactory" proof that a juror engaged in misconduct in order to overturn a criminal conviction. State v. Eison, 194 Wis. 2d 160, 177, 533 N.W.2d 738, 744 (1995). Accordingly, I concur in the result, but not in the majority's application of the beyond a reasonable doubt burden of proof.

       Szyjewski counter-claimed, alleging defamation, and all claims were tried together. Szyjewski has not appealed her unfavorable result relating to the defamation claim.

       Counsel for Grice Engineering provided this information and actually said "25,000" and "2,500." However, in context, it is evident he misspoke and that everyone at the hearing understood him to be referring to "24,000" and "2,400."

       After the circuit court disallowed the investigator's testimony, Szyjewski asked for a continuance to present testimony directly from this juror. That request was denied and Szyjewski does not raise this denial as an issue on appeal.

       In this opinion, we use the term "verdict correction," rather than "verdict impeachment," because the jury's actual verdict has not been challenged. The question here, as in Williquette, is whether the circuit court properly corrected the recorded verdict to match the true verdict. See State v. Biller, 262 Wis. 472, 476, 55 N.W.2d 414 (1952) (correcting a wrongly recorded verdict" '[i]n a sense ... is not impeaching the verdict, for the verdict is the agreement which the jurors reach . .. and not the written paper ....'" (quoting Brophy v. Milwaukee Elec. Ry. & Transp. Co., 251 Wis. 558, 566, 30 N.W.2d 76 (1947))).

       Wisconsin Stat. § 906.06(2) (1999-2000) provides:
      906.06 Competency of juror as witness ....
      (2) INQUIRY INTO VALIDITY OF VERDICT OR INDICTMENT. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon the juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to hear upon any juror. Nor may the juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying he received.
      All further references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The Williquette court talks only about the amount of time from when the verdicts were returned until the jurors were questioned in court. The decision does not tell us whether the jurors made assertions regarding the verdict sooner. We assume that if there were evidence of earlier questioning or assertions in the case, the Williquette court concluded it was insubstantial for purposes of assessing the time lag. We observe, however, that if a juror is questioned promptly after the return of a verdict and asserts the recorded verdict was wrong, and then much later asserts in an affidavit or in court that he or she promptly affirmed to an investigator that there had been an error, this is information a court may take into account in assessing time lag.

       In her reply brief, Szyjewski argues that Grice Engineering presented no evidence showing when or even that Grice Engineering learned of a possible problem from an anonymous caller. This argument was waived. It is true that the anonymous call and the date of the call were established at the hearing based on the assertion of an attorney for Grice Engineering, but Szyjewski never hinted that this fact was in dispute and did not object when the circuit court implicitly incorporated the assertion into its findings of fact for purposes of concluding that Grice Engineering acted promptly. Indeed, Szyjewski's counsel incorporated the anonymous caller assertion into his own argument at that hearing, asserting that both sides learned of the possible problem from an anonymous caller at about the same time.

       Wisconsin Stat. § 805.09(2) provides, in part: "A verdict agreed to by five-sixths of the jurors shall be the verdict of the jury."

       Because we hold that Grice Engineering met its burden by presenting sworn statements from five-sixths of the jurors, we need not address Szyjewski's complaint that the circuit court erroneously excluded testimony from her investigator offered to cast doubt on the accuracy of the eleventh sworn statement.

       To the extent that the majority opinion incorporates the burden used in State v. Williquette, 190 Wis. 2d 677, 526 N.W.2d 144 (1995), which also applied the beyond a reasonable doubt burden of proof for the correction of a jury verdict, I note that the burden of proof was applied to determine whether Willi-quette sexually assaulted a victim other than the victim reported on the verdict. Conviction of a crime always requires proof beyond a reasonable doubt. Therefore, the court's opinion did not focus on the burden it applied to the requested verdict change, nor did it change its past precedent in regard to the burden of proof required to overturn a criminal conviction. Instead, the court, as it reasoned to a conclusion that all twelve jurors must be in agreement in order to change a verdict in a criminal case that resulted in the conviction of a different crime, applied the beyond a reasonable doubt burden without discussion. Id. at 696-98, 526 N.W.2d at 151-52. It should be noted that there is ample supreme court precedent showing that a lesser quantum of proof is sufficient to change a jury's verdict when the change does not result in the conviction of a crime. See State v. Eison, 194 Wis. 2d 160, 177, 533 N.W.2d 738, 744 (1995); State v. Messelt, 185 Wis. 2d 254, 281, 518 N.W.2d 232, 243 (1994); After Hour Welding, Inc. v. Laneil Mgmt. Co., 108 Wis. 2d 734, 744, 324 N.W.2d 686, 692 (1982). See also State v. Broomfield, 223 Wis. 2d 465, 479, 589 N.W.2d 225, 231 (1999) (decided after Williquette and relying on "clear, satisfactory, and convincing evidence" as that quantum of proof required for a finding of jury misconduct).


source: Caselaw Access Project

author: DYKMAN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. William A. Rouse, Defendant-Appellant.

    Court of Appeals

      No. 01-0774-CR.

      Submitted on briefs December 7, 2001.—

      Decided April 11, 2002.

    2002 WI App 107
    (Also reported in 647 N.W.2d 286.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Morris D. Berman of Berman Law Office, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Sandra L. Nowack, assistant attorney general.
    Before Vergeront, PJ, Dykman and Lundsten, JJ.

       Petition to review denied 7-26-02.

   DYKMAN, J.

¶ 1. William Rouse appeals from an order denying his postconviction motion to vacate the portion of his sentence ordering him to pay restitution to Wisconsin Community Bank. Rouse argues that the court was without authority to order the restitution because it was based, in part, on the time that the bank's salaried employees spent assisting police in researching Rouse's crime, and therefore, the bank did not demonstrate that it paid out any additional expenses as a result of his conduct. Because we conclude that Wis. Stat. § 973.20(5)(a) (1999-2000) authorizes a circuit court to order restitution based on a victim employer's lost employee time, we affirm.

Background

¶ 2. The State charged William Rouse with nine counts of forgery under Wis. Stat. § 943.38. It alleged that Rouse had forged a series of checks in amounts ranging from $2.14 to $460.68 over a period of approximately two weeks. Rouse later pleaded no contest to and was convicted of one count of forgery. The circuit court dismissed the remaining counts, but concluded that they would be read in for purposes of sentencing. See Wis. Stat. § 973.20(lg)(b). At the sentencing hearing, the State requested, among other things, that Rouse be ordered to compensate Wisconsin Community Bank, the bank of the two individuals who were Rouse's victims, for the time the bank's employees spent researching the forgery allegations.

¶ 3. Ultimately, the court sentenced Rouse to seven years in prison, but stayed the sentence and placed Rouse on probation. The court agreed with the State's suggestion and ordered Rouse to "make payment of restitution" to Wisconsin Community Bank in the amount of $1,000 "for their work."

¶ 4. Rouse moved for postconviction relief, challenging the portion of the sentence ordering him to pay $1,000 to the bank. Rouse asserted in his motion that the restitution order "was not supported by any evidence in the record that the purported loss actually occurred or was caused by the actions of the defendant." At a postconviction hearing, the bank offered a document itemizing the expenses it had incurred as a result of Rouse's forgeries. According to the document, the bank incurred $61.20 in phone and fax expenses, $22.50 in copy expenses, $103.25 in "miscellaneous expenses," and $684.00 in labor. More specifically, the bank claimed that its Vice President of Operations, its Assistant Vice President, and an administrative assistant spent a total of twenty-four hours researching the forgery allegation. In total, the bank claimed $870.95 in expenses. The bank's Vice President of Operations, Curtis Schwerin, gave testimony consistent with the document.

¶ 5. On cross-examination, Schwerin admitted that he, the assistant vice-president, and the administrative assistant were all salaried employees, and that although the investigation caused Schwerin to work more hours than he otherwise would have, the bank did not pay Schwerin or the other employees extra for the time they spent investigating Rouse's forgeries. At the end of the hearing, the court reaffirmed its restitution order, reasoning that the bank should be compensated for "expend[ing] its resources remedying the situation that [Rouse] created rather than in doing other tasks for the benefit of the employer." The court denied Rouse's motion in an order dated March 1, 2001, but reduced the amount ordered to $702.50. Rouse appeals.

Decision

¶ 6. Whether a circuit court has the authority to order restitution under a particular set of facts is a question of law that we review de novo. State v. Holmgren, 229 Wis. 2d 358, 366, 599 N.W.2d 876 (Ct. App. 1999). The court's authority to order restitution is grounded in Wis. Stat. § 973.20. Id. Section 973.20(lr) provides that the sentencing court "shall order the defendant to make full or partial restitution under this section to any victim of a crime considered at sentencing."

¶ 7. We first note that Rouse does not challenge the circuit court's restitution order on the basis that the bank was not a "victim" within the meaning of Wis. Stat. § 973.20, and therefore not entitled to receive restitution. See, e.g., State v. Ortiz, 2001 WI App 215, 247 Wis. 2d 836, 634 N.W.2d 860 (Ct. App.); State v. Schmaling, 198 Wis. 2d 756, 543 N.W.2d 555 (Ct. App. 1995). We therefore do not address this issue. Further, although Rouse in his postconviction motion challenged the full amount of the restitution that the circuit court ordered him to pay the bank, on appeal his arguments relate solely to that portion of the restitution relating to the labor expended by the bank employees in investigating Rouse's crime. We therefore conclude that Rouse has conceded that the circuit court had authority to order Rouse to pay for the bank's phone, fax and copying expenses as well as the expense in setting up new accounts and the lost interest.

¶ 8. In asserting that the circuit court was authorized to order Rouse to pay restitution to the bank for the time its employees spent investigating the forgeries, the State points to Wis. Stat. § 973.20(5), which provides in part:

In any case, the restitution order may require that the defendant do one or more of the following:
(a) Pay all special damages, but not general damages, substantiated by evidence in the record, which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing.
(b) Pay an amount equal to the income lost, and reasonable out-of-pocket expenses incurred, by the person against whom a crime considered at sentencing was committed resulting from the filing of charges or cooperating in the investigation and prosecution of the crime.

The State argues that the restitution ordered to the bank can be properly classified as either "special damages" or "out-of-pocket expenses" under the statute, and therefore must be upheld on appeal. We have defined special damages as those "representing the victim's actual pecuniary losses" as opposed to general damages, which are those "not readily susceptible to direct proof or easily estimable," and include pain and suffering and injury to reputation. State v. Stowers, 177 Wis. 2d 798, 804-05, 503 N.W.2d 8 (Ct. App. 1993). Rouse argues that the bank had no damages or expenses because it did not pay its employees any more than it otherwise would have.

¶ 9. Both parties rely on Holmgren to support their positions. In Holmgren, the defendant was convicted of employee theft after he charged various items and expenses to his employer that were unrelated to his job. 229 Wis. 2d at 363. The circuit court ordered Holmgren to pay restitution to his employer for various expenses, including about $17,500 for auditing expenses that the employer incurred while investigating Holmgren's misconduct. Id. at 363-64. We affirmed the order with respect to the auditing expenses, reasoning: "[T]he audit was done to ascertain the extent of Holmgren's wrongdoing. Thus, the audit's cost was an expenditure necessitated by Holmgren's crime and is a special damage that could be recovered in a civil proceeding." Id. at 372.

¶ 10. We agree with Rouse that, unlike his case, the investigating expenses in Holmgren were incurred as the result of an audit conducted by an outside accounting firm, comprised of individuals who were not regular employees of the victim employer. Id. at 363. We are reluctant, however, to adopt a rule that would determine whether a victim could receive restitution for investigating expenses based solely on whether it performed the research through an outside firm or with its own employees. Rouse points to language in Holmgren that he contends would require such a result. Specifically, in describing special damages under Wis. Stat. § 973.20(5)(a), Holmgren stated: "Any readily ascertainable pecuniary expenditure paid out because of the crime is appropriate as special damages." 229 Wis. 2d at 365.

¶ 11. There is no dispute that the bank did in fact "pay out" salaries to its employees for the time they spent researching the forgeries. We agree with Rouse, however, that their salaries were not paid "because" of his misconduct — they would have been paid regardless. We have held that a circuit court may not order restitution unless there is causal nexus between the damage incurred and the crime considered at sentencing. State v. Canady, 2000 WI App 87, ¶ 9, 234 Wis. 2d 261, 610 N.W.2d 147. The victim must show that the defendant's conduct was a "substantial factor" in causing the damage. State v. Madlock, 230 Wis. 2d 324, 333, 602 N.W.2d 104 (Ct. App. 1999).

¶ 12. Although it is true that Rouse's crime was not the cause of the bank's employees being paid their salaries, Rouse does not dispute that his conduct was a substantial factor in causing them to investigate his forgeries rather than perform other tasks. Viewed in this light, the damage incurred by the bank was not the payment of additional wages, but rather the loss of the value of its employees' services for the time that they were diverted from doing other work. Although Holmgren noted that special damages included "paid out" expenses, it also noted that the ultimate issue under Wis. Stat. § 973.20(5)(a) is whether a loss is "a special damage that could be recovered in a civil proceeding." 229 Wis. 2d at 372. The issue, then, is whether an employer could recover for its employees' lost time as special damages in a civil action. We conclude that it could.

¶ 13. Most courts that have considered the issue have concluded that a plaintiff can recover the value of employees' lost services as damages in a contract or tort action, even when it had not shown that it incurred additional expenses or lost profits. See, e.g., Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1150 (3d Cir. 1990); Dunn Appraisal Co. v. Honeywell Info. Sys., 687 F.2d 877, 884 (6th Cir. 1982); Convoy Co. v. Sperry Rand Corp., 672 F.2d 781, 785-86 (9th Cir. 1982); United States v. CBS, Inc., 103 F.R.D. 365, 370 (C.D. Cal. 1984); Stahl Mgt. Corp. v. Conceptions Unlimited, 554 F. Supp. 890, 895 (S.D.N.Y. 1983); Vmark Software, Inc. v. EMC Corp., 642 N.E.2d 587, 594-95 (Mass. Ct. App. 1994); Charleston Lumber Co. v. Miller Housing Corp., 458 S.E.2d 431, 437 (S.C. Ct. App. 1995). Courts in these cases have consistently rejected the argument that an employer is not entitled to recover because the employee would have received the same pay regardless of the defendant's conduct. The court in Convoy stated: "The issue is not whether [the plaintiff] would have paid the supervisors' salaries if the defendant had not breached the contract, but whether the breach deprived [the plaintiff] of the services it paid for." 672 F.2d at 785.

¶ 14. Although we have never decided this issue directly, we held in Patrick v. Head of the Lakes Co-op. Elec. Ass'n., 98 Wis. 2d 66, 295 N.W.2d 205 (Ct. App. 1980), that an insured was entitled to recover for lost employee time under a policy that obligated the insurer to pay for the reasonable expenses, including lost earnings, incurred in assisting the defense of a claim. Id. at 73. Echoing the logic of Convoy, we reasoned: "The question is not whether an employee lost wages, but whether the [insured] sustained a loss because it had to pay wages to employees for time spent in the litigation as opposed to working at Cooperative business." Id.

¶ 15. The same reasoning applies here. As the circuit court noted, while the bank's employees were investigating Rouse's forgeries, they were prevented from doing other work for the bank, and thus the bank lost all value of their services during that time. We decline to require that victims demonstrate lost profits as this would be overly burdensome and would fail to adequately recognize the value inherent in an employee's services. The deprivation of an employee's productivity is a loss in itself that may or may not have an end result of lost profits. Requiring such a showing could deprive entities that do not work for profit any compensation for their lost resources. Further, it is reasonable to compensate an employer for this loss with the amount that it paid the employees during the time they were diverted.

¶ 16. In sum, we conclude that the circuit court was authorized under Wis. Stat. § 973.20(5)(a) to order Rouse to pay restitution to Wisconsin Community Bank for the time its employees spent researching Rouse's forged checks. This conclusion is supported by other states with similar restitution statutes that have held that it is appropriate to order defendants to pay for a victim's lost employee time, see State v. Marquez, 912 P.2d 390, 392-93 (Or. Ct. App. 1996), and also by Wisconsin case law that has recognized an individual's lost time as an appropriate consideration in determining the amount of restitution. See State v. Kennedy, 190 Wis. 2d 252, 261, 528 N.W.2d 9 (Ct. App. 1994). Rouse has not argued that the amount of time spent by the bank's employees was unreasonable or otherwise challenged the reasonableness of the order. We therefore need not consider that issue.

By the Court. — Order affirmed.

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

       These included setting up a new account and ordering new checks and debit cards for the victims and "loss on working income on funds in the forgery."

        But see Cashman v. Allied Prods. Corp., 761 F.2d 1250, 1256 (8th Cir. 1985) (denying recovery for lost time when plaintiff had already recovered lost profits); AES Tech. Sys., Inc. v. Coherent Radiation, 583 F.2d 933, 942 (7th Cir. 1978) (holding that plaintiff could not recover for "past salaries" of employees when plaintiff testified that employees continued to work on other projects). We do not consider whether the circuit court's authority to order restitution for lost employee time would be affected if the court had already ordered a defendant to compensate the victim for lost profits.

       Oregon Revised Statute 137.106 authorizes a court to order restitution for crime victims when the defendant's conduct has "resulted in pecuniary damages." ORS 137.103(2) defines "pecuniary damages" as meaning "all special damages, but not general damages, which a person could recover against the defendant in a civil action."

       Because we have concluded that the circuit court was authorized to order Rouse to pay the bank restitution for its employees' lost time under Wis. Stat. § 973.20(5)(a), we need not decide the State's alternative argument, namely, that we could affirm the order on the basis that it was "a reasonable and appropriate" condition of probation under Wis. Stat. § 973.09(1)(a). We note, however, that there may be conflicting authority on that issue. Compare State v. Torpen, 2001 WI App 273, ¶ 16, 248 Wis. 2d 951, 637 N.W.2d 481 ("[W]e reject the proposition that § 973.09(1)(a) allows a court to order what is not permitted by § 973.20.") with State v. Heyn, 155 Wis. 2d 621, 629-30, 456 N.W.2d 157 (1990) (upholding order for defendant to pay for victim's burglar alarm even though it was not a "pecuniary loss" under previous version of § 973.20, because it could be ordered instead as a reasonable and appropriate condition of probation).


author: ROGGENSACK, J.

text:
    Sarah Flint and Wayne Spencer Frank, Plaintiffs-Appellants, v. Barbara A. O'Connell, M.D., Defendant-Respondent.
    Court of Appeals

      No. 01-1021.

      Oral argument December 12, 2001.

    Decided April 11, 2002.

    2002 WI App 112
    (Also reported in 648 N.W.2d 7.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Donald J. Jacquart, David P. Lowe, and Paul R. Jacquart of Jacquart & Lowe, S.C. of Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, Charles D. Hoornstra, assistant attorney general, and James McCambridge, assistant attorney general.

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

¶ 1. Sarah Flint and Wayne Spencer Frank sued Dr. Barbara A. O'Connell for negligently failing to diagnose Flint's pregnancy in a timely fashion. Flint and Frank contend that O'Connell's negligence prevented Flint from electing to have an abortion which caused them damages associated with the pregnancy, its effects on Flint's health and the costs of raising the healthy child born to them as a result. Because we conclude that Flint and Frank have not made a showing sufficient to distinguish the public policy concerns underlying the supreme court's prohibition against recovery of the costs of raising a healthy child due to the failure to diagnose a pregnancy that are set out in Rieck v. Medical Protective Co., 64 Wis. 2d 514, 219 N.W.2d 242 (1974), we affirm the judgment of the circuit court dismissing their claims for this type of damages. However, in regard to Flint's claims that O'Connell's failure to diagnose resulted in exacerbation of her chronic illness and associated consequences, we reverse the circuit court prior to a full public policy analysis of the remaining damages that were alleged and remand for further proceedings consistent with this opinion.

BACKGROUND

¶ 2. Flint was diagnosed with systemic lupus erythematosus in 1985. In 1994, for issues related to her lupus, Flint was referred to O'Connell, a licensed gynecologist. Flint subsequently informed O'Connell that she had had a positive pregnancy test and that she wished to undergo an abortion for personal and medical reasons.

¶ 3. In accordance with Flint's decision, O'Connell performed a procedure to abort a pregnancy in January 1995. However, it was later determined that Flint had not been pregnant. After this experience with Flint's "false positive" pregnancy test, O'Connell prescribed an oral contraceptive, but Flint never used it. At about the same time, O'Connell also diagnosed Flint as suffering from premature ovarian failure or "premature menopause."

¶ 4. Between mid-November 1997 and early January 1998, Flint made several telephone calls to O'Connell's office because of recurring periods of nausea, lower abdominal pain and vaginal bleeding. Based on their initial communication during this period, O'Connell adjusted the medication Flint was taking for ovarian failure. Because Flint continued to report abdominal pain and nausea, an examination was scheduled. When O'Connell examined Flint on January 12, 1998, she did not note an enlarged uterus, nor did she diagnose Flint's pregnancy, which was then on-going.

¶ 5. On March 3, 1998, Flint saw a rheumatologist whom she told that she felt movement within her pelvis. The rheumatologist ordered an ultrasound study which showed Flint was well into the second trimester of pregnancy. Flint sought the opinion of an obstetrician who specializes in high-risk pregnancies and continued with the pregnancy. She gave birth to a healthy baby boy on May 31, 1998.

¶ 6. After the diagnosis of her pregnancy, Flint discontinued some of the medication she had been taking for lupus. Subsequent to her son's birth, she experienced a decrease in kidney function, which eventually ended in renal failure and a kidney transplant. Flint contends that her kidney failure was a result of having stopped medication during pregnancy, which pregnancy she claimed to have learned of when it was too late to have an abortion.

¶ 7. In the second amended complaint, Flint and Frank allege that O'Connell provided negligent care by failing to inform Flint that she could become pregnant and by failing to diagnose the pregnancy in time to abort the fetus. O'Connell denied all material allegations, including the assertion that Flint learned of the pregnancy when it was too late for an abortion, and she moved for summary judgment of dismissal.

¶ 8. In deciding O'Connell's motion for summary judgment, the circuit court determined that public policy precludes recovery for all types of damages on the claim that O'Connell negligently failed to diagnose Flint's pregnancy. However, the court also concluded that if Flint proves that O'Connell negligently failed to inform her about the possibility of becoming pregnant, she could potentially recover the claimed damages, including expenses related to the kidney transplant and the costs of raising her healthy son to the age of majority.

¶ 9. In response to the court's ruling, the parties reached a stipulation whereby they agreed to conditionally dismiss the claim that O'Connell failed to inform Flint that she could become pregnant. The circuit court accepted the stipulation and entered final judgment in favor of O'Connell. Flint appeals.

DISCUSSION

Standard of Review.

¶ 10. We review summary judgment decisions de novo, applying the same standards employed by the circuit court. Guenther v. City of Onalaska, 223 Wis. 2d 206, 210, 588 N.W.2d 375, 376 (Ct. App. 1998). We first examine the complaint to determine whether it states a claim, and then we review the answer to determine whether it joins a material issue of fact or law. Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31, 34 (Ct. App. 1997). If we conclude that the complaint and answer are sufficient to join issue, we examine the moving party's affidavits to determine whether they establish a prima facie case for summary judgment. Id. at 232-33, 568 N.W.2d at 34. If they do, we look to the opposing party's affidavits to determine whether there are any material facts in dispute that entitle the opposing party to a trial. Id.

¶ 11. Here, the question presented is whether public policy precludes recovery of damages based on O'Connell's alleged negligence in failing to diagnose Flint's pregnancy. Whether public policy considerations preclude the recovery of damages for a defendant's negligence in a given case is a question of law that we review de novo. Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 635, 654, 517 N.W.2d 432, 435, 443 (1994) ("The application of public policy considerations is a function solely of the court.").

Public Policy.

1. Overview.

¶ 12. In Wisconsin, one is obligated to exercise reasonable care such that one does not cause foreseeable harm to another. Marciniak v. Lundborg, 153 Wis. 2d 59, 64, 450 N.W.2d 243, 245 (1990). However, even when negligence has been proved, public policy considerations may preclude recovery of damages. Therefore, "negligence plus an unbroken sequence of events establishing cause-in-fact does not always and necessarily lead to a determination that a defendant is liable for the plaintiffs injuries." Id. at 65, 450 N.W.2d at 245. A defendant may be relieved of liability for public policy reasons if any one of the following six factors is present:

(1) The injury is too remote from the negligence; or (2) the injury is too wholly out of proportion to the culpability of the negligent tort-feasor; or (3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; or (4) because allowance of recovery would place too unreasonable a burden (in the case before us, upon physicians and obstetricians); or (5) because allowance of recovery would be too likely to open the way for fraudulent claims; or (6) allowance of recovery would enter a field that has no sensible or just stopping point.

Rieck, 64 Wis. 2d at 517-18, 219 N.W.2d at 244.

¶ 13. Generally, public policy determinations proceed on a case-by-case basis because claim-specific facts are often relevant to the analysis. Bowen, 183 Wis. 2d at 660, 517 N.W.2d at 445-46. In some cases, the pleadings may present a question of public policy that can be resolved on a motion to dismiss or a motion for summary judgment. Id. at 654-55, 517 N.W.2d at 443. In other cases, a full trial may be desirable prior to the court's public policy determination. Id.

2. Failure to diagnose Flint's pregnancy.

¶ 14. Flint alleges that O'Connell negligently failed to diagnose her pregnancy. She alleges this negligence caused her to give birth to her son because when she subsequently learned she was pregnant, it was too late to have an abortion. The economic damages sought include lost wages, medical costs associated with the pregnancy, the birth and Flint's kidney failure, as well as the costs associated with raising her son. Flint also claims non-economic damages related to the stresses of the pregnancy and her later kidney failure. Therefore, the question presented is whether, assuming arguendo that Flint has proved all the elements of her negligence claim, public policy nevertheless precludes recovery of some or all of the claimed damages.

¶ 15. In Rieck, the supreme court applied a public policy analysis to damages sought for negligence based on a physician's alleged failure to diagnose a pregnancy. Because O'Connell contends that Rieck controls the public policy issue presented by Flint's claim and because Flint claims that Rieck can be distinguished on its facts, we begin our discussion with Rieck. There, plaintiffs alleged that: (1) an examining physician negligently failed to diagnose a pregnancy; (2) by the time the pregnancy was diagnosed, it was too late to abort the fetus; and (3) if the first physician had timely diagnosed the pregnancy, the mother would have undergone an abortion "because of personal reasons relating to the health of Mrs. Rieck, and the general welfare of the Rieck family." Rieck, 64 Wis. 2d at 515-16, 219 N.W.2d at 243. In their complaint, the Riecks sought damages for the stresses involved and the costs associated with raising a child who, although born healthy, was alleged to have been unwanted. Id.

¶ 16. On these facts and focusing on the types of damages that were requested, the supreme court considered the six public policy factors listed above and held that several of them applied to bar recovery. Addressing concerns about the authenticity of the plaintiffs' claim, the court held:

The complaint here alleges what the parents of the child would have done if they had been informed of the fact of pregnancy at the time of the mother's consulting the obstetrician sued. At the time of trial it is entirely predictable that the parents would have firmly testified to the fact of such intention, and its fixed and unalterable character. It is cultivating the obvious to state that, if the door were opened to recovery under such allegation and such subjective testimony as to state of mind or intention, the temptation would be great for parents, where a diagnosis of pregnancy was not timely made, if not to invent an intent to prevent pregnancy, at least to deny any possibility of change of mind or attitude before the action contemplated was taken. We have no hesitancy in concluding that to hold that the allegations of this complaint constitute a cause of action for recoverable damages would open the way for fraudulent claims and would enter a field that has no sensible or just stopping point.

Id. at 519, 219 N.W.2d at 245 (emphasis added). The court also concluded that shifting the entire cost of a healthy child's upbringing to a physician who failed to determine and inform the parents of the fact of pregnancy would, under the circumstances there alleged, be wholly out of proportion to the culpability involved and place too unreasonable a burden upon physicians. Id. at 518-19, 219 N.W.2d at 244-45.

¶ 17. Flint contends that additional facts in this case are sufficient to distinguish Rieck's public policy concerns about the authenticity of her claim. For example, Flint argues that her asserted intent to have an abortion is less likely to be fraudulent because (1) she faced a high-risk pregnancy; (2) she previously had chosen to abort what she believed to be a pregnancy; and (3) prior to the diagnosis of premature ovarian failure, she had consulted with O'Connell about contraception, even though she never used the contraceptives O'Connell prescribed. Flint contends that because her case involves these additional facts — which, according to her, strongly support the trustworthiness of her stated intent to terminate the pregnancy — public policy favors a jury determination of her claims. In support of this argument, she relies on the supreme court's decision in Marciniak.

¶ 18 Marciniak involved a claim for negligent performance of a surgical sterilization that resulted in an unwanted pregnancy. Marciniak, 153 Wis. 2d at 61-62, 450 N.W.2d at 244. As damages for the negligence, the plaintiff-parents sought the costs associated with raising their healthy, but unintended child. Id. The supreme court held that if the plaintiffs were able to prove a negligently performed sterilization, public policy would not prevent recovery of the costs of raising a healthy child. Id. at 64, 450 N.W.2d at 245.

¶ 19. The Marciniak court expressly addressed Rieck and elected to distinguish rather than overrule it. Marciniak, 153 Wis. 2d at 70, 450 N.W.2d at 247-48. In concluding that Rieck was not controlling in cases involving allegations of negligent sterilization, the supreme court noted that in negligent sterilization cases plaintiffs seek treatment from a physician for the express purpose of permanently avoiding conception, and therefore, the plaintiffs have established an interest in avoiding pregnancy before it occurs. In contrast, reasoned the court, the plaintiff-mother in Rieck was already pregnant at the time she consulted the physician. Accordingly, Rieck established an interest only in the alleged inability to choose to have an abortion. Id. at 70, 450 N.W.2d at 247. The court in Marciniak concluded that these differing interests were significant, in part because a woman's decision to undergo surgical sterilization eliminates any concern about a fraudulent claim (i.e., fraud in claiming that the parents intended to permanently avoid pregnancy). Id. at 68, 450 N.W.2d at 246-47.

¶ 20. Here, we are faced with two categories of damages: (1) the financial costs of raising a healthy child to adulthood and (2) the damages associated with the deterioration of Flint's health due to the continuation of the pregnancy. Because the public policy analysis is different for each category of damages, we will address them separately.

¶ 21. As we examine the first category of Flint's damages under the public policy analysis of Rieck and Marciniak, we note that the material facts in Rieck which drove the supreme court's decision that damages could not be recovered for the financial costs of raising a healthy child are also present here. For example, the following facts are parallel to the facts underlying the supreme court's policy analysis in Rieck: (1) O'Connell is accused of negligently failing to timely diagnose an existing pregnancy; (2) Flint's claimed injury is that she was unable to abort the fetus when her pregnancy was later diagnosed; (3) Flint contends that she would have had an abortion but for the delayed diagnosis; (4) in order to link O'Connell's alleged negligence to the claimed injury, the trier of fact would have to believe that Flint would have aborted the fetus if her pregnancy had been diagnosed when O'Connell last examined her, but that she could not do so when a correct diagnosis was made; and (5) Flint and Frank will retain all the benefits of parenthood. However, we also note that the affirmative act taken to permanently avoid conception, by which Marciniak distinguished Rieck, is not present here.

¶ 22. Therefore, we conclude that Rieck controls the public policy analysis of the damages associated with the costs of raising a healthy child to the age of majority because Flint had only an interest in an ability to choose to abort her pregnancy. The potential size of such a damage award, when tied to a hypothetical desire to abort an already on-going pregnancy, comes squarely within Rieck's concern that parents in similar circumstances would be tempted either to invent an intent to prevent pregnancy or at least to deny any possibility of a change of mind or attitude about continuation of the pregnancy when pregnancy was discovered. Rieck, 64 Wis. 2d at 519, 219 N.W.2d at 245. Furthermore, contrary to Flint's assertion, Marciniak stands on footing different from that which Flint presents. In particular, the potential for fraud in Marciniak was much lower because the mother subjected herself to surgical sterilization, thereby demonstrating an interest in permanently avoiding conception. Here, Flint took no steps to obtain a sterilization to permanently prevent pregnancy before it occurred.

¶ 23. Flint also contends that Rieck should be distinguished based on the nature and extent of Flint's physician-patient relationship with O'Connell. In particular, Flint points out that O'Connell had been her treating physician for several years; that O'Connell knew that Flint's lupus would make a pregnancy potentially hazardous; and that, in treating a lupus patient, O'Connell should have been particularly sensitive to monitoring whether Flint was or was not pregnant. We take this argument to suggest that the nature of O'Connell's duty to Flint was different from the duty owed by the defendant in Rieck.

¶ 24. However, in reaching its conclusion regarding the authenticity of the claim, the concern of the court in Rieck was not that the physician had not breached a duty of due care. Rather, the court's opinion was directed at preventing the fraudulent recovery of the very significant costs of raising a healthy child as damages by a plaintiff who was already pregnant and now wanted to base a claim for relief on her contention that an abortion was not an option because of the delayed diagnosis. We fail to see how the history of Flint's treatment relationship changes the concern about fraudulent claims for the large damages awards addressed in Rieck. Therefore, we conclude that allowing Flint and Frank to recover the costs of raising a healthy child would open the door to fraudulent claims and would permit damages wholly out of proportion to the culpability involved, thereby placing an unreasonable burden on the physician.

¶ 25. However, we also conclude that the additional, material factual allegations (see ¶¶ 17 and 23 above) that were not present in Rieck, if proved, could cause the second category of damages to survive a subsequent public policy analysis because claims seeking this category of damages are less likely to be fraudulent. Therefore, even though it is true that the damages relating to the deterioration of Flint's health rest on proof that O'Connell negligently failed to diagnose Flint's pregnancy, that Flint could not have obtained a therapeutic abortion when her pregnancy was diagnosed, that she would never have continued with the pregnancy if she could have had an abortion and that O'Connell's negligence was a substantial factor in the decline in Flint's health, the damages claimed are different from damages for raising a healthy child because they are for personal injuries due to a missed diagnosis such as are commonly associated with medical malpractice. Therefore, it is possible that they may not be wholly out of proportion to the claimed act of negligence. Furthermore, the incitements to fraud are much less likely when the alleged damages result from defined personal injuries rather than from the financial costs of raising a healthy child to majority. For example, it is unlikely that a plaintiff would undergo a kidney transplant without a medical need for that procedure. And finally, there is no benefit to Flint associated with the claimed deterioration of her health, as there is with the costs of raising a healthy child while retaining the benefits of parenthood. Accordingly, although we do not conduct a complete public policy analysis on the limited record before us, we conclude that Flint's claim for damages relating to the deterioration of her health is not precluded by the same public policies that controlled in Rieck. Therefore, we reverse the circuit court insofar as its decision precludes proof of Flint's claim for medical malpractice relating to these damages.

CONCLUSION

¶ 26. Because we conclude Flint has not made a showing sufficient to distinguish the public policy concerns underlying the supreme court's prohibition against recovery of the costs of raising a healthy child for the failure to diagnose a pregnancy set out in Rieck, we affirm the judgment of the circuit court dismissing all claims for this type of damages. However, in regard to Flint's claims that O'Connell's failure to diagnose resulted in exacerbation of her chronic illness and associated consequences, we reverse the circuit court prior to a full public policy analysis of the remaining damages that were alleged and remand for further proceedings consistent with this opinion.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded.

       Flint and Frank, the child's father, were married after the birth of their son.

       The stipulation provides that if Flint's "failure to diagnose" claim is reinstated on appeal, O'Connell agrees to reinstate the "failure to inform" claims on remand. If, on the other hand, Flint's appeal is not successful, the stipulation provides that all claims for relief will be dismissed with prejudice. Accordingly, Flint's "failure to inform" claim is not before us on appeal, except insofar as it retains the costs of raising a healthy child as a component of damages, which we conclude below are not available unless they result from a negligently performed sterilization.

       In support of her motion for summary judgment, O'Connell focused only on a public policy basis for dismissal. Therefore, she provided no competent evidence to disprove Flint's assertion that she learned of her pregnancy too late to obtain an abortion and in support of her own denial of that material fact. It would have been better practice for O'Connell to have submitted an affidavit supporting her denial of Flint's contention that at the twenty-third week of pregnancy an abortion was no longer possible and to have given Flint the opportunity to provide competent evidence to support her factual assertion. In that way, it would have become clear whether a trial on this material fact was required or whether Flint had no viable claim of any type. (The only evidence in the record on this factual dispute is Flint's statement in her deposition that she had been told that her pregnancy was too far along for an abortion. That evidence is insufficient to sustain Flint's burden on this material issue, as a matter of law, because whether an abortion can be performed at the twenty-third week of pregnancy is a medical fact requiring expert testimony. See State v. Whitaker, 167 Wis. 2d 247, 255, 481 N.W.2d 649, 652 (Ct. App. 1992); Fritz v. McGrath, 146 Wis. 2d 681, 689, 431 N.W.2d 751, 755 (Ct. App. 1988)).

       The plaintiffs had requested the financial costs of raising their healthy child to the age of majority, while keeping all the benefits associated with raising the child. Rieck v. Medical Protective Co., 64 Wis. 2d 514, 517-18, 219 N.W.2d 242, 244 (1974).

       Stated another way, if Flint would have chosen to proceed with the pregnancy, or if she could still have obtained a therapeutic abortion at the time of the diagnosis, the claimed damages would not be due to O'Connell's missed diagnosis.

       There is no allegation, for example, that Flint's medical condition made pregnancy so dangerous that no reasonable person in her position would ever choose to have a child. Additionally, as part of Flint's submissions to the circuit court, she submitted a letter from Dr. Carolyn Bell who stated, "At this point she is already halfway through the pregnancy and fortunately has not had a major flare, I think it is very likely that Sarah will want to continue the pregnancy." Therefore, her past attitude about continuing the pregnancy may not have been what she now contends it is.

       We are aware of the risks of deciding a case on public policy grounds when the claims may not have been fully developed before the circuit court. See Johnson v. Rogers Mem'l Hosp., Inc., 2001 WI 68, ¶ 16, 244 Wis. 2d 364, 627 N.W.2d 890.


author: CANE, C.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Douglas J. Lasky, Defendant-Appellant.

    Court of Appeals

      No. 01-2503-CR.

      Submitted on briefs March 18, 2002.—

      Decided April 16, 2002.

    2002 WI App 126
    (Also reported in 646 N.W.2d 53.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Eileen A. Hirsch, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Gregory M. Weber, assistant attorney general.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review denied 7-26-02.

   CANE, C.J.

¶ 1. Douglas Lasky appeals from a judgment of conviction for armed robbery and battery, both as party to a crime. Lasky, who pled no contest, argues that his convictions should be dismissed on two bases: (1) his prosecution for armed robbery was prohibited by Wis. Stat. § 939.71 because he had been convicted of the same crime in federal court; and (2) prosecuting Lasky in state court following his federal prosecution violated his right to fundamental fairness. The State disagrees and also asserts that Lasky waived his right to appeal his convictions when he pled no contest.

¶ 2. We conclude that Lasky did not waive his right to challenge the application of Wis. Stat. § 939.71 when he pled no contest. However, we conclude that Lasky's prosecution was not barred because the elements of both aggravated bank robbery, contrary to 18 U.S.C. § 2113(a) and (d), and armed robbery, contrary to Wis. Stat. § 943.32(2), require "proof of a fact for conviction which the other does not require." See Wis. Stat. § 939.71. We also reject Lasky's argument that his prosecution in state court violates his right to fundamental fairness. Accordingly, we affirm the judgment.

Statement of Facts

¶ 3. On October 11, 1999, Lasky and his father, Dennis Lasky, robbed the First State Bank in Cecil. According to the criminal complaint, they entered the bank wearing masks and carrying guns. During the robbery, Dennis hit one of the tellers on the head with a gun. The two men took more than $70,000 in cash from the bank.

¶ 4. Lasky and his father were subsequently arrested. Lasky was charged with crimes in both federal and state courts. In federal court, he was charged with aggravated bank robbery. He pled guilty and was sentenced to seventy-eight months in prison.

¶ 5. In state court, Lasky was charged with armed robbery, theft from a person and battery, all party to a crime. Lasky filed a motion to dismiss the armed robbery charge on grounds that his prosecution violated Wis. Stat. § 939.71. The court denied his motion, concluding that the prosecution was not barred because the state crime contains an element that is not an element of the federal crime, and vice versa. See id. The trial court determined that the state crime required proof of specific intent to steal, while the federal crime required only general intent. Further, the court determined that only the federal crime required that the crime victim be a federally-insured financial institution.

¶ 6. Lasky ultimately pled no contest to armed robbery and battery. The State dismissed the charge of theft from a person. He was sentenced to fifteen years in prison for the armed robbery, consecutive to his seventy-eight-month federal sentence. Lasky also was sentenced to one year in prison for the battery, concurrent with his sentence for armed robbery.

¶ 7. This appeal presents three issues: (1) whether the guilty-plea-waiver rule bars consideration of Lasky's appeal; (2) whether Wis. Stat. § 939.71 bars Lasky's prosecution for armed robbery; and (3) whether Lasky's prosecution violates his right to fundamental fairness. Although we decline to apply the guilty-plea-waiver rule here, we reject Lasky's challenges to the judgment and affirm.

Discussion

¶ 8. The central issue is whether the State was barred from prosecuting Lasky for armed robbery after he had already been convicted for aggravated bank robbery in federal court. The United States Supreme Court has recognized that successive state and federal prosecutions do not violate the Fifth Amendment's proscription against double jeopardy. See Bartkus v. Ill., 359 U.S. 121, 132-33 (1959); see also State v. Petty, 201 Wis. 2d 337, 358-59, 548 N.W.2d 817 (1996) (recognizing that a defendant may be placed in jeopardy for the same crime by separate state and federal prosecutions). However, Bartkus recognized that individual states are free to enact statutes that bar subsequent prosecutions, and noted that many states already had. See id. at 138-39.

¶ 9. Indeed, when Bartkus was released, Wisconsin had a statute limiting subsequent prosecutions. Wisconsin Stat. § 939.71, which has been renumbered but not amended since its passage in 1955, provides:

Limitation on the number of convictions. If an act
forms the basis for a crime punishable under more than one statutory provision of this state or under a statutory provision of this state and the laws of another jurisdiction, a conviction or acquittal on the merits under one provision bars a subsequent prosecution under the other provision unless each provision requires proof of a fact for conviction which the other does not require.

This statute substantively enacts the test established in Blockburger v. United States, 284 U.S. 299, 304 (1932), for determining whether two offenses are the "same offense" for double jeopardy purposes. State v. Vassos, 218 Wis. 2d 330, 335, 579 N.W.2d 35 (1998).

¶ 10. Therefore, the issue presented is not whether Lasky's state prosecution violates his constitutional rights, but rather whether Wis. Stat. § 939.71 bars his prosecution for armed robbery. The circuit court concluded that because the state crime and the federal crime both required proof of a fact that the other does not require, the prosecution was not barred by § 939.71. Because statutory interpretation is a question of law, we consider the application of § 939.71 independently of the circuit court, benefiting from its analysis. See Vassos, 218 Wis. 2d at 334.

I. Application of the guilty-plea-waiver rule

¶ 11. Before we consider the application of Wis. Stat. § 939.71, we consider the State's argument that Lasky waived his right to challenge his conviction when he pled no contest. The general rule is that a guilty or no contest plea waives all nonjurisdictional defects and defenses, including alleged constitutional violations occurring prior to the plea. See State v. Bangert, 131 Wis. 2d 246, 293, 389 N.W.2d 12 (1986); Racine County v. Smith, 122 Wis. 2d 431, 434, 362 N.W.2d 439 (Ct. App. 1984). However, this court has recognized that "double jeopardy is an exception to the guilty-plea-waiver rule." State v. Hubbard, 206 Wis. 2d 651, 655, 558 N.W.2d 126 (Ct. App. 1996). .

¶ 12. The State argues that the double jeopardy exception to the guilty-plea-waiver rule does not apply because Lasky is asserting a "simple claim of statutory error" under Wis. Stat. § 939.71, rather than a constitutional double jeopardy claim. In response, Lasky states, "Although this case is not technically a double jeopardy case, the statute is a 'first cousin' [to Block-burger], as the state acknowledges in its brief.... All of the reasons for exempting double jeopardy cases from waiver apply to this case as well." Lasky also argues that the interests of fairness and judicial economy are served by declining to apply the waiver rule to this case.

¶ 13. The guilty-plea-waiver rule, like the general rule that failure to timely raise objections at trial will result in waiver, is a rule of administration and not of power. State v. Riekkoff, 112 Wis. 2d 119, 124, 332 N.W.2d 744 (1983). Although the rule has found widespread application, it does not deprive an appellate court of its subject matter jurisdiction. Id. at 123. We decline to apply the guilty-plea-waiver rule in this case for several reasons. First, application of Wis. Stat. § 939.71 is closely related to a double jeopardy analysis, and double jeopardy claims are not subject to the guilty-plea-waiver rule. Second, Lasky raised the issue in the circuit court, and there is no suggestion that when Lasky pled no contest he expressly waived his right to contest his State prosecution for armed robbery. See Hubbard, 206 Wis. 2d at 656 n.4 (A defendant may expressly waive a double jeopardy defense as part of a plea bargain.). Finally, the issue, which has potential state-wide importance, has been fully briefed and is ripe for decision. Accordingly, we will address Lasky's claim on its merits.

II. Application of Wis. Stat. § 939.71

¶ 14. Application of Wis. Stat. § 939.71 in this case requires us to compare the elements of aggravated bank robbery under federal law and armed robbery under state law to determine whether the federal crime contains an element that is not an element of the state crime, and vice versa. If each crime "requires proof of a fact for conviction which the other does not require," then Lasky's state conviction for armed robbery cannot stand. See id.

¶ 15. The parties agree on the requisite elements for each crime. The federal crime, aggravated bank robbery, 18 U.S.C. §§ 2113(a) and (d), requires proof of the following four elements:

First, the defendant took or attempted to take, from the person or presence of another [money; property; a thing of value] belonging to or in the [care; custody; control; management; possession] of (here name bank, savings and loan, credit union, named in the indictment);
Second, at the time charged in the indictment the [bank; savings and loan; credit union] had its deposits insured by the [Federal Deposit Insurance Corporation; Federal Savings and Loan Insurance Corporation; National Credit Union Administration];
Third, the defendant took or attempted to take such [money; property; thing of value] by means of force and violence, or by means of intimidation; and
Fourth, the defendant assaulted or put in jeopardy the life of (here name person(s) named in the indictment) by the use of a dangerous weapon or device, while committing or attempting to commit the theft of burglary.

2B Kevin E. O'Malley et al., Federal Jury Practice and Instructions — Criminal § 57.06 (West 5th ed. 2000).

¶ 16. The state crime, armed robbery, Wis. Stat. § 943.32(2), requires proof of five elements:

The first element requires that (name) was the owner of property.
The second element requires that the defendant took property from the person or from the presence of (name).
The third element requires that the defendant took the property with the intent to steal. This requires that the defendant had the mental purpose to take and carry away property of another without consent and that the defendant intended to deprive the owner permanently of possession of the property ....
The fourth element requires that the defendant acted forcibly. "Forcibly" means that the defendant actually used force against (name) with the intent to overcome or prevent physical resistance or physical power of resistance to the taking or carrying away of the property or threatened the imminent use of force against (name) with the intent to compel (name) to submit to the taking or carrying away of the property.
The fifth element requires that at the time of the taking or carrying away, the defendant used or threatened to use an article used or fashioned in a manner to lead (name) reasonably to believe it was capable of producing death or great bodily harm.

See Wxs JI — Criminal 1480A (footnotes omitted).

¶ 17. The State asserts that Lasky's prosecution for armed robbery is not barred by Wis. Stat. § 939.71 because the federal crime requires proof of two facts not required for the state crime, and the state crime requires proof of one fact not required for the federal crime.

A. The federal crime

¶ 18. The State argues that the fourth element of the federal crime differs from the state crime because it requires that the defendant, by use of a dangerous weapon or device, either assaulted or put in jeopardy the life of another person. See 18 U.S.C. § 2113(d).

¶ 19. The State contends that Wis. Stat. § 943.32(2) requires proof neither of assault nor that a victim's life has been jeopardized. The State explains that § 943.32(2) "requires only that the defendant act by force or imminent force. It does not require the force to be of a particular type or intensity, or likely to result in the victim's death."

¶ 20. In response, Lasky argues that the federal element is the same as the fifth element of Wis. Stat. § 943.32(2), requiring proof that "at the time of the taking . . . the defendant used or threatened to use an article used or fashioned in a manner to lead [the victim] reasonably to believe it was capable of producing death or great bodily harm." See Wis JI — Criminal 1480A. We disagree. The state element requires merely that the defendant used or threatened to use a dangerous weapon. At the federal level, the prosecution is required to prove that the victim was assaulted or that the victim's life was in jeopardy. See 18 U.S.C. § 2113(d).

¶ 21. Lasky suggests that because proof that the defendant used or threatened to use a dangerous weapon will also prove that the victim's life was in jeopardy, the state and federal elements are the same. Lasky relies on United States v. Roustio, 455 F.2d 366 (7th Cir. 1972), which held that the "in jeopardy" element of 18 U.S.C. § 2113(d) is met when a robbery victim is "placed in an objective state of danger," and that a jury can infer such a state from evidence that the victim was intimidated by the display and threatened use of a gun by the robber. See United States v. Richardson, 562 F.2d 476, 481 (7th Cir. 1977) (quoting Roustio, 455 F.2d at 371).

¶ 22. We acknowledge that there may be some cases where the same evidence used to prove that the defendant used or threatened to use a dangerous weapon, see Wis. Stat. § 943.32(2), could be used to prove that the victim was placed in an objective state of danger. See 18 U.S.C. § 2113(d); Roustio, 455 F.2d at 371. However, because there are cases where the use or threatened use of a dangerous weapon will not endanger the victim's life, we cannot conclude that the two elements are the same. For example, a defendant who threatened to use a dangerous weapon, but never actually had a weapon, may not have placed the victim in an objective state of danger.

¶ 23. We conclude that the federal crime requires proof of a fact that the state crime does not require: that the victim was assaulted or that the victim was placed in an objective state of danger. Because we have identified one unique element in the federal crime, we decline to address the State's argument that the second federal element is also unique because it requires that the financial institution had its deposits insured by the corresponding federal insurance corporation. See Clark v. Waupaca County Bd. of Adj., 186 Wis. 2d 300, 304, 519 N.W.2d 782 (Ct. App. 1994).

B. The state crime

¶ 24. We next turn to the State's argument that the state crime of armed robbery requires an element not present in the federal offense of aggravated bank robbery. Specifically, the State contends that the second element of the state crime, requiring "that the defendant took the property with the intent to steal," is unique. The State explains:

The state offense... requires proof that Lasky either possessed the specific intent to steal or, if Lasky was an accomplice to the armed robbery, that the principal offender possessed the specific intent to steal. The federal offense ... does not require proof of intent to steal. It is a general intent crime, requiring only that Lasky possess knowledge "with respect to the actus reus of the crime." Carter v. United States, 530 U.S. 255, 268 (2000).

¶ 25. We agree with the State's conclusion. The state offense requires proof of specific intent to steal. See Wis JI — Criminal 1480A. Conversely, 18 U.S.C. § 2113(a) is a general intent crime. See Carter v. United States, 530 U.S. 255, 268 (2000).

¶ 26. Lasky does not dispute that only the state crime requires proof of specific intent to steal. However, he argues that his prosecution is nonetheless barred by Wis. Stat. § 939.71 because he was charged as a party to the crime of armed robbery, which requires the State to prove only his general intent to assist in the crime's commission. He explains:

[T]he party to a crime law, Wis. Stat. § 939.05 is not a specific intent statute — it requires only that the defendant know "that another person is committing or intends to commit the crime," and "have the purpose to assist the commission of that crime." Wis JI — Ceiminal 400.
The state wants it both ways. By charging Mr. Lasky as party to the crime, rather than as a principal, the state relieved itself of the burden of proving that [Lasky] had a specific intent to steal. Yet, when faced with the prohibition on the state prosecution imposed by Wis. Stat. § 939.71, it relies on specific intent to avoid that prohibition.
The state charged Mr. Lasky with being party to the crime of armed robbery ... converting his crime to one of general intent. Because the charge does not require "proof of a fact for conviction which the other [the federal statute] does not require," Mr. Lasky's prosecution was prohibited by the clear and unambiguous language of § 939.71.

¶ 27. We reject Lasky's argument that because he was charged as a party to the crime, we should compare the federal and state crimes differently. To successfully prosecute Lasky for armed robbery, party to a crime, the State was required to prove that either Lasky or his father had the specific intent to steal. See Wis. Stat. § 939.05(2). Assuming, as Lasky does, that the State's theory was that Lasky intentionally aided and abetted his father in committing armed robbery, contrary to § 939.05(2)(b), we note that the State still would have been required to prove that Lasky's father had specific intent to steal. See WI JI — Criminal 400.

¶ 28. Because we have concluded that one of the elements of both aggravated bank robbery and armed robbery requires "proof óf a fact for conviction which the other does not require," we conclude that Lasky's state prosecution for armed robbery is not barred by Wis. Stat. § 939.71.

III. Whether Lasky's prosecution violates fundamental fairness

¶ 29. Lasky argues with some persuasion that his conviction should be overturned in the interest of justice because prosecuting him in state court after he was convicted in federal court for "substantially the same acts" is fundamentally unfair. He notes that courts in other jurisdictions have "prohibited state prosecutions without benefit of statute, by construing state constitutional double jeopardy protections, or by applying a due process, balancing of interests test." In effect, Lasky argues that Wisconsin law on prosecutions by dual sovereigns should be changed.

¶ 30. In response, the State argues that Lasky waived this argument by failing to raise it in the circuit court. Alternatively, the State suggests that Lasky's recourse lies with the legislature, stating "this court should not assume the role of the state legislature and place restrictions on successive prosecutions beyond those already provided by Wis. Stat. § 939.71."

¶ 31. Even if we were to address this argument on its merits, we conclude that Lasky's recourse lies with the legislature because we are not empowered to rewrite legislation. See State v. Hall, 207 Wis. 2d 54, 90, 557 N.W.2d 778 (1997) ("It is the legislature's function to amend the statute where amendment is found necessary. . . . The checks and balances needed to sustain a democratic government stay our hands from the pen.").

¶ 32. Additionally, our supreme court has held that double jeopardy questions under the Wisconsin Constitution are governed by applicable decisions of the United States Supreme Court. State v. Robe, 96 Wis. 2d 48, 61 n.7, 291 N.W.2d 809 (1980). Also, the court of appeals is bound by prior decisions of the Wisconsin Supreme Court. State v. Lossman, 118 Wis. 2d 526, 533, 348 N.W.2d 159 (1984). Therefore, we reject Lasky's argument and apply Wis. Stat. § 939.71 as written.

By the Court. — Judgment affirmed.

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

       The applicable parts of 18 U.S.C. § 2113 provide:
      (a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or
      Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny—
      Shall be fined under this title or imprisoned not more than twenty years, or both.

        (d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both.

       Wisconsin Stat. § 943.32 provides in relevant part:
      (1) Whoever, with intent to steal, takes property from the person or presence of the owner by either of the following means is guilty of a Class C felony:
      (a) By using force against the person of the owner with intent thereby to overcome his or her physical resistance or physical power of resistance to the taking or carrying away of the property; or
      (b) By threatening the imminent use of force against the person of the owner or of another who is present with intent thereby to compel the owner to acquiesce in the taking or carrying away of the property.
      (2) Whoever violates sub. (1) by use or threat of use of a dangerous weapon, a device or container described under s. 941.26(4)(a) or any article used or fashioned in a manner to lead the victim reasonably to believe that it is a dangerous weapon or such a device or container is guilty of a Class B felony.

       According to Lasky, the weapons were actually plastic toy guns.

        See Carolyn Kelly MacWilliam, Annotation, Conviction or Acquittal in Federal Court as Bar to Prosecution in State Court for State Offense Based on Same Facts — Modern View, 97 A.L.R. 5th 201, § 6f (2002) ("Although there is no federal constitutional prohibition against a state prosecution of a defendant for crimes arising out of the same criminal transaction giving rise to federal charges for which the defendant has already stood trial in federal court, a number of states have enacted statutes that provide that a prior conviction or acquittal in some other jurisdiction is a proper defense to a subsequent trial within the state for similar crimes arising out of the same transaction.").

       Lasky does not argue that his conviction for battery would be barred pursuant to Wis. Stat. § 939.71, although he objects to that conviction on fundamental fairness grounds.

       It is not clear from the record whether the federal court alleged that Lasky used a dangerous weapon to assault a person or to put the person's life in danger.

       Wisconsin Stat. § 939.05(2) provides that a person is concerned in the commission of a crime if the person (a) directly commits the crime; (b) intentionally aids and abets the commission of it; or (c) is a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it.

       Having concluded that one of the state crime elements requires proof of a fact not required by the federal crime, we decline to address whether there may be other state crime elements that are also unique. See Clark v. Waupaca County Bd. of Adj., 186 Wis. 2d 300, 304, 519 N.W.2d 782 (Ct. App. 1994).

       For example, Lasky cites Justice Black's dissent in Bartkus v. Illinois, 359 U.S. 121, 150 (1959) (Black, J., dissenting).

       Lasky cites as examples the following cases: Commw. v. Cepulonis, 373 N.E.2d 1136 (Mass. 1978); Commw. v. Mills, 286 A.2d 638 (Pa. 1971); State v. Hogg, 385 A.2d 844 (Vt. 1978).