author: DYKMAN, J.

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

      No. 01-2185-CR.

      Submitted on briefs March 14, 2002.

      Decided June 13, 2002.

    2002 WI App 177
    (Also reported in 649 N.W.2d 325.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Paul LaZotte, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James Doyle, attorney general, and Sandra L. Nowack, assistant attorney general.
    Before Dykman, Roggensack and Lundsten, JJ.

       Petition to review denied 9-26-02.

   DYKMAN, J.

¶ 1. Leonard Collins appeals from a judgment of conviction for attempted first-degree intentional homicide as a persistent repeater. Based on previous convictions in Missouri for "murder second degree" and Illinois for "second degree murder," the circuit court sentenced Collins to life in prison without the possibility of parole under Wis. Stat. § 939.62(2m)(c) (1997-98). Collins argues that his sentence should be commuted under Wis. Stat. § 973.13 because the circuit court never determined whether the crime he committed in Illinois is "comparable" within the meaning of § 939.62(2m)(d) to a "serious felony" under § 939.62(2m)(a)2m.a-c.

¶ 2. We agree with Collins that Wis. Stat. § 939.62(2m)(d) requires circuit courts to determine independently whether an out-of-state crime is comparable to a Wisconsin "serious felony," even if the defendant admits that he or she is a persistent repeater. However, because we can conclude as a matter of law that "second degree murder" in Illinois would be a "serious felony" if committed in Wisconsin, we affirm.

BACKGROUND

¶ 3. On February 8, 2000, Leonard Collins stabbed a woman multiple times with a knife in a parking lot on Madison's West side. The victim survived, and the State charged Collins with both attempted first-degree intentional homicide while using a dangerous weapon and first-degree reckless injury. See Wis. Stat. §§ 939.32(l)(a), 940.01(1) and 940.23(1). In addition, the State alleged that Collins was a "persistent repeater" under Wis. Stat. § 939.62(2m)(b)l because he had been previously convicted of two murders in other states.

¶ 4. Collins entered a plea of no contest to attempted first-degree intentional homicide and the State dismissed the reckless injury charge. Before accepting his plea, the circuit court informed Collins that he would be convicted of attempted first-degree intentional homicide with a dangerous weapon and as a persistent repeater, which would mean that he would be sentenced to life imprisonment "without the possibility of extended supervision."

¶ 5. The State presented judgments of conviction for "murder second degree" from Missouri and "second degree murder" from Illinois. When the court asked Collins if he was disputing the convictions, Collins replied, "Those are my convictions." Finally, the court asked Collins, "Do you agree that the State could prove that you committed this offense with a dangerous weapon and that you are a persistent repeater? Do you agree they could prove that?" Collins stated, "Yes." The court accepted Collins's plea and convicted him.

¶ 6. The court determined after a trial that Collins had failed to prove that he was "not responsible because of a mental disease or defect," and sentenced Collins to life in prison without parole, as required by Wis. Stat. § 939.62(2m)(c). The court denied Collins's motion for postconviction relief and he appeals.

DECISION

¶ 7. Collins contends that there is "no factual basis" for concluding that his Illinois conviction for "second degree murder" would constitute a "serious felony" under Wis. Stat. § 939.62(2m)(a)2m.d, and therefore the circuit court erred when it sentenced him as a persistent repeater. The resolution of this issue requires interpretation of Wis. Stat. §§ 939.62 and 973.12. Statutory interpretation is an issue of law that we review de novo. State v. Campbell, 2002 WI App 20, ¶ 4, 250 Wis. 2d 238, 642 N.W.2d 230.

¶ 8. Under Wis. Stat. § 939.62(2m)(b)l, the State may charge a defendant as a "persistent repeater" if he or she has been previously convicted of two or more "serious felonies." Upon conviction for the third "serious felony," § 939.62(2m)(c) provides that "the term of imprisonment ... is life imprisonment without the possibility of parole or extended supervision."

¶ 9. Wisconsin Stat. § 939.62(2m)(a)2m.a-c provides a list of crimes designated as "serious felonies," which includes intentional homicide, reckless homicide, aggravated battery, and many others. In addition to these specific crimes, § 939.62(2m)(a)2m.d provides that "serious felony" means: "A crime at any time under federal law or the law of any other state or, prior to April 28, 1994, under the law of this state that is comparable to a crime specified in subd. 2m. a., b. or c." (Emphasis added.)

¶ 10. Collins argues that Wis. Stat. § 939.62(2m)(d) was violated because it was never established that his Illinois conviction is "comparable" to one of the "serious felonies" fisted in § 939.62(2m)(a)2m.a-c. The State does not dispute that neither it nor the circuit court demonstrated that Collins's Illinois conviction was "comparable" to a "serious felony" under § 939.62(2m)(d). Rather, the State responds that it was relieved of its burden to prove any aspect of Collins's status as a persistent repeater because Collins admitted this at the plea hearing. It points to Wis. Stat. § 973.12(1), which provides that § 939.62 applies "[i]f the prior convictions are admitted by the defendant or proved by the state, he or she shall be subject to sentence under s. 939.62." (Emphasis added.) The State contends that Collins admitted his Illinois conviction could be used to establish that he was a persistent repeater when he:

(a) entered knowing and voluntar[y] pleas to the charge and persistent repeater enhancer; (b) admitted the underlying convictions; (c) admitted that the state could prove his persistent repeater status; (d) admitted that he understood the nature and consequences of persistent repeater status; and (e) offered evidence of the crimes on his own behalf.

¶ 11. We agree that Collins admitted he was convicted of "Second Degree Murder" in Illinois and that the State could prove he was a persistent repeater. And in most cases, an admission of the prior convictions would be sufficient to establish that a defendant is a persistent repeater under Wis. Stat. § 939.62(2m) and for the circuit court to sentence him or her accordingly. As the State notes, a no contest plea to a charge containing a persistent repeater allegation is an admission to all the material facts alleged in the charging document so long as the "totality of the record" demonstrates that the defendant "understood the nature and consequences of the charges against him and the consequences of his plea." State v. Liebnitz, 231 Wis. 2d 272, 287, 603 N.W.2d 208 (1999); see also State v. Rachwal, 159 Wis. 2d 494, 511, 465 N.W.2d 490 (1991).

¶ 12. However, when the persistent repeater allegation is based at least in part on an out-of-state conviction, admitting the past convictions is not sufficient because the circuit court must still determine whether the out-of-state conviction is "comparable" to one of Wisconsin's "serious felonies." Wisconsin Stat. § 939.62(2m)(d) provides that an out-of-state conviction is "comparable ... only if the court determines, beyond a reasonable doubt, that the violation relating to that conviction would constitute a felony specified under par. (a)lm.a. or 2m.a., b. or c. if committed by an adult in this state."

¶ 13. Even if a defendant "admits" that his or her violation is "comparable," this does not relieve the circuit court of its obligation to make an independent determination. Whether a crime in another state would be a "serious felony" if committed in Wisconsin is a legal, not a factual question. See State v. Burroughs, 2002 WI App 18, ¶¶ 23-27, 250 Wis. 2d 180, 640 N.W.2d 190 (treating the circuit court's conclusion regarding "comparability" of Alabama conviction for "assault with attempt to murder" to Wisconsin's crime against attempted first-degree intentional homicide as a question of law). Courts are generally not bound by a party's concession on issues of law. State v. Kruzycki, 192 Wis. 2d 509, 517, 531 N.W.2d 429 (Ct. App. 1995) (stating that a question of law "cannot be bargained away"). Rather, Wis. Stat. § 939.62(2m)(d) expressly requires a court to independently determine if an out-of-state conviction qualifies as a "serious felony." This provision does not permit courts to assume that a crime committed in another state would be a "serious felony" if committed in Wisconsin.

¶ 14. Therefore, while a defendant can admit that he or she was convicted of a particular crime in another state and thus relieve the State of its burden to prove this, a defendant's admission that an out-of-state crime is a "serious felony" does not relieve a court of its obligation to make an independent determination on this issue. To hold otherwise would permit a court to base a persistent repeater enhancement on an out-of-state disorderly conduct conviction, so long as that defendant "admitted" that disorderly conduct in the other state would be a "serious felony" in Wisconsin. We therefore conclude that the circuit court erred when it did not determine whether Collins's Illinois violation would be a "serious felony" if committed in Wisconsin.

¶ 15. However, because Collins has admitted that he was convicted of "second degree murder" in Illinois, and whether an out-of-state crime is "comparable" to a "serious felony" under Wis. Stat. § 939.62(2m) is a question of law, we may determine independently if "second degree murder" in Illinois would be a "serious felony" if committed in Wisconsin. In Burroughs, a case that also involved the application of Wis. Stat. § 939.62(2m)(d), we made this determination by comparing the elements of the out-of-state crime ("assault with intent to murder") with those of the Wisconsin crime for attempted first-degree intentional homicide, and then by examining how the other state's judiciary had interpreted the elements of its crime. 2002 WI App 18 at ¶¶ 25-27.

¶ 16. "Second Degree Murder" is prohibited in Illinois by III. Rev. St. 1987, ch. 38 § 9-2, which provides in part:

Second Degree Murder, (a) A person commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraphs (1) or (2) of subsection (a) of Section 9-1 of this Code and either of the following mitigating factors are present:
(1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed; or
(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.
(b) Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.

Section 9-1, in turn, provides in relevant part:

(a) A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:
(1) he either intends to kill or do great bodily harm to that individual or another or knows that such acts will cailse death to that individual or another; or
(2) he knows that such acts create a strong probability of death or great bodily harm to that individual or another.

¶ 17. Therefore, to obtain a conviction for second-degree murder, the State must prove that the defendant either intended to kill or cause great bodily harm to the victim or knew that his or her acts would create a strong probability of death or great bodily harm. See People v. Willis, 577 N.E.2d 1215, 1224-25 (Ill. App. Ct. 1991). The mitigating factors recognized by the statute are: (1) a sudden and intense passion resulting from serious provocation; or (2) an actual, but unreasonable belief that circumstances required use of deadly force as a means of self-defense. People v. Salgado, 678 N.E.2d 648, 658 (Ill. App. Ct. 1997); People v. Fausz, 449 N.E.2d 78, 80 (Ill. 1983).

¶ 18. Illinois's second-degree murder crime is substantially similar to Wisconsin's second-degree intentional homicide under Wis. Stat. § 940.05 (1987-88). An individual commits second-degree intentional homicide when he or she intentionally causes the death of another but does so in the context of certain mitigating circumstances, such as adequate provocation or unnecessary defensive force. See Wis. Stat. §§ 940.01(2) (1987-88) and 940.05(1) (1987-88). Both Wisconsin and Illinois include in the definition of intent knowledge that the victim will die as a result of the conduct. Compare Wis. Stat. § 939.23(4) (1987-88) with Ill. Rev. St. 1987 ch. 38 § 9-1.

¶ 19. Although there are several differences between the Illinois crime of second-degree murder and the Wisconsin crime of second-degree intentional homicide, none of them work to invalidate Collins's sentence as a persistent repeater. One difference between the Wisconsin and Illinois statutes is that second-degree intentional homicide requires intent to kill while second-degree murder requires only intent to do great bodily harm. But even if the jury in the Illinois case concluded only that Collins had intended to do great bodily harm, this would, at minimum, be considered aggravated battery under Wis. Stat. § 940.19(2) (1987-88), which is also a "serious felony" under the persistent repeater statute. See Wis. Stat. § 939.62(2m)(a)2m.b and d.

¶ 20. Also, second-degree murder in Illinois requires only that the defendant know that there is "a strong probability" of death or great bodily harm while second-degree intentional homicide in Wisconsin requires that the defendant know his or her conduct is "practically certain" to cause the victim's death. Compare Wis. Stat. § 939.23(4) (1987-88) with Ill. Rev. St. 1987 ch. 38 § 9-1. But an individual who killed another with the knowledge that there was "a strong probability" that the victim would die could be convicted of second-degree reckless homicide under Wis. Stat. § 940.06 (1987-88), which is also a "serious felony," as that statute requires only that the defendant was aware that his or her conduct created "an unreasonable and substantial risk of death or great bodily harm." See Wis. Stat. §939.24(1) (1987-88); Wis JI — Criminal 1060. Although the Illinois judiciary does not appear to have precisely defined the meaning of "strong probability," it has repeatedly indicated that it is a more demanding standard than is recklessness. See, e.g., People v. Sims, 617 N.E.2d 411, 418 (Ill. App. Ct. 1993).

¶ 21. We need not address the differences between the mitigating circumstances with respect to second-degree murder in Illinois and second-degree intentional homicide in Wisconsin. To obtain a conviction for either crime, the State must prove the defendant satisfied the elements of first-degree murder (or intentional homicide). Therefore, to the extent that Illinois has created statutory mitigating factors that Wisconsin has not, this only means that an act that would be a second-degree murder in Illinois would be a first-degree intentional homicide in Wisconsin. And to the extent that Wisconsin has created additional mitigating circumstances that Illinois has not, this means only that someone convicted of first-degree murder in Illinois would, in Wisconsin, be convicted of second-degree intentional homicide. It would have no effect on those convicted of second-degree murder in Illinois. '

¶ 22. Based on the above discussion, we can conclude as a matter of law that Collins's conviction for second-degree murder in Illinois would also be a "serious felony" under Wis. Stat. § 939.62(2m) if it had been committed in Wisconsin. Collins was therefore properly sentenced as a persistent repeater.

¶ 23. As the above discussion illustrates, determining whether a crime in another state is "comparable" to a "serious felony" will not always be a simple task, as states often vary in how they define particular crimes. Since the underlying question is whether the defendant's conduct in the other state would be a serious felony if performed in Wisconsin, cf. Campbell, 2002 WI App 20 at ¶ 10, one way to determine that an out-of-state crime is comparable may be to seek an admission from the defendant of the facts upon which the out-of-state conviction was based. That way, the circuit court will not have to consider all of the possible ways that the out-of-state crime may differ from the Wisconsin crime. If the defendant's conduct would have been a "serious felony" in Wisconsin, then the court need not even consider the elements of the crime in the other state.

¶ 24. Of course, in many instances, the defendant will not admit to the past conviction, much less the conduct upon which the conviction was based. In those cases, if the out-of-state conviction was entered after a guilty or no contest plea, the circuit court may consider as admitted the facts that were alleged in the charging instrument, assuming that the State has sufficiently proven the conviction itself and has obtained the necessary documents from the record in the out-of-state case. See id. at ¶ 8; see also State ex rel. Skinkis v. Treffert, 90 Wis. 2d 528, 539, 280 N.W.2d 316 (Ct. App. 1979). If the underlying facts of the previous conviction are unknown, however, the circuit court must carefully determine whether the out-of-state crime is "comparable" by comparing the out-of-state crime's elements and that state judiciary's interpretation of those elements with those of the Wisconsin crime. If this examination demonstrates that, by being convicted of the out-of-state crime, the defendant necessarily engaged in conduct that would be a "serious felony" if committed in Wisconsin, the defendant may be sentenced as a persistent repeater. In some instances this could be a complicated exercise, but persistent repeater status carries with it a requirement that circuit courts sentence defendants to life in prison without the possibility of parole. When the interests at stake are so great, the need for accurate decisionmaking is heightened. We cannot conclude that Wis. Stat. § 939.62(2m)(d), by recognizing this need, has imposed an unreasonable burden.

By the Court. — Judgment affirmed.

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

       At the beginning of the trial, Collins's attorney requested a continuance based on information that she had discovered that Collins suffered from post-traumatic stress disorder as a result of his experiences as a soldier during the Vietnam War. The circuit court denied the request, and Collins does not challenge this decision on appeal.

       Collins does not challenge the use of his Missouri conviction to establish that he is a persistent repeater.

       Wisconsin Stat. § 939.62(2m)(a)2m.a-c. classifies the following crimes as "serious felonies": first-degree intentional homicide; first-degree reckless homicide; felony murder; second-degree intentional homicide; homicide by intoxicated use of a vehicle or firearm; aggravated battery; performing a "partial birth abortion;" aggravated battery to an unborn child; mayhem; first-degree sexual assault; second-degree sexual assault; taking hostages; kidnapping; causing death by tampering with household products; arson; armed burglary; carjacking; armed robbery; assault by a prisoner; soliciting a child to commit a felony; use of a child to commit a Class A felony; and manufacture, distribution or delivery of a controlled substance, or possession with intent to manufacture, distribute or deliver, if the offense is punishable by a maximum prison term of thirty years or more. See Wis. Stat. § 939.62(2m)(a)2m.a and b. In addition, the same crimes that are classified as "serious child sex offenses" are also classified as "serious felonies." Section 939.62(2m)(a)2m.b.

       Collins's attorney at the plea hearing also agreed with the State that "the defense is willing to stipulate to the facts that form the basis of persistent repeater." The substance of these facts, however, was never discussed at the hearing and Collins did not admit to the facts that formed the basis for his out-of-state convictions.

       This view is consistent with State v. Campbell, 2002 WI App 20, 250 Wis. 2d 238, 642 N.W.2d 230, which was decided the same week as State v. Burroughs, 2002 WI App 18, 250 Wis. 2d 180, 640 N.W.2d 190. In Campbell, the issue involved how to determine whether a "crime" committed in another state would be a felony if committed in Wisconsin for the purpose of the ban on felony possession of a firearm. See Wis. Stat. § 941.29(1)(b) (prohibiting a person from possessing a firearm if he or she has been "[c]onvicted of a crime elsewhere that would be a felony if committed in this state").
      We concluded that because the legislature has defined "crime" in chapters 939 through 948 as "conduct which is prohibited by state law and punishable by fine or imprisonment or both," the circuit court was not limited to comparing elements of statutes. Campbell, 2002 WI App 20 at ¶ 7. Instead, we concluded that it was the underlying conduct that controlled whether the out-of-state conviction would be considered a felony in Wisconsin. Id. at ¶ 10.
      Wisconsin Stat. § 939.62(2m)(d) uses the phrase "violation relating to that conviction" instead of "crime," but we do not view this difference as indicating a different intent. See BlacK's Law DiCtionary (7th ed. 1999) (defining violation as an "act of breaking or dishonoring the law"). Generally, the legislature has indicated a focus on conduct when considering out-of-state convictions. See Wis. Stat. §§ 939.62(3) (b) (referring to "crimes committed in other jurisdictions"), 940.43(5) (stating that an individual convicted of intimidating a witness is guilty of a Class D felony if the defendant has previously been convicted of an act in another state that would violate the Wisconsin intimidation statutes), 948.13(l)(b) (stating that a "crime" committed in another state is a "serious child sex offense" if it is comparable to a "crime" in Wisconsin classified as a "serious child sex offense"). But see Wis. Stat. § 961.48(3) (stating that an offense is a second or subsequent offense if offender has been previously "convicted under. .. any statute... of any state relating to controlled substances") (emphasis added).

        However, as we suggested in Campbell, although the focus regarding out-of-state convictions is on the underlying conduct, this does not mean that the only way to prove that conduct is an investigation of the factual background of each case. See Campbell, 2002 WI App 20 at ¶ 10 n.3. Rather, when an individual is convicted under a statute that has elements equivalent to those in a Wisconsin statute and those elements have been interpreted by the other state's judiciary to have the same meaning, then this necessarily implies that the defendant's conduct in the other state would also be prohibited in Wisconsin, even if the particular facts of the out-of-state conviction are unknown.

       Collins was charged under the 1987 version of the Illinois statutes. Although both first- and second-degree murder have been renumbered since then, the substance of the relevant provisions of both statutes remain unchanged. See 720 ILCS § 5/9-1 and 2 (West 2000).

       Before 1987, second-degree murder was called "voluntary manslaughter" by the Illinois legislature. However, case law pertaining to manslaughter is applicable to first-degree and second-degree,murder. People v. Lewis, 594 N.E.2d 414, 419 (Ill. App. Ct. 1992).

       Wisconsin Stat. § 940.19(2) (1987-88) provides: "Whoever causes great bodily harm to another by an act done with intent to cause great bodily harm to that person or another with or without the consent of the person so harmed is guilty of a Class C Felony."

       WISCONSIN Stat. § 940.19(2) (1987-88) has since been renumbered and amended to include intent to cause "substantial bodily harm" in addition to intent to cause "great bodily harm." See Wis. Stat. § 940.19(5). Because this change makes the statute broader, we have no difficulty concluding that § 940.19(2) (1987-88) is comparable to § 940.19(5).


source: Caselaw Access Project

author: FINE, J.

license: Public Domain

text:
    Ryan J. Enea, a minor by his Guardian ad Litem Charles W. Jones, Robin R. Enea, and John J. Enea, Plaintiffs-Appellants, Milwaukee Printing Pressmen and Assistants' Local No. 7 Health Plan, Subrogated-Plaintiff-Respondent, v. James G. Linn, M.D., St. Mary's Hospital of Milwaukee and Wisconsin Patients Compensation Fund, Defendants-Respondents.
    Court of Appeals

      No. 01-2781.

      Submitted on briefs May 7, 2002.

    Decided June 18, 2002.

    2002 WI App 185
    (Also reported in 650 N.W.2d 315.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Charles W. Jones of Charles W. Jones & Associates, Milwaukee.
    On behalf of the defendants-respondents, James G. Linn, M.D.; St. Mary's Hospital of Milwaukee, and Wisconsin Patients Compensation Fund, the cause was submitted on the joint brief of Donald K. Schott, Jeffrey O. Davis, and Cory L. Nettles of Quarles & Brady LLP, Milwaukee; James R. Gutglass and Sharon R. Long of Gutglass, Erickson, Bonville, Seibel & Falkner, S.C.,
      Milwaukee; and Donald Peterson and Michael J. Wirth of Peterson, Johnson & Murray, S.C., Milwaukee.
    On behalf of the subrogated plaintiff-respondent, Milwaukee Printing Pressmen and Assistants' Local No. 7 Health Plan, the cause was submitted on the brief of Richard P. Carr and Sarah Ann Huck of Reinhart Boerner Van Deuren S.C., Milwaukee.
    Before Fine, Schudson and Peterson, JJ.

       Petition to review denied 9-26-02.

   FINE, J.

¶ 1. Ryan J. Enea, a minor, and his parents, Robin R. Enea and John J. Enea, appeal from the trial court's order granting summary judgment in favor of James G. Linn, M.D., St. Mary's Hospital of Milwaukee, and the Wisconsin Patients Compensation Fund. The Eneas filed a medical malpractice claim against the defendants after Ryan was born with severe brain damage. The trial court concluded that the Eneas could not establish the element of causation because their expert, William L. Semler, M.D., an obstetrician/gynecologist, was not qualified to opine about Ryan's neurological injuries. The Eneas claim that the trial court erred because, while Dr. Semler was not qualified to make a neurological diagnosis, he was qualified to testify regarding the medical processes that caused Ryan's injuries. We agree, and reverse for further proceedings.

rH

¶ 2. Mrs. Enea has a rare medical condition called didelphys uterus, or double uterus. Pregnant women with didelphys uterus have a high risk of premature labor and an abnormal presentation.

¶ 3. When Mrs. Enea was pregnant with Ryan, her membranes ruptured prematurely at thirty-three weeks. Mrs. Enea called her obstetrician, James G. Linn, M.D. The switchboard operator at St. Mary's Hospital told Mrs. Enea that Dr. Linn was not available but that the operator would page him. When Mrs. Enea did not hear from Dr. Linn, she went to St. Mary's Hospital.

¶ 4. Dr. Linn alleges that he was not present for labor and delivery because a resident called him at home and told him that "Mrs. Enea was not in labor, that she was uncomfortable [,] and that the fetal heart rate was normal." Dr. Linn contends that he told the resident that he was unavailable, that he would call back in "a couple of hours," and that "if there was any problem the resident" should call the on-call physician.

¶ 5. In the delivery room, Nancy Grant, M.D., a third-year resident, evaluated Mrs. Enea's condition. Dr. Grant decided to perform an emergency cesarean section, but changed her mind when an examination revealed that Mrs. Enea was fully dilated. Ryan was born shortly thereafter.

¶ 6. Ryan was not breathing when he was born. The attending personnel administered CPR to resuscitate Ryan. According to the hospital records, resuscitation was "very prolonged" and included bagging with a mask and oxygen, chest compressions, intubation, epinephrine, sodium bicarbonate, and albumin administered through an umbilical vein catheter. Additionally, a neonatologist estimated that Ryan lost "at least" one-third of his blood volume. Ryan has serious brain damage.

¶ 7. The Eneas filed a medical malpractice suit, alleging that Dr. Linn and St. Mary's Hospital were negligent in caring for and treating Mrs. Enea and Ryan. Specifically, the Eneas claimed that the defendants were negligent because they failed to perform a cesarean section and that if they had performed a cesarean section, sufficient blood-enriched oxygen would have reached Ryan's brain.

¶ 8. The defendants subsequently filed a motion to dismiss on the ground that the Eneas violated the trial court's scheduling order. The trial court found that the Eneas' first attorney had committed an "egregious" violation when he failed to name witnesses, itemize damages, and provide a special permanency report. As a sanction, the trial court limited the Eneas to one expert witness, William L. Semler, M.D., an obstetrician/gynecologist, on the issue of causation.

¶ 9. The defendants deposed Dr. Semler. Dr. Sem-ler testified that Ryan was injured because: "[t]he baby's blood was squeezed out into the placenta because of the tetanic-like contractions. So the baby was born without much blood in its system; therefore, it did not feed its brain." Dr. Semler also opined that the "tetanic-like contractions ... could have been prevented with anesthesia and the baby delivered by C-section." Dr. Semler testified that he formed this opinion after reviewing the report of Stephen Ragatz, M.D., a neona-tologist. Dr. Semler admitted that a neonatologist or a neurologist diagnoses neurological injuries; Dr. Semler opined that he could not, to a reasonable degree of medical certainty, determine the timing of when Ryan suffered significant brain injury because, as he explained, "I'm not a neonatologist or a neuropathologist, so I wouldn't know what they've come up with as far as the timing."

¶ 10. The defendants sought summary judgment based on Dr. Semler's testimony. They claimed that the Eneas could not prove the elements of a medical malpractice claim because Dr. Semler was not qualified to testify why Ryan was injured. The trial court granted summary judgment, concluding that the Eneas could not establish the element of causation because "we need some expert testimony about" neurological injuries and "the record is clear to me that obstetricians do not diagnose or treat neurological injuries."

II

¶ 11. Our review of the trial court's grant of summary judgment is de novo, and we apply the same standards as did the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-317, 401 N.W.2d 816, 820-821 (1987). First, we examine the pleadings to determine whether a proper claim for relief has been stated. Id., 136 Wis. 2d at 315, 401 N.W.2d at 820. If the complaint states a claim and the answer joins the issue, our inquiry then turns to whether any genuine issues of material fact exist. Id. Wisconsin Stat. Rule 802.08(2) sets forth the standard by which summary judgment motions are to be judged:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

¶ 12. The Eneas argue that summary judgment was improper because Dr. Semler was qualified to testify about the cause of Ryan's injury. They claim that it was proper for Dr. Semler to rely on the medical records and reports of other experts to reach the conclusion that a cesarean section would have prevented Ryan's injuries and that "[t]he trial court's findings rest on the faulty premise that since obstetricians do not typically make a neurological diagnosis in a clinical setting, an obstetrician will not be allowed to testify as to what medical practice caused Ryan Enea's injuries." We agree.

¶ 13. A witness qualifies as an expert "by knowledge, skill, experience, training, or education." Wis. Stat. Rule 907.02. Whether a witness is qualified to render an expert opinion is within the trial court's discretion. State v. Watson, 227 Wis. 2d 167, 186, 595 N.W.2d 403, 412 (1999). We will affirm a discretionary determination if it appears from the record that the trial court: (1) examined the relevant facts; (2) applied a proper standard of law; and (3) using a demonstrative rational process, reached a conclusion that a reasonable judge could reach. Loy v. Bunderson, 107 Wis. 2d 400, 414-415, 320 N.W.2d 175, 184 (1982).

¶ 14. Here, the trial court erroneously confused the issue of the diagnosis of Ryan's neurological injuries with the issue of the cause of those injuries. Thus, for the reasons set forth below, we agree that although Dr. Semler was not qualified to diagnose Ryan's neurological injuries, Dr. Semler was qualified to testify about the cause of what the neonatologist identified as Ryan's neurological damage.

¶ 15. First, expert testimony was not necessary to establish the simple fact that Ryan was injured. A detailed ultrasound of Ryan at seventeen weeks was "normal." Ryan now has severe brain damage — Ryan's mother testified at her deposition that Ryan: (1) does not have a suck, gag, or swallow reflex and, that as a result, he will need to be fed by tube for the rest of his life; (2) cannot hold himself up well; and (3) suffers from respiratory problems and requires oxygen support "most of the time." It is thus readily apparent to even the most medically inexperienced juror that Ryan is severely injured. Accordingly, expert testimony is not required to prove that Ryan is damaged. See State v. Whitaker, 167 Wis. 2d 247, 255, 481 N.W.2d 649, 652 (Ct. App. 1992) (expert testimony is required only if the issue to be decided is beyond the general knowledge and experience of the average juror).

¶ 16. Second, it was proper for Dr. Semler to rely on the reports of other medical experts to form an opinion on the cause of Ryan's neurological injuries. "The standard in this state for the admission of expert testimony is not stringent." Martindale v. Ripp, 2001 WI 113, ¶ 68, 246 Wis. 2d 67, 629 N.W.2d 698. An expert witness, who is sufficiently qualified under Wis. Stat. Rule 907.02, may rely on evidence that is not admissible "[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." See Wis. Stat. Rule 907.03. Specifically, medical experts may rely on the reports and medical records of others in forming opinions that are within the scope of their own expertise. See State v. Cadden, 56 Wis. 2d 320, 326, 201 N.W.2d 773, 775 (1972) ("[S]ince in their daily practice physicians normally rely on the facts and opinions of other experts, courtroom testimony, when based on the medical observations and findings of others, is sufficiently reliable to permit medical conclusions.").

¶ 17. According to Dr. Semler's deposition testimony, the report of Dr. Ragatz, a neonatologist, indicated that "[the tetanic-like contractions are] the etiology for the fact that the patient did have an exchange transfusion, where the blood is squeezed out of the baby hack into the blood vessels of the placenta." This report was inadmissible, however, because the trial court excluded it as a sanction. But, as we have seen, Dr. Semler can rely on Dr. Ragatz's report in forming his, Dr. Semler's, opinion as to the cause of Ryan's injuries, as those injuries were diagnosed by Dr. Ragatz, because the precise nature of those injuries was not material— Ryan was profoundly injured as any lay person could see.

¶ 18. Dr. Semler considered Dr. Ragatz's report and testified that damage occurred to Ryan in útero: "The baby's blood was squeezed out into the placenta because of the tetanic-like contractions. So the baby was born without much blood in its system; therefore, it did not feed its brain." Dr. Semler also testified that although he could not, based on his own expertise, testify about the exact nature and extent of Ryan's injury, he could determine to a reasonable degree of medical certainty that Ryan's injuries were caused by the failure to perform a cesarean section: "[Ryan] suffered in útero because of the tetanic-like contractions, which could have been prevented with anesthesia and the baby delivered by C-section." This testimony was proper. Thus, the trial court erred when it granted summary judgment. Accordingly, we reverse and remand for further proceedings.

By the Court. — Order reversed and cause remanded.

       The Milwaukee Printing Pressmen and Assistants' Local No. 7 Health Plan and the State of Wisconsin Department of Health and Family Services were joined in this case as subro-gated plaintiffs. The Health Plan filed a brief notifying this court that its interests are "aligned" with the Eneas and that it "does not oppose the Eneas' request that the Court reverse the circuit court's order for summary judgment." The Department submitted a letter notifying this court that it is not participating in the appeal and requesting that we remove the respondent designation from the caption. No party has objected. We therefore amend the caption to remove the respondent designation.

       "Tetany" is "[a]n abnormal condition characterized by periodic painful muscular spasms and tremors." American Heritage DICTIONARY 1855 (3d ed. 1992).

       WISCONSIN Stat. Rule 907.02 provides:
      Testimony by experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

       WisConsin Stat. Rule 907.03 provides:
      Bases of opinion testimony by experts. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.


author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Richard N. Konkol, Defendant-Appellant.

    Court of Appeals

      No. 01-2126-CR.

      Submitted on briefs January 2, 2002.

      Decided June 19, 2002.

    2002 WI App 174
    (Also reported in 649 N.W.2d 300.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Brian C. Hough of Robinson Law Firm of Appleton.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Carissa J. Kuecherer, assistant district attorney.
    Before Nettesheim, PJ., Brown and Snyder, JJ.

       Petition to review denied 9-3-02.

   BROWN, J.

¶ 1. In this OWI case, the State anticipated before trial what the theory of the defense would be and planned to rebut the theory by use of expert witness testimony. The issue we face on appeal, one of first impression in Wisconsin, is whether the State was required to disclose a known and anticipated rebuttal witness regardless of the statement in Wis. Stat. § 971.23(1)(d) (1999-2000) that the duty to disclose expert witnesses "does not apply to rebuttal witnesses or those called for impeachment only." We determine that the discovery statute places no duty on a prosecutor to list a rebuttal witness even if he or she knows before trial that the witness will be called. To put it bluntly, the defense takes its chances when offering a theory of defense and the State can keep knowledge of its legitimate rebuttal witnesses from the defendant without violating § 971.23(l)(d).

¶ 2. Richard N. Konkol's fourth conviction of OWI stems from his arrest on December 11, 2000. At trial, City of Menasha police officer Tim Seaver testified that he stopped Konkol because Konkol's vehicle had crossed the center line. Noticing that Konkol's eyes were bloodshot and that his breath smelled of alcohol, Seaver conducted field sobriety tests. Seaver then arrested Konkol and transported him to the police station. At the station, Konkol underwent an Intoximeter test and blew 0.12%. At the time, Konkol claimed to have consumed only one alcoholic drink before being pulled over. He was charged with operating while intoxicated and operating with a prohibited alcohol concentration.

¶ 3. Prior to trial, Konkol made a discovery demand that included a list of all witnesses and their addresses whom the district attorney intended to call at trial. At trial, the State's case-in-chief consisted of Seaver's testimony and the Intoximeter results. After the State rested, Konkol asserted his theory of defense that he had consumed only one alcoholic drink at a local restaurant and therefore could not have had a blood alcohol concentration of 0.12%. To corroborate his testimony, he called several individuals who were with him that evening, including the waitress and the bartender. They all supported his claim that he had consumed only one rum and coke.

¶ 4. In rebuttal, the State attempted to call an expert witness and made the following offer of proof:

[W]e can qualify her as an expert... in terms of the intoximeter machine itself, she's also qualified to perform calculations with respect to alcohol concentration and body given a variety of facts such as the defendant's weight, how much he has consumed as far as food, how much he has had to drink and when. Essentially, I want to .prove to the jury that it's impossible for the defendant to have a blood alcohol level of .12 when he's only consumed one drink.

¶ 5. Defense counsel objected to the State's rebuttal witness on the ground that the expert was not listed as a witness in the response to his discovery demand. The trial court concurred, stating that the prosecutor was trying to "get[] kind of around the discovery request here by couching this in terms of the rebuttal when actually it's not really rebuttal." The trial court reasoned that the State had anticipated the defense theory before trial and had known the expert would be called to testify. Therefore, the State had a duty to disclose the witness to prevent unfair surprise and prejudice.

¶ 6. The prosecutor responded that she had no idea before trial if Konkol's defense strategy would continue to be his "only one drink" assertion or whether he would present a different theory. As it turned out, the prosecutor argued, the expert's testimony would be proper rebuttal because it would directly respond to the credibility of Konkol's testimony that he only had one drink.

¶ 7. The trial court ruled against the State with the following comments:

I am not going to allow the testimony, I find it's a surprise, that it wasn't disclosed ahead of time, that this evidence could have been proffered during the case in chief, that this isn't a defense that is new to the prosecution, and whether [the district attorney] was going to use it as rebuttal after the conclusion of the defendant's case or during her case in chief here, that that should have been disclosed to [defense counsel].

¶ 8. Nevertheless, the trial court sua sponte suggested to the prosecutor that she would be allowed to put into evidence a blood alcohol chart that we have previously ruled is so accurate that judicial notice may be taken of its trustworthiness. See State v. Hinz, 121 Wis. 2d 282, 286-87, 360 N.W.2d 56 (Ct. App. 1984); see also Wis JI — Criminal 237. The trial court reasoned that the chart conveyed the same message that the testimony of the live witness would have provided. The prosecutor reluctantly agreed to use the chart instead of the witness. Konkol objected to the chart on the same grounds he objected to the expert, that it should have been part of the State's case-in-chief and he should have received notice of the State's intention to use it. The objection was overruled and the jury found Konkol guilty of operating a motor vehicle with a prohibited alcohol concentration.

¶ 9. On appeal, Konkol argues that the trial court erred by allowing the blood alcohol chart to go to the jury. In essence, he contends that the trial court's sua sponte suggestion to substitute the chart for the expert was a misuse of discretion that nullified the original ruling pertaining to the State's expert. In order to address this argument, we must first determine whether the trial court correctly ruled the expert could not take the stand because the State violated the discovery statute.

¶ 10. We thus arrive at the central question in this case, which is must the State disclose an expert witness it knows and anticipates using in rebuttal regardless of the discovery rule stating that the duty to disclose does not apply to rebuttal witnesses? This question has been raised in other jurisdictions, but has not been clearly addressed in Wisconsin. For the reasons set forth below, we determine that there is no duty on the part of the prosecutor to list legitimate rebuttal witnesses that he or she anticipates using at trial to counter the defendant's theory of defense.

¶ 11. The well-established rule in Wisconsin is that the State has no duty to provide the names of bona fide rebuttal witnesses regardless of any demand by the defendant. Lunde v. State, 85 Wis. 2d 80, 91, 270 N.W.2d 180 (1978). In Lunde, the defendant objected at trial to the admission of the rebuttal testimony of an informant when the State's pretrial notice setting forth the names and addresses of proposed witnesses did not include the informant's name. Relying on Wis. Stat. § 971.23(3)(a) (1976) and its exception for rebuttal witnesses, the court determined that the informant was a bona fide rebuttal witness. Lunde, 85 Wis. 2d at 91. He was not necessary for the State's case-in-chief and was only necessary and appropriate once the defendant took the stand and denied knowing the witness. Id. at 91-92.

¶ 12. The court in Lunde took no notice of the fact that the State must have known of the informant's existence prior to trial. While the prosecutor stated that he did not know where the witness was until after the trial commenced, id. at 85, this also was irrelevant to the decision. The main concern in Lunde was that the witness offered true rebuttal testimony and had not been held back from the State's case-in-chief for dramatic effect.

¶ 13. Another case on point is State v. Moriarty, 107 Wis. 2d 622, 321 N.W.2d 324 (Ct. App. 1982). Moriarty and an accomplice allegedly beat and robbed an acquaintance while riding in a car. Id. at 624. In his defense, Moriarty presented testimony of the accomplice who suggested that the victim's injuries resulted from a sudden stop while they were driving around the countryside. Id. at 626. On rebuttal, the prosecutor offered the victim's medical records into evidence to show that a sudden stop could not have caused the extensive injuries. Id. The defense objected because the records had not been supplied in response to the defense's discovery demand. Id.

¶ 14. On appeal, we agreed with the trial court that the question of the source of the victim's injuries was raised for the first time by the defense, and the records were offered only to impeach the accomplice's testimony in that regard. Id. at 628. Furthermore, we determined that the contents of the medical records simply constituted a statement by the victim's treating physician as to the nature and extent of the victim's injuries. Id. We concluded that under Wis. Stat. § 971.23(3)(a) (1979-80), the testimony of the physician himself on rebuttal would not have been barred. Id. In other words, the prosecutor would have had no duty to disclose the doctor before trial as long as his testimony was proper rebuttal.

¶ 15. We glean from Lunde and Moriarty that the focus of the disclosure inquiry is not on whether the State correctly anticipated the defense strategy beforehand, but on whether the proffered testimony is bona fide rebuttal evidence. Therefore, it is a logical extension of those cases to now recognize that the State has no duty to disclose a legitimate rebuttal witness, even when the State knows the defense strategy in advance and anticipates using the witness at trial. Professor LaFave has cited our discovery statute for precisely this proposition, observing that in Wisconsin "if the prosecution expects that the defendant will raise a certain contention that might call for rebuttal witnesses, it need not list those witnesses even if fairly certain as to who they will be." 4 Wayne R. LaFave, Criminal Procedure § 20.3(h) (2d ed. 1999) (citing Wis. Stat. § 971.23(l)(d)).

¶ 16. Sound policy reasons support our holding that the State should not be barred from putting on legitimate rebuttal evidence simply because it correctly anticipated the defense. Any contrary rule would cause considerable delay and confusion in the trial process. First, it would require a prosecutor to assemble and list all possible rebuttal witnesses in anticipation of defense strategies that may or may not be presented at trial. This would needlessly protract the entire trial process. Furthermore, if the prosecutor presented in the casein-chief evidence that was directed to a defense theory which was never advanced during the trial, the jury would view the prosecutor's efforts, at best, as a waste of time and, at worst, as disingenuous, untrustworthy and, perhaps, "piling-on."

¶ 17. Konkol asserts that to admit such evidence results in trial by ambush "where neither side of the lawsuit knows until the actual day of trial what the other side will reveal in the way of witnesses or facts." Carlson Heating, Inc. v. Onchuck, 104 Wis. 2d 175, 180, 311 N.W.2d 673 (Ct. App. 1981). We disagree. Our discovery statute does not require a defendant to divulge the details of his or her own case. Once a defendant presents a theory of defense, however, the credibility of that theory becomes an issue in the case. The defendant runs the risk that the State will rebut the defense theory with evidence of its own. This is certainly the approach Wisconsin applies to impeachment evidence; we see no reason not to apply the same approach to rebuttal evidence. We therefore conclude that the trial court erred in barring the State from using its expert as a rebuttal witness on the basis of nondisclosure.

¶ 18. Thus, the only other basis for barring the witness would be that she was not a bona fide rebuttal witness. The trial court has considerable discretion in controlling evidence to be admitted in rebuttal. King v. State, 75 Wis. 2d 26, 42, 248 N.W.2d 458 (1977). We determine, however, that the trial court erred as a matter of law when it stated that the expert witness was "not really rebuttal" and "could have been proffered during the case in chief." Whether evidence could have been admitted in the State's case is not the test of admissibility of rebuttal evidence. The proper test under Lunde is whether the expert's testimony only became necessary and appropriate when Konkol presented his case-in-reply. Lunde, 85 Wis. 2d at 91-92; see also King, 75 Wis. 2d at 42 (rebuttal evidence should meet new facts put in by defendant).

¶ 19. We are convinced that the State satisfied that test in this case. The expert's testimony was proper rebuttal because it directly answered an issue introduced by Konkol's defense — that he could not have been intoxicated after only one drink. It should have come as no surprise to Konkol that the State would seek to defuse his "only one drink" theory with evidence that a man of his size would have had to consume five drinks to blow 0.12%. This is not trial by ambush; it is simply the State's response to an issue Konkol raised in his defense. The fact that the expert's testimony would have been useful in the case-in-chief does not preclude its use in rebuttal. Because the trial court should have let the expert testify, it follows that the trial court's alternate procedure of allowing the State to use the blood alcohol chart was not error.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. Although this case was originally a one-judge appeal, we ordered that this case be made a three-judge appeal pursuant to Wis. Stat. § 809.41(3). The attorney general elected to participate and filed a supplemental brief.

       The district attorney's brief saw the main issue as whether the trial court's admission of the blood alcohol chart in the State's rebuttal constituted unfair surprise in violation of the criminal discovery statute, Wis. Stat. § 971.23. The district attorney argued that the chart was so commonly used in OWI cases that its use should have been presumed by defense counsel. The attorney general argued that since the chart was equally accessible to both parties, it was not material information "within the custody or control of the State" as required by the statute, and was therefore not subject to disclosure under the statute. The attorney general also contended that the chart did not constitute "physical evidence" as required by the statute since it was not created specifically for a party in connection with a particular case. The attorney general further asserted that since the prosecutor did not intend to offer the physical evidence at the trial, as required by § 971.23(l)(g), disclosure was not necessary. While we realize that our response to these arguments are dicta, for what it is worth, we agree with the attorney general. While Konkol's brief could be read to suggest that admission of the chart violated § 971.23, we view the crux of his argument differently. We understand Konkol to argue that the trial court's sua sponte suggestion to use the blood alcohol chart was a misuse of discretion because it gutted the trial court's original ruling keeping out the expert evidence. Therefore, the proper focus by this court is not on the blood alcohol chart, but on Konkol's theory of why the chart was an attempt to skirt the violation of the discovery statute. As we hold, however, there was no violation.

        Compare State v. White, 444 P.2d 661, 667 (Wash. 1968) (holding that State need not disclose before trial expert witness who offers "genuine" rebuttal testimony) with McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 179 (Ind. 1993) (requiring disclosure of rebuttal witnesses that are known and anticipated before trial).

       In Caccitolo v. State, 69 Wis. 2d 102, 118, 230 N.W.2d 139 (1975), the supreme court suggested that it would be inappropriate to reserve a witness who would normally be used in the State's case-in-chief for rebuttal and that the use of such a witness for dramatic effect might make inapplicable the rule exempting disclosure of rebuttal witnesses.

       While defendants are required to present a witness list upon demand, Wis. Stat. § 971.23(2m)(a), they are not required to provide notice of the theory of defense, except for notice of alibi pursuant to § 971.23(8).

       For example, in Ranft v. Lyons, 163 Wis. 2d 282, 303, 471 N.W.2d 254 (Ct. App. 1991), we held that an insurance company need not disclose surveillance videotape it may have taken of an injured plaintiff. The effect of the holding was to allow the insurance company to hold back impeachment evidence in order to catch the plaintiff in a lie on the witness stand. As this authoring judge commented in a later case, "Th[e] unannounced policy goal [in Ranft] is that showing jurors a video catching personal injury plaintiffs in a probable lie is a good thing — it serves the truth-finding function of litigation. The policy goal of showing the jury that the plaintiff has been caught lying is deemed more important than disclosing the video at pretrial and cost effectively settling the case or gaining dismissal of it." Martz v. Trecker, 193 Wis. 2d 588, 600-01, 535 N.W.2d 57 (Ct. App. 1995) (Brown, J., concurring). The same reasoning applies to withholding rebuttal evidence to challenge the credibility of the defense theory.

       We originally entered an opinion in this case on May 1, 2002. Konkol moved for reconsideration of the decision on the basis that it was in conflict with the supreme court decision in State v. DeLao, 2002 WT 49, 252 Wis. 2d 289, 643 N.W.2d 480, which, released on May 7, 2002, affirmed a published court of appeals decision. We were well aware of the DeLao case when we entered our original opinion but did not reference it because we deemed it inapplicable to this case. Nevertheless, we granted Konkol's motion to reconsider, withdrew our opinion, and now reissue it with a discussion of why DeLao is distinguishable from the case before us.
      In DeLao, the defendant was charged with obstructing an officer and harboring or aiding a felon. Id. at f 5. The charges were connected with her conduct after a shooting in her home that involved her boyfriend and another man. Id. Initially, she denied involvement with the shooting but later, during a police interview, admitted to helping her boyfriend clean up the crime scene because she was afraid and he was "acting crazy." Id. at ¶ 4. Her theory of defense was based on coercion, that she aided her boyfriend and then lied to the police about it because she was afraid of him. Id. at ¶ 8.

        After the State rested its case on the second day of trial, the prosecutor informed the court of statements that DeLao had made which contradicted her earlier statements about being afraid of her boyfriend. Id. at ¶ 9. Indicating that she would use the statements to impeach DeLao, the prosecutor explained that the lead investigator in the case learned of these statements before trial from a police detective who had interviewed DeLao. The prosecutor had not learned of the impeaching statements until that morning. Id.

      The supreme court affirmed our decision that the State violated its discovery obligations under Wis. Stat. § 971.23(l)(b) when it failed to disclose DeLao's oral statements before her trial began. DeLao, 2002 WI 49 at ¶ 2. The case concerned only the scope of the prosecutor's duty to make herself aware of the accused's oral statements and the interpretation of "plans to use in the course of trial" under para. (b). See id. at ¶ 16. The court concluded that a reasonable prosecutor should have known of DeLao's statements before trial because the lead investigator had learned of them before trial. Id. at ¶ 47. In addition, the court concluded a reasonable prosecutor would have planned to use those statements to counter the defendant's theory of defense. Id. The failure to disclose the statements was prejudicial, justifying a new trial.

        DeLao stands for the proposition that a prosecutor shall be charged with knowledge of an accused's oral statements when they are given in a police interview and communicated to a lead investigator. Failure to disclose such oral statements to the defendant violates Wis. Stat. § 971.23(l)(b). Notably, DeLao did not involve para, (d) and, in particular, its exception for rebuttal witnesses or those called for impeachment only. Our case does not involve any oral statements taken from Konkol by the State; rather, it involves the admissibility of an expert witness that the State anticipated using to rebut Konkol's theory of defense. The fact that Konkol was surprised by the witness at trial does not mean that the witness was not a legitimate rebuttal witness. See DeLao, 2002 WI 49 at ¶ 116 ("[t]he existence of this exception in paragraph (d) legitimizes the use of rebuttal witnesses who may surprise the defendant") (Prosser, J., dissenting). The decision in DeLao does not require disclosure of witnesses that the State anticipates using only in rebuttal under para. (d).
      Finally, Konkol argues our decision today is unfair because "[h]e, unlike the State, has to anticipate the state's trial strategy and disclose possible witness [es] .... Because only the defendant has to anticipate and disclose witnesses, the defendant is severely disadvantaged at trial." We find no unfairness in the positions of the State and the defendant. The State essentially reveals its theory of the case when it files a complaint against the defendant. The defendant has no duty to disclose his or her theory of defense unless it involves an alibi. Therefore, we discern no unfairness in this process. In this case, the night Konkol was arrested he maintained that he had consumed only one rum and coke. The State reasonably assumed that this would form the basis of his defense at trial and the State assembled its case in preparation of meeting that defense. There is no law that required the State to inform Konkol that it was anticipating his defense theory before trial.


text:
    State of Wisconsin, Plaintiff-Respondent, v. John D. Tiggs, Jr., Defendant-Appellant.

    Court of Appeals

      No. 01-2685-CR.

      Submitted on briefs April 19, 2002.

    Decided June 19, 2002.

    2002 WI App 181
    (Also reported in 649 N.W.2d 709.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of John D. Tiggs, Jr., pro se.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Michael E. Nieskes, deputy district attorney, and Robert S. Flancher, district attorney.
    Before Nettesheim, PJ., Brown and Anderson, JJ.

       Petition to review denied 9-3-02.

   BROWN, J.

¶ 1. John D. Tiggs, Jr. appeals from an order denying his motion to change a judgment of conviction to reflect his legal name, Akinbo Jihad Suru Hashim, rather than his given name. He asserts that he has a "positive right" to the use of his legal name and therefore a legal right to change the legal document. We hold that whether there is a positive right to the use of his legal name on a legal document depends on the facts of each case. For the reasons that follow, Tiggs has forfeited any positive right he may have had to use his legal name based on his own actions and inaction. We therefore affirm the trial court order.

¶ 2. On March 3, 1998, a complaint was filed charging this defendant under the name of John D. Tiggs, Jr. with misdemeanor battery of a prisoner as a habitual offender. Throughout the proceedings, which took over a year, Tiggs never complained to the court that the charging documents called him by the wrong name. In fact, two documents in the record show that Tiggs, while proceeding pro se, brought motions before the trial court under the name Tiggs, Jr. and were signed by him under that name. He was convicted on May 19, 1999, and sentenced to serve six months in prison consecutive to time he was serving on another conviction.

¶ 3. After his postconviction motion, he continued to use the Tiggs name. It was not until March 9, 2000, almost two years after his conviction, that he filed a postconviction motion asking for the name change in the document. In this motion, he asserted that, due to his religious beliefs, his name had been changed to the Hashim name. Attached to the motion was a document purporting to be from the District Court of Leavenworth County, Kansas, dated October 31, 1990, decreeing that the name of John David Tiggs, Jr. be changed to Akinbo Jihad Suru Hashim. Tiggs argued before the trial court that since his legal name was Hashim, he had a positive right to have his judgment of conviction changed to reflect that name. He asserted that he was being disciplined by the Department of Corrections for using the Hashim name and appeared to contend that a name change on the official conviction would inure to his benefit in his disciplinary problems with the prison authorities.

¶ 4. The trial court denied the motion on two grounds. First, Tiggs never raised the issue when the case was pending before the court. The court held that if Tiggs wanted his legal name used during the criminal proceedings, he had ample opportunity to bring the matter up. Now, it was too late. The court commented that had the motion been timely made, "it could have been dealt with."

¶ 5. Second, the trial court appeared to take judicial notice of the CCAP record showing that from 1997 to the present, Tiggs had filed ten civil cases under his given name and none under his legal name. The court also noted that Tiggs' own pro se motions since the time that the action was commenced, pre- and postconviction, were filed under the Tiggs name.

¶ 6. Given the facts presented, the trial court concluded that if the motion were granted, it would create much confusion within the court system, the criminal justice system and the Department of Corrections, especially if that person were later placed on parole or supervision. The court was concerned that if a prisoner could bring a motion to change a legal document subsequent to conviction, it could also open the door to fraud. This would pose a difficulty for law enforcement officials and probation and parole officials.

¶ 7. We agree with the trial court. We note that we have previously written on the subject of name changes by prisoners. In Williams v. Racine County Circuit Court, 197 Wis. 2d 841, 541 N.W.2d 514 (Ct. App. 1995), a prisoner sought to change his legal name pursuant to Wis. Stat. § 786.36 (1993-1994), the statute detailing the procedure for a Wisconsin resident to legally change his or her name. The trial court cited that part of the statute which says that the name change will be allowed "if no sufficient cause is shown to the contrary" and denied the change. Williams, 197 Wis. 2d at 845. It noted Williams' long criminal history and reasoned that the change would harm law enforcement's ability to locate and identify him. Id. Williams appealed. He claimed that he had a right to change his name for religious reasons and that the denial was a constitutional violation. We affirmed, holding that Williams had "no positive right" to a name change. Id. at 846.

¶ 8. We agree with Tiggs that Williams is distinguishable. Williams wanted to change his legal name. Here, Tiggs has already changed his legal name. Tiggs claims that once he has done this, he has a positive right to use it.

¶ 9. We agree with Tiggs that once he has changed his legal name, he has a positive right to be called by that name. But he may also, by conduct, forfeit that right. If he calls himself by some other name, he has announced to the world that he goes by that other name and others then have the right not only to call him by that other name, but to create and file documents under that name. Tiggs had the initial control after the name change to dictate what name he was going to be called, but he relinquished that control. He cannot now assert control on a haphazard basis whenever he wants to and assume that every entity must accede to his wishes. As the trial court properly noted, to rule for Tiggs would be to allow him an avenue to manipulate the criminal justice system at his will. That cannot be allowed or condoned.

¶ 10. We conclude that a legal name change gives a person a positive right to use that new name. We hold, however, that the positive right may be relinquished by the person's conduct in the carrying of his or her name. Tiggs forfeited his right.

By the Court. — Order affirmed.

       The relevant language of the current version of Wis. Stat. § 786.36 (1999-2000) is substantially unchanged. All other references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.


author: SNYDER, J.

text:
    Vincent J. Magestro and American Power Equipment, Inc., Plaintiffs-Respondents, Bonnie Magestro, Plaintiff, v. North Star Environmental Const., West Bend Mutual Insurance Co., Calvin Siegel, Siegel Engineering, Inc., Town of Rochester, Larry Weede, Paul Pogrant d/b/a Custom Engineered Structures and Peter Ochs, Defendants, Pekul Incorporated and Regent Insurance Company, Defendants-Appellants.
    Court of Appeals

      No. 01-2723.

      Submitted on briefs May 9, 2002.

    Decided June 19, 2002.

    2002 WI App 182
    (Also reported in 649 N.W.2d 722.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Stuart B. Eiche of Eiche & Frakes, S.C., of Milwaukee.

      On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Joseph J. Kroening of Stevens & Kroening, LLC of Menomonee Falls.
    Before Nettesheim, EJ., Anderson and Snyder, JJ.
   SNYDER, J.

¶ 1. Pekul Incorporated and Regent Insurance Company (Pekul) appeal from a judgment and an order of the trial court upholding a jury verdict awarding damages to Vincent J. Magestro and his wholly-owned company, American Power Equipment, Inc. (Magestro), for building repair and other monetary loss. Pekul makes the following arguments in support of its appeal: (1) consistent with the economic loss doctrine, consequential damages should not be awarded in a breach of construction contract unless the parties specifically contract for said damages; (2) Pekul did not anticipate damages for lost revenue and said damages were not foreseeable; and (3) damages for lost revenue are improper as a matter of law and the only conceivably permitted consequential damages are lost profits. We disagree with Pekul's argument regarding consequential damages under contract law, but agree that damages for lost revenue are improper as a matter of law.

FACTS

¶ 2. Magestro contracted with Pekul to construct a "pole building" for $84,500 to house a small engine repair and retail business. Within weeks after the building's completion, the foundation cracked and the building started to sag. Magestro brought suit against Pekul for breach of contract and negligence. Pekul filed a motion for partial summary judgment, asking the trial court to dismiss the negligence action pursuant to the economic loss doctrine. Pekul's motion was granted and the matter proceeded to trial on the breach of contract claim.

¶ 3. After trial, the jury found that Pekul had materially breached its contract with Magestro and this breach caused Magestro damage. The jury verdict awarded Magestro $29,825 for building repair, $0 for lost profits and $43,907 for other revenue loss. Pekul filed motions after verdict to change the jury's answer and dismiss the complaint and to strike the lost revenue award as unsupported by the evidence. These motions were denied and Pekul appeals.

DISCUSSION

¶ 4. Pekul argues that pursuant to the economic loss doctrine, consequential damages should not be awarded in a breach of construction contract unless the parties specifically contract for said damages. Pekul confuses the "economic loss doctrine" with economic loss.

¶ 5. Economic loss is damage to a product itself or monetary loss caused by a defective product that does not cause personal injury or damage to other property. Biese v. Parker Coatings, Inc., 223 Wis. 2d 18, 23, 588 N.W.2d 312 (Ct. App. 1998). Put simply, economic loss is monetary loss. Black's Law Dictionary 530 (9th ed. 1999).

¶ 6. On the other hand, the "economic loss doctrine" is a judicially created doctrine providing that a purchaser of a product cannot recover from a manufacturer damages that are solely economic in nature under tort theories of negligence or strict liability. Daanen & Janssen, Inc. v. Cedarapids, Inc., 216 Wis. 2d 395, 400, 573 N.W.2d 842 (1998). Application of the economic loss doctrine is justified to maintain the distinct functions of tort and contract law. Id. at 403. The economic loss doctrine does not prohibit recovery of economic loss in contract action. In fact, the direct opposite is true; the economic loss doctrine limits recovery to only economic losses. The economic loss doctrine in no way limits a party's ability to seek breach of contract damages but merely prohibits a party from seeking a tort remedy when the damages are purely economic in nature.

¶ 7. Here, Magestro initially alleged causes of action for both negligence and breach of contract. Pekul filed a motion for partial summary judgment to dismiss the negligence claims based upon the economic loss doctrine, claiming that Magestro's losses were solely economic in nature and therefore he could not recover under tort theories of negligence. The trial court agreed and dismissed all of the negligence claims. The only claims remaining were breach of contract claims and therefore the economic loss doctrine was no longer applicable. We agree with Magestro's attorney who stated before the trial court:

I guess I would just like to make a comment about this economic loss doctrine because I understand that you are keeping a lot of these damages out based on the economic loss doctrine, which is a theory that is used in tort cases. The economic loss doctrine is used to preclude damages suffered by somebody in tort when there is a contract in place. I don't think that the economic loss doctrine has any applicability in this case because we're speaking now strictly of a breach of contract and whether or not there are consequential damages flowing from that breach of contract.... [Y]our Honor, if you are dismissing any of these damages based on the economic loss doctrine, I have to respectfully, completely disagree with you because I don't think the economic loss doctrine has any applicability in this case because we're talking about a breach of contract. (Emphasis added.)

¶ 8. Because the trial court dismissed all the negligence claims pursuant to the economic loss doctrine, the economic loss doctrine has no further applicability to the remaining breach of contract claims. Pekul's arguments that consequential damages in a breach of contract case are precluded by the "economic loss doctrine" fail.

¶ 9. Pekul next argues that consequential damages are not allowed in a breach of contract action unless the parties specifically contract for said damages. We disagree.

¶ 10. The determination of the proper measure of damages for a specific claim presents a question of law which this court reviews independently. Schorsch v. Blader, 209 Wis. 2d 401, 405, 563 N.W.2d 538 (Ct. App. 1997). A party may also seek consequential damages for breach of contract. Kramer v. Bd. of Educ. of the Sch. Dist. of the Menomonie Area, 2001 WI App 244, ¶ 11, 248 Wis. 2d 333, 635 N.W.2d 857, review denied, 2002 WI 2, 249 Wis. 2d 582, 638 N.W.2d 591 (Wis. Nov. 27, 2001) (No. 00-3489). Contract damages should compensate the wronged party for damages that arise naturally from the breach; said damages are limited by the concept of foreseeability. Id. at ¶ 10. However, in addition to these compensatory damages, a party can also seek consequential damages. Id. at ¶ 11.

¶ 11. Wisconsin JI — Civil 3710 specifically allows for recovery of consequential damages:

The law provides that a person who has been damaged by a breach of contract shall be fairly and reasonably compensated for his or her loss. In determining the damages, if any, you will allow an amount that will reasonably compensate the injured person for all losses that are the natural and probable results of the breach.

Pekul's arguments that consequential damages are unavailable in breach of contract actions is without merit.

¶ 12. Pekul also argues that damages for lost revenue were not foreseeable and were improper as a matter of law because the only conceivably permitted consequential damages were lost profits. We agree that lost profits are the only allowable consequential damages.

¶ 13. We have found no authority for the contention that lost revenues are an appropriate consequential damage. The only case cited by Magestro in defense of his claim for lost revenue is Appleton Chinese Food Service, Inc. v. Murken Insurance, Inc., 185 Wis. 2d 791, 519 N.W.2d 674 (Ct. App. 1994). This case does not support Magestro's assertions. Appleton Chinese Food Service was a negligence action for an insurance agent's negligent failure to procure requested insurance coverage, not a breach of contract case. Id. at 796.

¶ 14. The long-established rule in Wisconsin, stated in Buxbaum v. G.H.P. Cigar Co., 188 Wis. 389, 392, 206 N.W. 59 (1925), holds that "prospective profits are a legitimate item of damages resulting from a breach of contract when the circumstances are such that the future profits may be computed with some reasonable certainty." See also 2 The Law of Damages in Wisconsin § 26.16 (Russell M. Ware ed., 2d ed. 1995). Prospective profits must be diminished by charges composing an essential element in the cost of manufacture or service. Schubert v. Midwest Broad. Co., 1 Wis. 2d 497, 503, 85 N.W.2d 449 (1957). An injured party is only entitled to the benefit of his or her agreement, which is the net gain he or she would have realized from the contract but for the breach. Thorp Sales Corp. v. Gyuro Grading Co., 111 Wis. 2d 431, 438-39, 331 N.W.2d 342 (1983).

¶ 15. Our holding in Lindevig v. Dairy Equipment Co., 150 Wis. 2d 731, 442 N.W.2d 504 (Ct. App. 1989), clearly implies that evidence of lost revenue is improper. To establish lost profits, claimants must produce evidence of the business's revenue as well as its expenses because assertions as to the amount of lost profits have no evidentiary value unless supported by figures showing both profits and losses. Id. at 740. Evidence of a claimant's gross receipts is insufficient to prove lost profits. Id. In Lindevig, we specifically held that because the plaintiffs produced no evidence of expenses, the evidence showing gross profits (i.e., revenue) has no evidentiary value. Id. The clear implication of Lindevig is that evidence of lost revenue is inappropriate.

¶ 16. Even the jury instruction addressing damages and loss of expectation suggests only an award of lost profits is appropriate:

The measure of damages for a breach of contract is the amount which will compensate the plaintiff for the loss suffered because of the breach. A party who is injured should, as far as it is possible to do by monetary award, be placed in the position in which he or she would have been had the contract been performed. The fundamental basis for an award of damages for breach of contract is just compensation for losses necessarily flowing from the breach. A party whose contract has been breached is not entitled to be placed in a better position because of the breach than the party would have been had the contract been performed. The injured party is entitled to the benefit of his or her agreement, which is the net gain he or she would have realized from the contract but for the failure of the other party to perform.

Wis JI — Civil 3735 (emphasis added). Wisconsin JI— Civil 3725 addresses damages and future profits; no mention is made of lost revenue. Revenue loss is not an appropriate consequential damages award.

¶ 17. Here, the jury instructions informed the jury of the maximum amount to award for both profit and revenue loss and the verdict form allowed it to award both. The jury awarded $0 for lost profits and $43,907 for revenue loss. We could leave the $0 lost profits award intact and simply vacate the revenue loss award. However, all discussions during trial of lost profits and revenue loss were inextricably intertwined. A trial court has wide discretion in framing the special verdict; however, a trial court has a duty to present to the jury instructions adequate to allow it to intelligently perform its function. Runjo v. St. Paul Fire & Marine Ins. Co., 197 Wis. 2d 594, 602, 541 N.W.2d 173 (Ct. App. 1995). Misleading instructions and verdict questions which may cause jury confusion are a sufficient basis for a new trial. Id. at 603.

¶ 18. The jury was never provided a definition of "profit" versus "revenue" and was instructed to award damages not allowed by law. Real potential for jury confusion existed in wrestling with these two closely related concepts of damages. We conclude that the combination of these erroneous instructions and special verdict form probably misled the jury, rendering the jury's verdict unreliable. A new trial on the issue of lost profits is necessary.

CONCLUSION

¶ 19. The economic loss doctrine has no applicability to this breach of contract case. We reject Pekul's claim that consequential damages are not allowed in a breach of contract case. However, we agree that damages for lost revenue are improper as a matter of law and the only conceivably permitted consequential damages are lost profits. We therefore affirm the damages award for building repair, reverse that portion of the judgment and order concerning the consequential damages awarded (lost profits and revenue loss) and remand for a new trial on the issue of lost profits.

¶ 20. Costs are denied to all parties.

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

       Magestro also brought suit against various other parties who were either dismissed prior to trial or found not liable by the jury and are not a part of this appeal. Therefore, these other parties and their role in these proceedings will not be addressed.

       There is no evidence in the record, either in the jury instructions or the special verdict form, that the jury was ever provided definitions of "profit" and "revenue." A transcript of the jury instruction conference does not reveal any discussion of these definitions. We can only assume that the trial court equated "revenue" with gross profits and "profit" with net profits.

       Again, we note that the jury awarded $29,825 for building repair, $0 for lost profits and $43,907 for other revenue loss. The $29,825 award for building repair was not appealed and thus remains intact and unaffected by this decision. The new trial is on the issue of lost profits alone.