author: DYKMAN, P.J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. John C. Thorstad, Defendant-Respondent.

    Court of Appeals

      No. 99-1765-CR.

      Submitted on briefs June 23, 2000.

    Decided August 17, 2000.

    2000 WI App 199
    (Also reported in 618 N.W.2d 240.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and Jennifer E. Nashold, assistant attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief oí Ralph A. Kalal oí Kalal & Associates of Madison.
    Before Dykman, P.J., Roggensack and Deininger, JJ.

      Petition to review denied.

   DYKMAN, P.J.

¶ 1. The State appeals from an order granting John Thorstad's motion to suppress a warrantless blood test performed to obtain evidence of Thorstad's intoxication. The State contends that the blood test was admissible because Thorstad consented to the blood test, or in the alternative, because the blood test was justified under State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993). Thorstad argues that the blood test was properly suppressed because it was coerced and nonconsensual, and therefore, an unreasonable search in violation of the Fourth Amendment. We conclude that the test was admissible because it met the constitutional requirements for war-rantless blood tests set out in Bohling, 173 Wis. 2d at 533-34. We therefore reverse.

I. Background

¶ 2. The parties stipulated to facts set forth in both the May 12, 1999 motion hearing and Thorstad's amended motion to suppress. The trial court decision relied on additional facts the parties do not contest. Thorstad was arrested on September 27, 1997, at the scene of a one-car accident. His arrest followed his admission that he was the driver of the car and that he had been drinking a lot. He had also failed two field sobriety tests. Upon arrest, he was taken to Richland Hospital for a blood test. The arresting officer did not obtain a warrant for the blood test. Instead, the officer requested that Thorstad provide a blood sample for evidentiary analysis and read Thorstad an "Informing the Accused" form. The information on this form approximated the language mandated by Wis. Stat. § 343.305(4) (1997-98). Among other things, the form explained that Thorstad could refuse to submit to chemical testing, but that upon such refusal, his driving privileges would be revoked. After the officer read the form, Thorstad agreed to the blood test. At no time did Thorstad request that he be given the opportunity for an alternate form of test, nor did he ever refuse to take the blood test.

¶ 3. On October 20, 1997, the State filed a complaint against Thorstad, alleging one count each of operation of a motor vehicle while under the influence of an intoxicant and operation of a motor vehicle with a prohibited alcohol concentration in violation of Wis. Stat. § 346.63(l)(a) and (b). Thorstad moved to suppress blood test evidence of his intoxication, and later amended his motion. In his amended motion, Thorstad argued that the blood test was an unreasonable search in violation of the Fourth Amendment. The trial court concluded that the State had failed to meet its burden to justify the warrantless blood test and ordered the blood test suppressed. The State appeals.

II. Analysis

¶ 4. Whether a search is reasonable is a question of constitutional law that we review de novo. See State v. Guzman, 166 Wis. 2d 577, 586, 480 N.W.2d 446 (1992). The use of warrantless blood tests to detect evidence of intoxication in motorists suspected of drunk-driving related offenses has been held to be constitutionally permissible at least since the United States Supreme Court's decision in Breithaupt v. Abram, 352 U.S. 432 (1957). In Breithaupt, the Court affirmed a defendant's conviction over his objection that blood test evidence taken from him while unconscious was an unreasonable search and seizure under the Fourth Amendment. Id. at 434, 440.

¶ 5. Recognizing that "intrusions beyond the body's surface" implicated "interests in human dignity and privacy which the Fourth Amendment protects," the Supreme Court elaborated on the conditions under which blood tests were constitutionally permissible. Schmerber v. California, 384 U.S. 757, 769-70 (1966). In Schmerber, the Court held that the Fourth Amendment permitted a warrantless blood test after a lawful arrest. Id. at 759, 771. However, the Court qualified its holding by noting several conditions and circumstances underlying its conclusion. See id. at 770-72. First, given the facts of the case, there was a "clear indication" that evidence of intoxication would be found in the defendant's blood. Id. at 770. Second, the blood test was taken in a "reasonable manner" because it was taken "by a physician in a hospital environment according to accepted medical practices." Id. at 771. Third, because the human body rapidly eliminates alcohol from the system, "the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence." Id. at 770 (citation omitted). Finally, the Court noted that the defendant was not someone with a particular health or religious objection. See id. at 771. Therefore, a blood test was a reasonable means to measure intoxication: "[F]or most people the procedure involves virtually no risk, trauma, or pain." Id.

¶ 6. Relying on Schmerber, in Bohling, the Wisconsin Supreme Court held that given certain limitations, "a warrantless blood sample taken at the direction of a law enforcement officer is permissible." Bohling, 173 Wis. 2d at 533, 536. The Bohling court specifically noted that it read Schmerber to permit war-rantless blood tests because the rapid dissipation of alcohol from the bloodstream constitutes exigent circumstances. Id. at 539-40. The presence of exigent circumstances is an exception to the Fourth Amendment's requirement that law enforcement authorities obtain a warrant to conduct a search. See New York v. Quarles, 467 U.S. 649, 653 n.3 (1984); State v. Kiekhefer, 212 Wis. 2d 460, 475, 569 N.W.2d 316 (Ct. App. 1997).

¶ 7. In outlining the requirements that must be met before a warrantless blood draw is permissible under the Fourth Amendment, the Bohling court examined the analysis in Schmerber. Bohling, 173 Wis. 2d .at 537-41. The court concluded that warrantless blood draws are permissible when the following four requirements are met:

(1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime, (2) there is a clear indication that the blood draw will produce evidence of intoxication, (3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner, and (4) the arrestee presents no reasonable objection to the blood draw.

Id. at 533-34 (footnote omitted).

¶ 8. The State argues that taking Thorstad's blood without a warrant was justified because the four requirements of Bohling were met. The State also contends that, regardless of Bohling, Thorstad consented to the blood test under Wis. Stat. § 343.305. In County of Ozaukee v. Quelle, 198 Wis. 2d 269, 277-78, 542 N.W.2d 196 (Ct. App. 1995), we summarized § 343.305:

Every driver in Wisconsin impliedly consents to take a chemical test for blood alcohol content. A person may revoke consent, however, by simply refusing to take the test. Thus, a driver has a "right" not to take the chemical test (although there are certain risks and consequences inherent in this choice). The legislature recognized that drivers being asked to take a chemical test should be informed of this choice and therefore requires law enforcement officers to provide drivers with certain information.

(Citations omitted.)

¶ 9. Thorstad does not contend that the law enforcement officer failed to provide the information mandated by Wis. Stat. § 343.305; nevertheless, he argues that the blood test was an unreasonable search under the Fourth Amendment. In support of his position, Thorstad relies heavily on a Ninth Circuit Court of Appeals case, Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998), cert. denied, 525 U.S. 981 (1998). In Nelson, the Ninth Circuit held that "[w]hen an arrestee requests but is denied the choice of an available breath or urine test, the exigency used to justify the warrant-less blood test continues only because of the ... failure to perform the requested alternative test." Id. at 1205. Therefore, "blood tests [become] not only unnecessary and unreasonable, but violate[ ] the Fourth Amendment's warrant requirement." Id. However, Nelson was a class action where the Ninth Circuit limited the plaintiff class to those who had requested or consented to a breath or urine test instead of a blood test. Id. at 1203 & n.3. Thorstad did not request either alternate test. Furthermore, Nelson is not binding in Wisconsin. To the extent, if any, that Nelson is in conflict with the exigent circumstances analysis oí Bohling and Schmer-ber, it is not for this court to resolve that conflict. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997).

¶ 10. Thorstad also argues that the blood test was an unreasonable search because it was involuntary and nonconsensual. However, Bohling does not require that the subject of the blood test give consent or voluntarily take the test, 173 Wis. 2d at 534-35, nor does Bohling thus depend on whether the subject of the blood test was deemed to have consented under Wis. Stat. § 343.305. Therefore, Thorstad's contention that his blood test was an unreasonable search must ultimately rest on one of the following premises: (1) the requirements of Bohling were not met; (2) § 343.305 is unconstitutional; or, (3) Bohling is unconstitutional.

¶ 11. Even if it were clear from Thorstad's brief that he is arguing that Bohling is unconstitutional, we could not reach that question. This court cannot alter or overrule the constitutional standard set by Bohling. "The supreme court is the only state court with the power to overrule, modify or withdraw language from a previous supreme court case." Cook, 208 Wis. 2d at 189. Neither do we begin our analysis by addressing the constitutionality of Wis. Stat. § 343.305. "As a matter of judicial prudence, a court should not decide the constitutionality of a statute unless it is essential to the determination of the case before it." Maguire v. Journal Sentinel, Inc., 2000 WI App 4, ¶ 31, 232 Wis. 2d 236, 605 N.W.2d 881 (quoting Kollasch v. Adamany, 104 Wis. 2d 552, 561, 313 N.W.2d 47 (1981)), review denied, 2000 WI 36, 234 Wis. 2d 176, 612 N.W.2d 732. Instead, our first task is to determine whether the requirements of Bohling were met under the circumstances of this case. If the Bohling requirements were met, our inquiry need go no further.

¶ 12. To justify a warrantless blood draw, Bohling first requires that "the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime." 173 Wis. 2d at 534. When Thorstad's blood was taken, he had already been arrested. Thorstad does not claim that his blood was taken or used for any purpose other than to obtain evidence of intoxication. Therefore, the first requirement is met.

¶ 13. Bohling next requires that there be "a clear indication that the blood draw will produce evidence of intoxication." Id. The supreme court has held that, in the context of a blood draw incident to arrest, "clear indication" is the legal equivalent of "reasonable suspicion." State v. Seibel, 163 Wis. 2d 164, 179, 471 N.W.2d 226 (1991). Reasonable suspicion is "less than probable cause, but more than a hunch." State v. Guy, 172 Wis. 2d 86, 95, 492 N.W.2d 311 (1992) (citing Terry v. Ohio, 392 U.S. 1, 22 (1968)). The question of what constitutes reasonable suspicion is a common sense test, where the court considers all the facts and circumstances. See State v. Jackson, 147 Wis. 2d 824, 834, 434 N.W.2d 386 (1989).

¶ 14. At the time Thorstad's blood was drawn, he had been found at the scene of a one-car accident. He had admitted he had been driving and had been drinking a lot. He had also failed two field sobriety tests. The combination of these circumstances constitutes at least a reasonable suspicion that a blood test would reveal evidence of intoxication.

¶ 15. Bohling also requires that when a blood sample is taken, "the method used to take the blood sample is a reasonable one and performed in a reasonable manner." 173 Wis. 2d at 534. In both Bohling and Schmerber, the defendant was taken to a hospital for the blood test. Schmerber, 384 U.S. at 758-59; Bohling, 173 Wis. 2d at 535. Both the Bohling court and the Schmerber Court concluded that the blood test was reasonable under the Fourth Amendment. Schmerber, 384 U.S. at 772; Bohling, 173 Wis. 2d at 536. Like the defendants in Schmerber and Bohling, Thorstad's blood test was performed in a medical environment and was therefore done by a reasonable method and in a reasonable manner.

¶ 16. Finally, Bohling requires that "the arrestee presents no reasonable objection to the blood draw." 173 Wis. 2d at 534. We need not delineate what sorts of objections might be considered reasonable objections because Thorstad did not present any objections, reasonable or otherwise. He did not refuse to take the test, nor does the record reveal that he gave any indication that he would prefer another test.

¶ 17. Because the requirements of Bohling were satisfied, we conclude that Thorstad's blood test was a reasonable search under the Fourth Amendment. Because the search was constitutionally permissible, the trial court erred in granting Thorstad's amended motion to suppress. We therefore reverse and remand for further proceedings.

By the Court. — Order reversed and cause remanded with directions.

       The trial court's decision gives the date of arrest as September 27, while Thorstad's amended motion to suppress gives the date as September 28. The discrepancy is not relevant to our decision.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted. The language of WlS. STAT. § 343.305(4) has been modified since Thorstad's arrest. However, the substance of the information that § 343.305(4) requires in the Informing the Accused form has not changed. Furthermore, the language change in the statute since Thor-stad's arrest does not affect our analysis.

       The state filed an amended complaint on May 4, 1998. However, no additional counts were alleged.

       The court also noted that probable cause to arrest could substitute for an actual lawful arrest in requirement (1). See Bohling, 173 Wis. 2d at 534 n.l (citing State v. Bentley, 92 Wis. 2d 860, 863-64, 286 N.W.2d 153 (Ct. App. 1979)).

       Thorstad has served the attorney general with a copy of his amended motion to suppress. We have previously concluded that notice to the attorney general is a prerequisite to a party's constitutional challenge to a statute. See Midwest Mut. Ins. Co. v. Nicolazzi, 138 Wis. 2d 192, 202, 405 N.W.2d 732 (Ct. App. 1987).


source: Caselaw Access Project

author: DEININGER, J.

license: Public Domain

text:
    Danny R. Peterson, Plaintiff-Appellant, State of Wisconsin Department of Health and Family Services, and Community Living Alliance, Plaintiffs, v. Midwest Security Insurance Company, Defendant-Respondent, Wisconsin Carpenters' Health Fund, and American Family Mutual Insurance Company, Defendants.
    Court of Appeals

      No. 99-2987.

      Submitted on briefs June 23, 2000.

    Decided August 17, 2000.

    2000 WI App 213
    (Also reported in 617 N.W.2d 876.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Daniel A. Rottier and Vir

      ginia M. Antoine of Habush, Habush, Davis & Rottier, S.C., Madison.
    On behalf of the defendant-respondent, the cause was submitted on the brief of James W. Mohr, Jf. of Mohr & Anderson, S.C., Hartford.
    Before Dykman, P.J., Roggensack and Deininger, JJ.

      Petition to review granted.

   DEININGER, J.

¶ 1.

Danny Peterson appeals a judgment dismissing his cause of action against Midwest Security Insurance Company. Peterson contends that Midwest Security is financially liable for injuries Peterson incurred when a tree stand owned by Harold Shaw, the company's insured, collapsed. The circuit court concluded that Peterson's claim is barred by Wisconsin's recreational immunity statute, WlS. Stat. § 895.52 (1997-98). We agree that Shaw is immune from liability under § 895.52, and accordingly, we affirm.

BACKGROUND

¶ 2. Vernon and Culleen Peterson owned several acres of wooded land and allowed their nephew, Harold Shaw, to hunt deer on their land. With the Petersons' permission, Shaw constructed two tree stands on the property. Each stand consisted of a small wooden platform that was "cinched in against the tree with a chain." The stands were placed approximately twenty feet off the ground and were accessed by climbing a metal ladder and then climbing through the branches to the platform.

¶ 3. In the fall of 1996, Shaw brought Danny Peterson to the property and asked Vernon and Cul-leen if Peterson might hunt on their land. The two gave Peterson permission to hunt on their property, and Shaw gave him permission to use the tree stands he had constructed. Over the course of the next year, Peterson hunted two or three times on this property.

¶ 4. Peterson returned to the land in October 1997 to bow hunt for deer. Peterson approached a tree that contained one of Shaw's tree stands and climbed up the tree until he was level with the stand. He then tested the stand's sturdiness by placing his weight on the stand while still holding on to the trunk of the tree. The tree stand appeared to support his weight, so he let go of the tree, stepped onto the stand and pulled his bow up onto the stand. Less than five minutes later, Peterson saw a deer. As he waited to get a good shot at the deer, he turned his ankle "just a little bit," and the tree stand collapsed "like a trapdoor." Peterson fell approximately twenty feet to the ground, and incurred serious injuries.

¶ 5. Peterson filed a complaint against Shaw's insurer, Midwest Security, in which he alleged that Shaw had negligently "built, installed and maintained" the tree stand and that Shaw had negligently informed Peterson that the tree stand was "in good condition" and "safe to use." Midwest Security moved for summary judgment on the grounds that: (1) Shaw was not negligent; (2) Peterson's claim was barred by Wisconsin's recreational immunity statute; (3) Peterson's claim relied on inadmissible evidence; and (4) the claim was barred by laches. The circuit court concluded that Shaw was immune from liability under the recreational immunity statute, and granted Midwest Security's motion for summary judgment. Peterson appeals the judgment dismissing his claim against Midwest Security.

ANALYSIS

¶ 6. We review the circuit court's grant of summary judgment de novo, using the same methodology as the circuit court. See M&I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 496, 536 N.W.2d 175 (Ct. App. 1995). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See id. at 496-97; see also WlS. STAT. § 802.08(2).

¶ 7. The circuit court granted Midwest Security's motion for summary judgment because it concluded that Peterson's claim is barred by Wisconsin's recreational immunity statute, WlS. STAT. § 895.52. This statute, in general, immunizes a property owner from liability when a person is injured while engaging in a recreational activity on the owner's property. See § 895.52(2). The statute defines "recreational activity" as "any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure...." See § 895.52(l)(g). "Property" is defined as "real property and buildings, structures and improvements thereon, and the waters of the state"; an "owner" is one who "owns, leases or occupies property." See § 895.52(l)(f), (d).

¶ 8. The parties do not dispute that Peterson was engaged in a recreational activity at the time of his injury. The parties disagree, however, as to whether Shaw's tree stand constitutes "property" under WlS. Stat. § 895.52(l)(f) and whether Shaw satisfied the statutory definition of "owner" set forth in § 895.52(l)(d). To resolve these issues, we must interpret § 895.52. Statutory interpretation is a question of law and is subject to our de novo review. See Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315 (Ct. App. 1997). The goal of statutory interpretation is to ascertain the intent of the legislature, and to discern this intent we look first to the plain language of the statute. See Anderson v. City of Milwaukee, 208 Wis. 2d 18, 25, 559 N.W.2d 563 (1997). If the statute's language is clear, we look no further and simply apply the statute to the facts and circumstances before us. See Jungbluth v. Hometown, Inc., 201 Wis. 2d 320, 327, 548 N.W.2d 519 (1996).

¶ 9. We first consider whether Shaw's tree stand constitutes "property" under WlS. Stat. § 895.52(l)(f). Peterson contends that the tree stand is not "property" because it is not a "building, structure or improvement" on real property. The circuit court determined that the tree stand is a "structure" under § 895.52(l)(f). Peterson argues, however, that the record before the circuit court was insufficient to support this determination, and that the court erred in granting Midwest Security's motion for summary judgment because a material issue of fact remained as to whether the tree stand is, in fact, a "structure."

¶ 10. The term "structure" is not defined by Wis. Stat. § 895.52, and should therefore be construed according to its common and ordinary usage. See Ervin v. City of Kenosha, 159 Wis. 2d 464, 483-84, 464 N.W.2d 654 (1991). Webster's Third New International Dictionary defines "structure" as "something constructed or built," and Black's Law Dictionary defines it as "[a]ny construction, production, or piece of work artificially built up or composed of parts purposefully joined together." See Webster's Third New International Dictionary 2267 (1993); Black's Law Dictionary 1436 (7th ed. 1999). The record on summary judgment contains deposition testimony that establishes that the tree stand was constructed by Shaw, was made of wood, and was "cinched in against [a] tree with a chain." Based on this testimony, the circuit court concluded that the tree stand is "something constructed or built" and is therefore a "structure" under § 895.52(l)(f), and we agree.

¶ 11. Concluding that the tree stand is a "structure" does not end our analysis, however, because Peterson also argues that the tree stand can be a "structure" under Wis. Stat. § 895.52(l)(f) and still not satisfy the statute's definition of "property." According to Peterson, a "structure" is not "property" under § 895.52(l)(f) unless it is owned in conjunction with the real property on which it stands. Shaw was the undisputed owner of the tree stand itself, but he did not own the underlying property to which the stand was attached. Peterson thus contends that the tree stand does not satisfy the recreational immunity statute's definition of "property."

¶ 12. To support this contention, Peterson relies on the wording and punctuation of Wis. Stat. § 895.52(l)(f). The statute defines "property" as "real property and buildings, structures and improvements thereon, and the waters of the state. ..." See § 895.52(l)(f). Peterson insists that this language should be construed so as to delineate only two categories of property: (1) real property along with any buildings, structures and improvements thereon, and (2) the waters of the state. In Peterson's view, the lack of punctuation between "real property" and "buildings, structures and improvements" suggests that these two phrases cannot be severed from each other, and that a "building, structure [or] improvement" is not considered "property" unless it is indivisible from the real estate on which it stands. We conclude, however, that the plain language of § 895.52(l)(f) fails to support the interpretation that Peterson advocates. There is nothing in the language of the statute that implies that a structure or improvement is only "property" if it is owned in conjunction with the land beneath it.

¶ 13. Moreover, this court has previously considered the language in question, and we concluded that Wis. Stat. § 895.52(l)(f) defines three categories of property. We considered the definition of "property" in Doane v. Helenville Mutual Insurance Co., 216 Wis. 2d 345, 352, 575 N.W.2d 734 (Ct. App. 1998), and concluded that the statute "delineates three categories of property whose owners may qualify for immunity: (1) real property; (2) buildings, structures and improvements thereon; and (3) waters of the state." Applying our analysis in Doane to the present facts, we conclude that the tree stand itself satisfies the statute's definition of "property" because it is a structure that is situated on real property, and hence, that Shaw was an owner of property within the meaning of § 895.52.

¶ 14. Peterson argues next that extending immunity to Shaw contravenes the legislative intent behind the recreational immunity statute. We disagree. The recreational immunity statute was enacted to "encourage property owners to open their lands for recreational activities," and to encourage persons to construct structures and facilities on recreational lands. See Linville v. City of Janesville, 184 Wis. 2d 705, 715, 516 N.W.2d 427 (1994); Crowbridge v. Village of Egg Harbor, 179 Wis. 2d 565, 572-73, 508 N.W.2d 15 (Ct. App. 1993). By constructing a tree stand on his relatives' land and allowing Peterson to use it to hunt deer, Shaw was promoting the opening of this land for recreational purposes, thereby farthering the legislative intent of the statute.

CONCLUSION

¶ 15. For the reasons discussed above, we affirm the judgment of the circuit court.

By the Court. — Judgment affirmed.

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

       Shaw died in April 1998. Peterson did not name his estate as a defendant in this action.

       Wisconsin Stat. § 895.52(l)(g) explicitly identifies "hunting" as a recreational activity.

       The circuit court also concluded that the tree stand is an "improvement" to real property because it adds value to the real property. Because we conclude that the tree stand is a "structure" under WlS. Stat. § 895.52(l)(f), however, we do not consider whether the tree stand is also an "improvement."

       We considered in Doane v. Helenville Mutual Insurance Co., 216 Wis. 2d 345, 575 N.W.2d 734 (Ct. App. 1998), whether a portable fishing shanty was "property" under WlS. STAT. § 895.52(l)(f). After we explained that § 895.52 contemplates three kinds of property, we noted that the parties agreed that the ice fishing shanty was a "structure." See id. at 353. We ultimately concluded that the shanty was not "property" within the meaning of the statute, however, because it stood on a frozen lake and was therefore not "located, at least in part, on real property." See id.

       The circuit court also concluded that Shaw was immune from liability, in part, because Shaw was an "occupant" of the land upon which Peterson was injured. Peterson argues that Shaw's periodic use of this land was insufficient to make him an "occupant" under WlS. STAT. § 895.52(l)(d)l. We need not determine if Shaw was a statutory "occupant" of his relatives' land, however, because we conclude that the ownership of the underlying real property is not relevant to Shaw's immunity as owner of the tree stand. To be immune from liability under the recreational immunity statute, Shaw need only be an "owner" of "property" as defined by § 895.52. Peterson does not dispute that Shaw was the owner of the tree stand from which Peterson fell, and as we have discussed, the tree stand satisfies the statute's definition of "property." Accordingly, we need not consider whether Shaw also "occupied," within the meaning of the statute, the real property to which the tree stand was attached.


author: BROWN, P.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Michael R. Bauer, Defendant-Appellant.

    Court of Appeals

      No. 99-2589-CR.

      Submitted on briefs July 31, 2000.

    Decided August 23, 2000.

    2000 WI App 206
    (Also reported in 617 N.W.2d 902.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Thomas K. Voss oí Love, Voss, Murray & Goeschko of Waukesha.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sally L. Wellman, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, P. J., Nettesheim and Anderson, JJ.

      Petition to review dismissed.

   BROWN, P.J.

¶ 1. Michael R. Bauer was charged with attempted first-degree intentional homicide of his wife and attempted possession of an electric weapon. While in jail awaiting trial, he solicited the murder of his wife and a friend who were going to testify against him. During Bauer's trial, the judge allowed testimony regarding Bauer's attempted solicitation. The issue in this case is how the solicitation evidence should be categorized and whether it is admissible.

¶ 2. Bauer argues that the solicitation evidence was other acts evidence which was improperly admitted pursuant to WlS. STAT. § 904.04(2) (1997-98). The State responds that the evidence was not other acts evidence, but rather was evidence of consciousness of guilt, which was properly admitted. Alternatively, the State argues that even if it was other acts evidence, it was properly admitted because it was offered to prove intent. The trial court held that the evidence was other acts evidence which was admissible because it was offered to prove intent or motive. We agree with the trial court that this evidence was admissible, but not because it was other acts evidence. Rather, it was admissible because it was evidence of a criminal act of the accused intended to obstruct justice or avoid punishment which can be used to prove consciousness of guilt.

¶ 3. We will relate the facts in a light most favorable to the jury verdict. See Management Computer Servs. v. Hawkins, Ash, Baptie & Co., 206 Wis. 2d 158, 192, 557 N.W.2d 67 (1996). Bauer planned to electrocute his wife while she was sleeping on April 23, 1997, by placing her hands in handcuffs that were hidden above and behind her bed and were wired to carry an electrical current when activated. However, each of the three times he entered her bedroom to commit the crime, she woke up. The next day, Bauer ordered an electric weapon to assist him in killing his wife. A few days later, Bauer's wife discovered the handcuff device, informed the police and Bauer was subsequently charged with the crimes listed above.

¶ 4. At trial, Bauer's cell mate testified that in July 1997, while Bauer was in jail awaiting trial, Bauer told him that he wanted to hire someone to kill his wife so that she could not testify against him. Bauer also told his cell mate that he wanted someone to kill a friend of his who was going to testify against him. The cell mate informed the police of Bauer's plan. A police officer posing as an assassin met with Bauer on two occasions. Bauer attempted to hire the officer to kill his wife, his friend and any witnesses, including children, who might be nearby, gangster style.

¶ 5. The trial court may admit or exclude evidence within its discretion. See State v. Hereford, 195 Wis. 2d 1054, 1065, 537 N.W.2d 62 (Ct. App. 1995). Even if the trial court applies a mistaken view of the law, we will not reverse if a proper legal analysis supports the trial court's conclusion. See id.

¶ 6. The categorization and admissibility of the evidence in this case is controlled by State v. Neuser, 191 Wis. 2d 131, 144, 528 N.W.2d 49 (Ct. App. 1995). In that case, shortly before trial, Neuser, who was accused of stabbing his girlfriend, called and threatened her. Neuser argued that evidence of this threat was inadmissible other acts evidence. But the Neuser court held that the evidence was not other acts. See id. "Rather, it was admissible evidence of Neuser's consciousness of guilt. It is generally acknowledged that evidence of criminal acts of an accused which are intended to obstruct justice or avoid punishment are admissible to prove a consciousness of guilt of the principal criminal charge." Id. (citation omitted).

¶ 7. Similarly, in this case, Bauer's attempt to solicit murder was intended to "obstruct justice [and] avoid punishment" and could be used to prove "consciousness of guilt." Bauer's solicitation of murder, which is much more extreme than Neuser's vague threats, indicates that like Neuser,' Bauer was conscious of his guilt and probably suspected that both his wife and friend could provide compelling testimony as to his guilt. Because Bauer's attempt to solicit murder was a criminal act intended to obstruct justice and avoid punishment which demonstrates consciousness of guilt, pursuant to Neuser, evidence related to it is not other acts evidence and is admissible.

¶ 8. By holding that the evidence in question is not other acts evidence and that it was properly admitted, we need not address Bauer's other three arguments. These arguments include that: the jury was improperly instructed regarding how to consider the evidence, Bauer's trial counsel was ineffective for failing to propose an adequate cautionary instruction regarding the other acts evidence and without the other acts evidence, the guilty verdict cannot be sustained.

By the Court. — Judgment affirmed.

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

       We have noticed a trend in criminal cases where the State and the defense, and sometimes the trial courts, are quick to classify evidence as "other acts" evidence. Based on this supposition, the issue becomes whether the act fits or fails to fit ■within the criteria for admissibility pursuant to WlS. STAT. § 904.04(2). However, the trial bar and bench should note that simply because an act can be factually classified as "different" — in time, place and, perhaps, manner than the act complained of — that different act is not necessarily "other acts" evidence in the eyes of the law.
      For example, in State v. Johnson, 184 Wis. 2d 324, 516 N.W.2d 463 (Ct. App. 1994) (Anderson, J., concurring), the State accused Johnson of battery and reckless endangerment of his former live-in girlfriend. Johnson tried to offer evidence to show that the former girlfriend fabricated the incident in order to misappropriate Johnson's possessions. Although we addressed the issue under the guise of an "other acts" analysis, we questioned whether evidence of the former girlfriend's acts of attempted misappropriation were properly considered other acts evidence because the evidence involved the same actors as the incident and went directly to Johnson's defense. See id. at 338-39. And Judge Anderson, concurring, was even more emphatic. He wrote that the evidence was not "other acts" evidence and that a "frame-by-frame" view of evidence was an inappropriate way to determine whether an "other acts" analysis is an order. See id. at 350.
      Similarly in this case, even though the attempted murder occurred on April 23, 1997, and the solicitation for murder did not occur during the same time and at the same place, evidence of the solicitation is not considered other acts evidence. While the solicitation evidence undoubtedly is a "different" act than the attempted murder charge that was before the jury, the State did not seek to admit this "different" evidence to show a similarity between the other act and the charged offense. Rather, the State sought to introduce the solicitation evidence to show Bauer's critical awareness, interest and concern about his guilt to the very charge before the jury. When the State or the defense offers a "different" act to show a similarity between that other act and the act complained of, then it is properly termed "other acts evidence" and the court should proceed pursuant to WlS. STAT. § 904.04(2). See State v. Sullivan, 216 Wis. 2d 768, 786-87, 576 N.W.2d 30 (1998). But the first question the lawyers and the trial court should ask is "what is the purpose of the State's intention to admit the evidence?" If it is not to show a similarity between the other act and the alleged act, then perhaps the parties should entertain the question of whether it is "other acts" evidence at all.


author: ANDERSON, J.

text:
    State of Wisconsin, Plaintiff-Appellant-Cross-Respondent, v. William W. Boyd, and One White Chevrolet Pickup Truck, VIN 1GCEK14R7WE253553, Defendants-Respondents-Cross-Appellants.
    Court of Appeals

      No. 99-2633.

      Submitted on briefs June 26, 2000.

    Decided August 23, 2000.

    2000 WI App 208
    (Also reported in 618 N.W.2d 251.)

      On behalf of the plaintiff-appellant-cross-respondent, the cause was submitted on the briefs of Joseph DeCecco, assistant district attorney of Sheboygan, Robert J. Wells, district attorney of Sheboygan, and James E. Doyle, attorney general.

      On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the brief of Richard L. Binder of Rohde Dales LLP, Sheboygan.
    Before Brown, P. J., Nettesheim and Anderson, JJ.

      Petition to review denied.

   ANDERSON, J.

¶ 1. This case concerns a forfeiture action under WlS. Stat. § 973.075(l)(b)lm (1997-98). The State appeals from a circuit court order concluding that if the entire $28,000 value of William W. Boyd's vehicle were forfeited, the forfeiture would violate the United States Constitution's prohibition of excessive fines. The order thus reduced the forfeited amount to $10,000. Boyd cross-appeals from the order, challenging the court's decision to accept an affidavit based on hearsay information as proof of service. We disagree with the merits of both the appeal and cross-appeal and affirm the order.

Background

¶ 2. Boyd was convicted of felony endangering safety by use of a dangerous weapon contrary to WlS. Stat. § 941.20(2)(a). This conviction arose from events occurring on August 5,1998. Boyd, angry at the city of Elkhart Lake Police Department because he had been arrested for driving while intoxicated three days before, drove around the police station's block twice, stopped his truck in front of the station, got out of the truck and fired a .22-caliber handgun at the police station's door. He then returned to his truck and drove away. A witness observing the events immediately phoned the authorities.

¶ 3. Boyd was subsequently charged, tried and found guilty in a jury verdict. At the sentencing hearing on December 15, 1998, he was personally served with a summons and complaint for the forfeiture action by Assistant District Attorney Joseph DeCecco in accordance with Wis. Stat. § 973.076. The forfeiture complaint alleged that Boyd's 1998 Chevrolet pickup truck should be forfeited to the State pursuant to Wis. Stat. § 973.075(l)(b)lm because Boyd used it to commit the felony. In his answer to the forfeiture complaint, Boyd argued as an affirmative defense that the State did not properly serve him with the summons and complaint. The State subsequently moved for summary judgment, asserting that no factual disputes remained in the action. Boyd responded with his own summary judgment motion in which he contended that the State's service was improper because DeCecco was a party to the action and that the forfeiture of his truck was an excessive fine. A hearing was held on the motions on April 21,1999.

¶ 4. At the April 21 hearing, the court granted the parties more time to brief issues raised during the course of the hearing. Following up on the request, Boyd's counsel wrote a May 14 letter to the court where he contended:

My search of the Court file for this case (98 CV 667) found no affidavit of service. My search of the criminal case file (98 CF 407) found a photocopy of a nonauthenticated Summons stamped "Proof of Service" on the front, with stamped and written information on the back .... The stamped information is not sufficient to prove service. . . . The required proof of service is not only not in the Court's file, to the extent it does exist it is not in the form of an affidavit and does not contain the information required by statute. See § 801.10(4)(a), Stats.. .. Defendant Boyd submits that service and proof of service has failed, and the action should be dismissed.

The court addressed this issue at a May 28,1999 hearing. It asked DeCecco whether he served an authenticated copy of the summons and complaint on Boyd. Being unfamiliar with service of process in a civil matter, DeCecco admitted that he was unsure whether he served Boyd with an authenticated copy. The court noted that the record was deficient because the State did not file an affidavit or certificate of service. It granted the State additional time to provide an affidavit.

¶ 5. The next hearing was held on June 2, 1999. At that time, the State argued that Boyd had waived his opportunity to contest the authenticity of the service of the summons and complaint because he had not previously raised it. Boyd countered that he questioned the sufficiency of the service of process as an affirmative defense in his answer. He further contended that the affidavit submitted by the State was improper because it was based on hearsay information. Boyd's counsel argued:

Up until today, we had no affidavit of service, of course, as the Court is well aware. Today we're given an affidavit which is not proper, because it is not based on the personal knowledge of the affiant, so your Honor, I believe that this affidavit is not — is not appropriate and not sufficient.

The court announced its decision ón the summary judgment motions shortly thereafter. On the issue of the sufficiency of service, the court found that the State's affidavit adequately proved that the service complied with the appropriate statutes. It also found that DeCecco was not a party to the action within the meaning of the statutes governing service. Regarding the claim that the forfeiture was an excessive fine, the court determined that this issue was not appropriate for summary judgment and set a fact-finding hearing for the matter.

¶ 6. The hearing on the excessive fine issue was held on September 1,1999. After hearing the evidence, the court ruled that Boyd's truck, valued at $28,000, should be sold and the first $10,000 from the proceeds should go to the Elkhart Lake police department. The court noted that in reaching this conclusion it had considered and weighed the following factors: the public's interest in stopping weapons from being transported and used in crimes; the fact that there were no injuries and only nominal damage resulting from Boyd's act; its observation that the State usually did not pursue forfeiture in cases that were not drug-related or fourth-offense drunk driving crimes; the truck was registered as a farm vehicle and not used for primarily personal use; there was no lien on the truck, which effectively increased the penalty on Boyd; and the $28,000 forfeiture would be a disproportionate penalty for an offense carrying a maximum fine of $10,000. The State appeals the reduction in the forfeiture amount. Boyd cross-appeals, contesting the court's decision that the proof of service was sufficient.

Discussion

Appeal

¶ 7. We begin our discussion by addressing whether the forfeiture of Boyd's $28,000 truck violates the Excessive Fines Clause of the Eighth Amendment. This is a constitutional issue which we review de novo. See State v. Hammad, 212 Wis. 2d 343, 347 — 48, 569 N.W.2d 68 (Ct. App. 1997). If the goal of a civil forfeiture action is, at least in part, punishment, the forfeiture may not be constitutionally excessive. See Austin v. United States, 509 U.S. 602, 610 (1993). We have previously determined that forfeitures under Wis. Stat. § 973.075(l)(b) fall within the purview of the Excessive Fines Clause and are subject to its limitations. See Hammad, 212 Wis. 2d at 352.

¶ 8. Presently, the leading Wisconsin authority on determining whether a civil forfeiture violates the Excessive Fines Clause is Hammad. Attempting to clarify which of the "bumper crop of tests" should be used in this state, the Hammad court instructed that the multi-factor test in State v. Seraphine, 266 Wis. 118, 62 N.W.2d 403 (1954), was the correct analysis to apply. See Hammad, 212 Wis. 2d at 355-56. The Sera-phine standard was explained as:

In determining whether a fine authorized by statute is excessive in the constitutional sense, due regard must be had to the object designed to be accomplished, to the importance and magnitude of the public interest sought to be protected, to the circumstances and the nature of the act for which it is imposed, and in some instances, to the ability of accused to pay. In order to justify the court in interfering and setting aside a judgment for a fine authorized by statute, the fine imposed must be so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.

Hammad, 212 Wis. 2d at 355-56 (quoting Seraphine, 266 Wis. at 121-22).

¶ 9. The thrust of the State's argument on appeal is that the circuit court incorrectly interpreted the multi-factor Seraphine standard when it found that the amount of Boyd's forfeiture was excessive. However, since the Hammad court declared that the Seraphine standard was the test for this issue, the United States Supreme Court has addressed it and resolved the question of which test should be applied to evaluate if a fine is excessive. That determination was made in United States v. Bajakajian, 524 U.S. 321 (1998).

¶ 10. In Bajakajian, Bajakajian willfully attempted to remove $357,144 in currency from this country without complying with the requirement in 31 U.S.C. § 5316(a)(1)(A) (1994) to report the removal of sums in excess of $10,000. See Bajakajian, 524 U.S. at 324-25. The government seized the entire amount and instituted forfeiture proceedings pursuant to 18 U.S.C. § 982(a)(1) (1994), which authorized the seizure of any property involved in a § 5316 offense. See Bajakajian, 524 U.S. at 325. The district court ordered a reduced forfeiture of $15,000, refusing to seize the entire sum on Eighth Amendment grounds. See id. at 326. In addition to this forfeiture, the court ordered a sentence of three years of probation and a fine of $5000 — the maximum fine under the federal sentencing guidelines. See id. The government appealed. See id.

¶ 11. To weigh the excessiveness of the forfeiture in the Bajakajian appeal, the Supreme Court adopted the standard commonly referred to as "the proportionality test." See id. at 333-34. It held that "[t]he touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense it is designed to punish." Id. at 334. The precise nature of this relationship was described as follows: "[A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." Id.

¶ 12. Applying the proportionality test, the Bajakajian Court held that forfeiting the entire $357,144 violated the Excessive Fines Clause. See id. at 337. In reaching this conclusion, it first considered the gravity of the offense. See id. at 336-37. The Court emphasized Bajakajian's culpability rather than the crime's severity, noting that his crime was "solely a reporting offense." See id. at 337. Because Bajakajian did not commit any other illegal activities, the Court stated that he did not fit into the "class of persons for whom the statute was principally designed: He is not a money launderer, a drug trafficker, or a tax evader." Id. at 338. The Court also considered that the maximum fine that Bajakajian could have received for his crime was $5,000. See id. Additionally, the Court emphasized that Bajakajian's conduct caused minimal harm and "affected only one party, the Government." See id. at 339.

¶ 13. Considering these factors, the Court determined that full forfeiture would be disproportionate to the offense. See id. at 339-40. It remarked that full forfeiture would be "larger than the $5,000 fine imposed by the District Court by many orders of magnitude, and it bears no articulable correlation to any injury suffered by the Government." Id. at 340.

¶ 14. In the simplest terms, the Bajakajian Court applied the proportionality test by considering these factors: the nature of the offense, the purpose for enacting the statute, the fine commonly imposed upon similarly situated offenders and the harm resulting from the defendant's conduct. These factors are strikingly similar, but yet not identical, to those in the Seraphine standard.

¶ 15. We will now apply Bajakajian's proportionality test to the present case. Boyd's conduct does constitute a serious offense. With great fortune, the harm from his conduct was minimal; nevertheless, we do not overlook the recklessness and the potential for severe injuries that could have resulted from it. Even so, we are troubled by the disparity in this case between the forfeiture amount, $28,000, and the maximum fine for the crime, $10,000.

¶ 16. The State suggests that when a case concerns a civil forfeiture, the amount of the monetary fine that could be imposed should not be considered. It argues:

With in rem vehicle forfeitures, however, it is the Defendant, and only the Defendant, who decides the value of the vehicle to be forfeited by choosing that vehicle to use in the commission of a felony.

Although we agree that an offender puts his or her property at risk by using it to commit a felony, many cases, in addition to Bajakajian, have emphasized that where the value of the forfeited property has greatly exceeded the underlying crime's potential fine, the forfeiture was excessive. See, e.g., United States v. 18755 N. Bay Rd., 13 F.3d 1493, 1498-99 (11th Cir. 1994) (holding that forfeiture of property valued at $150,000 was excessive where the maximum statutory fine was $20,000). Moreover, whether a forfeiture would be far in excess of the maximum fine is a factor appropriately considered under the Bajakajian test. See Bajakajian, 524 U.S. at 336-37. Even if a forfeiture is greater than the maximum fine, the forfeiture is not automatically deemed excessive. See id. n.ll. Instead, this circumstance is a factor to be weighed against the others and will only be found to be excessive if the balancing reveals that the forfeiture is "grossly disproportional to the gravity of the defendant's offense." Id. at 337.

¶ 17. Although we acknowledge that Boyd's conduct was a serious offense, we nonetheless conclude that imposing the full forfeiture would be an excessive fine. The harm that Boyd caused was minimal and will be sufficiently satisfied from the reduced forfeiture amount of $10,000. As the State points out, Boyd's conduct was highly unusual "because not many people in Sheboygan County fire shots into police stations." The purpose of the forfeiture statute — to deter offenders from using their vehicles to commit a felony — is, not significantly impacted as this is a situation not likely to recur. The full forfeiture amount is also significantly greater than the crime's maximum fine. Weighing all these factors, we hold that a full forfeiture would be grossly disproportionate to the gravity of the offense and affirm the circuit court's reduction of the forfeiture amount.

Cross-Appeal

¶ 18. In his cross-appeal, Boyd asserts that the circuit court should have dismissed the forfeiture complaint against him because the State's proof of service was an affidavit utilizing hearsay information. He also initiates a claim that the affidavit cannot be based on a person's information and belief. The State counters that Boyd has waived these arguments by not specifically raising them before the court reached the merits of the case.

¶ 19. Boyd claims that his argument is properly before the court because: (1) he raised in his answer the affirmative defense that the service of process was inadequate, and (2) the affidavit certifying service was not introduced until the June 2,1999 hearing, at which Boyd promptly made an objection to its contents. The record reveals that Boyd did object to the affidavit's reliance on hearsay information. The first mention, however, of Boyd's information and belief claim occurs on appeal. Both of Boyd's arguments are similar. The gist of both of these claims is an attack on the adequacy of the affidavit to prove service. For the sake of brevity, we consider these arguments together.

¶ 20. In Studelska v. Avercamp, 178 Wis. 2d 457, 460-64, 504 N.W.2d 125 (Ct. App. 1993), we held that in our notice-pleading state, a general objection to service of process in an affirmative defense was sufficient notice to the opposing party that the content of the summons and complaint would later be challenged. Boyd raised this issue as an affirmative defense; therefore, the Studelska reasoning supports Boyd's assertion that his claims are not waived. In addition, whether to apply the waiver rule in a particular case is a decision left to this court's discretion. See County of Racine v. Smith, 122 Wis. 2d 431, 434, 362 N.W.2d 439 (Ct. App. 1984). We will not apply the waiver rule to Boyd's arguments under the present circumstances.

¶ 21. We now turn to the merits of Boyd's claim. In response to Boyd's challenge to the service of process, the State submitted to the court a "SWORN AFFIDAVIT OF SERVICE," in which DeCecco averred in relevant part:

(6) To the best of my knowledge and belief, I served Defendant Boyd with an authenticated copy of the Summons based on the following:
(c) On June 1, 1999, your Affiant spoke with Assistant Clerk of Courts Edie Sagal who stated that the time stamping and affixing the "CV" number on the documents constituted "authentication" as interpreted by the Clerk's office.
(d) ACC Sagal also informed your Affiant that it is standard procedure to so "authenticate" all civil Summons and Complaints submitted for processing to that office.
(e) Your Affiant served the Defendant with the Summons and Complaint received from the Clerk's office after processing.

Boyd argues that this affidavit does not conform to the requirements of WlS. Stat. § 801.10(4) because it does not make an "unqualified statement that service of an authenticated copy of the summons was accomplished." He contends that DeCecco is only guessing about whether he served Boyd with an authenticated copy because his declaration states that proper service was done "[t]o the best of [his] knowledge and belief." Moreover, in the affidavit, DeCecco does not rely on his personal knowledge to attest that an authenticated summons was served on Boyd, but instead refers to a third person's knowledge about the clerk's office's processing procedures.

¶ 22. The requirements for an effective affidavit of service are declared in WlS. Stat. § 801.10(4)(a).

Personal or substituted personal service shall be proved by the affidavit of the server indicating the time and date, place and manner of service, that the server is an adult resident of the state of service not a party to the action, that the server knew the person served to be the defendant named in the summons and that the server delivered to and left with the defendant an authenticated copy of the summons. . . . The affidavit or certificate constituting proof of service under this paragraph may be made on an authenticated copy of the summons or as a separate document.

Id.

¶ 23. When resolving a question about the adequacy of service of process, a court has broad discretion regarding what it will consider for proof of the matter. See Dietrich v. Elliott, 190 Wis. 2d 816, 826, 528 N.W.2d 17 (Ct. App. 1995). An individual's uncontra-dicted affidavit certifying that service was made is generally considered adequate proof of service. Cf. id. In addition to DeCecco's affidavit, the court also relied on the document's time stamps to establish proof of service. "Specifically in regards to authentication, I think it lends some credence to Mr. DeCecco's argument that in fact the original [summons] was filed at 10:23 and the copies were served at 12:15. I have no doubt that any copy submitted to the clerk was authenticated."

¶ 24. The State contends that DeCecco's affidavit complied with the requirements in WlS. STAT. § 801.10(4). The affidavit indicated the time, date, place and manner of the delivery of an authenticated copy of the summons; and it stated, the State argues, that DeCecco was an adult state resident who knew who Boyd was. The State further maintains that these averments are all that the statute requires for the certification of service. We agree. Section 801.10(4) does not state that the affiant has to have firsthand knowledge of how the documents were authenticated, nor does it state that the affiant's statements must be unqualified. All that the statute requires is that the affiant affirm that an authenticated copy of the summons was served. DeCecco's affidavit fulfills this requirement, and, accordingly, we dismiss Boyd's contention to the contrary.

Conclusion

¶ 25. In summary, utilizing the Bajakajian proportionality test, we conclude that a full forfeiture in this case would have been excessive within the meaning of the Excessive Fines Clause of the Eighth Amendment. We also determine that the State's affidavit proving service complied with WlS. Stat. § 801.10(4). Consequently, the order is affirmed.

By the Court. — Order affirmed.

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

       The Eighth Amendment to the United States Constitution proclaims: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." U.S. Const, amend. VIII.


text:
    The Equitable Bank, S.S.B., Plaintiff, v. Charles Chabron, a/k/a Charles K. Chabron, and Eva Chabron, a/k/a Eva I. Chabron, Defendants-Appellants, James C. McDonald and Rita McDonald, Defendants-Respondents, Stillbrook Hollow Condominium Owners Association, Inc., Defendant.
    Court of Appeals

      No. 99-2639.

      Submitted on briefs July 12, 2000.

    Decided August 23, 2000.

    2000 WI App 210
    (Also reported in 618 N.W.2d 262.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Leonard G. Leverson of Kravit, Gass, Hovel & Leitner, S.C., Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Alan H. Deutch of Deutch & Weiss, Glendale.
    Before Brown, P.J., Nettesheim and Anderson, JJ.

      Petition to review denied.

   ANDERSON, J.

¶ 1. This appeal concerns a dispute over the surplus funds resulting from a mortgage foreclosure sale of a condominium property. Charles and Eva Chabron appeal from an order determining that James C. and Rita McDonald were entitled to the entire surplus because of an in-court, oral stipulation made in a companion case. The Chabrons contend that (1) the stipulation was not a valid mortgage under Wis. Stat. § 706.02 (1997-98), and (2) the homestead exemption in Wis. Stat. § 815.20(1) should be applied to the surplus, entitling them to $40,000 from the surplus proceeds. We determine that the stipulation satisfied the requirements for a valid mortgage and affirm the circuit court's decision in that regard. However, because the stipulation was a conveyance without the requisite signatures, we reverse the court's conclusion that the Chabrons were not entitled to their homestead exemption. The Chabrons are entitled to the $40,000 homestead exemption and this amount should be deducted from the surplus resulting from the property's sale.

¶ 2. The present case is not the first appeal resulting from the Chabrons' failed condominium project, Stillbrook Hollow Condominiums (Stillbrook Hollow). The Chabrons decided to develop their property into five condominiums. The McDonalds entered into a contract with the Chabrons for one of the condominiums. Before their unit was completed, the McDonalds rescinded the contract and demanded a refund of their $225,000 payment. The Chabrons did not refund the McDonalds' money, and the McDonalds brought suit against them for breach of contract. After the lawsuit was filed, a lis pendens was filed against the property preventing its sale.

¶ 3. That lawsuit went to trial. During the trial, the parties' attorneys made an in-court, oral agreement to terms that resolved the case. This oral agreement was never reduced to writing. Later, the parties disagreed about what the agreement had been. The Chabrons moved the court for relief from the agreement. A hearing was held, and the court denied the Chabrons' motion. In reaching its decision, the court determined that the parties' in-court agreement was a stipulation, and it also resolved what the parties agreed to in that stipulation. Continuing to argue that they were not bound by the stipulation, the Chabrons appealed the circuit court's decision to this court; we summarily affirmed. See McDonald v. Chabron, No. 98-1882, unpublished slip op. (Wis. Ct. App. Apr. 14, 1999).

¶ 4. In the meantime, the Chabrons were unable to make their mortgage payments. The Equitable Bank, S.S.B., (Equitable) commenced a foreclosure action against them. The McDonalds filed suit against Equitable, asserting that the stipulation gave them a lien with a priority interest in the property. Summary judgment was entered in favor of Equitable. Noting that Equitable did have a priority interest in the property, we affirmed the judgment on appeal. See Equitable Bank, S.S.B. v. McDonald, No. 98-3620, unpublished slip op. (Wis. Ct. App. Nov. 3, 1999).

¶ 5. Before their property was sold, the Chabrons received court recognition that one of the condominium units was their homestead. As such, the Chabrons continued to live in their unit of Stillbrook Hollow during the six-month redemption period.

¶ 6. The Chabrons were unable to reclaim the property. The condominiums were foreclosed and sold at a sheriffs sale. At the sale, the McDonalds were the highest bidders, bidding $550,000. From the sale of the property, Equitable was paid $417,503.13 to settle the Chabrons' mortgage note. That left a surplus of $132,496.87. The McDonalds and the Chabrons both asserted rights to the surplus. The Chabrons argued that they had a $40,000 homestead exemption that should be taken from the surplus. The McDonalds contended that the stipulation between the parties was to be construed as a mortgage, to which the homestead exemption does not apply. The dispute was brought before the court. The court agreed with the McDonalds and concluded that the Chabrons were not entitled to the homestead exemption. The Chabrons appeal.

¶ 7. On appeal, the Chabrons argue that the circuit court erred by concluding that the parties' stipulation was a valid mortgage trumping their entitlement to a $40,000 homestead exemption from the surplus funds after the condominiums were sold. They dispute that the stipulation constituted a mortgage only insofar as it determines if the homestead exemption applies. Homesteads are statutorily exempt from judgment liens but not from mortgage foreclosures. Accordingly, unless the Chabrons successfully demonstrate that the stipulation is not a valid mortgage, they lose the statutory protection afforded homestead property. Determining whether a stipulation conveying property satisfies the requirements for a mortgage involves statutory interpretation, a question of law that we review de novo. See Weber v. Weber, 176 Wis. 2d 1085, 1091, 501 N.W.2d 413 (1993).

¶ 8. Wisconsin Stat. § 706.02 details the requirements for a conveyance of property. One of these requirements is that the conveyance must be signed by all the parties. See § 706.02(l)(e). The Chabrons contend that the stipulation cannot be regarded as a valid mortgage conveying their homestead because they never signed it. To resolve the Chabrons' argument, we will first consider if the stipulation was indeed a valid mortgage, and then we will evaluate whether the homestead exemption is applicable to their case.

¶ 9. Despite the Chabrons' arguments to the contrary, we conclude that the oral stipulation was a mortgage. We do so on the basis of Klemme v. Schoneman, 165 Wis. 2d 250, 477 N.W.2d 77 (Ct. App. 1991). In Klemme, we addressed whether a stipulation in a divorce action granted a mortgage interest in property that could not be discharged in bankruptcy. We rejected the argument that a mortgage required a formal document and instead looked to see if the stipulation had the characteristics of a classic mortgage. See id. at 259-60. We noted that the Klemme stipulation contained the following "mortgage ingredients": (1) the conveyee's interest was expressed as a lien; (2) the lien attached to specific property; (3) the lien was a guarantee that a certain sum of money would be paid; (4) interest was earned on the debt; and (5) the debt had a due date. See id. at 258-59. We resolve that the stipulation in question contains these ingredients. We have previously held that the McDonalds possessed an equitable lien to one condominium unit and liens to the other units. See Equitable Bank, unpublished slip op. at ¶¶ 8, 9. A review of the stipulation also indicates that the lien was a guarantee for a certain sum of money, bearing interest at a specific rate and due on a specific date.

¶ 10. Moreover, we held in Klemme that the "most compelling and controlling" mortgage characteristic was:

Whatever be the form of the transaction, if intended as a security for money, it is a mortgage and the right of redemption attaches to it.... The purpose of the instrument is the controlling feature under all circumstances. If that is security . . . the instrument is treated as a mortgage and nothing else.

Klemme, 165 Wis. 2d at 259 (quoting Wozniak v. Wozniak, 121 Wis. 2d 330, 336, 359 N.W.2d 147 (1984)). The purpose of the McDonalds' lien is clear. It was the McDonalds' security to exact from the Chabrons their refund for the condominium investment. As in Klemme, we conclude that it is this aspect — the fact that the stipulation was a security — that truly controls this case, regardless of the absence of other formal mortgage characteristics. We agree with the circuit court's resolution that the stipulation constituted a mortgage.

¶ 11. Supporting their assertion that they are entitled to the homestead exemption, the Chabrons rely primarily on Weber. In Weber, the issue under consideration was whether a mortgage was void as a homestead conveyance when it did not have the appropriate signatures. Acknowledging a long history of public policy favoring the homestead over other property interests, the Weber court found that the signature requirement for conveying a homestead was a substantive right, a right that could not be derogated by the application of a civil procedure rule. See Weber, 176 Wis. 2d at 1097. The court stated, "In contrast to the descriptive requirements listed in sec. 706.02, the homestead signature requirement must be waived affirmatively by the spouse through the actual signing of the mortgage." Id.

¶ 12. In the present case, the Chabrons never signed a document conveying their interest in Stillb-rook Hollow. The in-court, oral stipulation that we have construed to be a mortgage was defined in written form by the circuit court, but the McDonalds never sought the Chabrons' signatures upon it to evidence the conveyance. The Weber rule is clear. Although the McDonalds do have a valid interest in the property, the stipulation cannot be construed as a "mortgage" for homestead purposes. As Weber instructs, when a homestead conveyance does not satisfy the requirements of Wis. Stat. § 706.02, the conveyance is not exempt from the homestead provision of Wis. Stat. § 815.20(1). See Weber, 176 Wis. 2d at 1099-1100. Applying the Weber rule in the instant case, we determine that the Chabrons should receive the $40,000 homestead exemption from the surplus proceeds after their property was foreclosed and sold. We reverse this component of the circuit court's decision.

¶ 13. In sum, we conclude that under KLemme, the parties' stipulation gives the McDonalds a mortgage interest in Stillbrook Hollow. In the context of the homestead statute, however, Weber instructs that the requirement that a homestead conveyance bear the conveyors' signatures cannot be abridged. Because the stipulation lacks the Chabrons' signatures, it thus is riot considered a mortgage trumping the homestead exemption. We affirm the portion of the court's order concluding that the stipulation was a mortgage, but reverse the portion denying the Chabrons the homestead exemption.

¶ 14. Costs are denied to all parties.

By the Court. — Order affirmed in part and reversed in part.

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

       In relevant parts, the court found that the McDonalds and the Chabrons consented to the following stipulation:
      A. The defendants, CHARLES K. CHABRON, EVA I. CHABRON and CH BUILDERS, LLC., (Chabrons) agree jointly and severally to pay the plaintiffs, JAMES C. MCDONALD and RITA T. MCDONALD (McDonalds) the sum of $300,000 ... on or before June 1,1997.... That upon the full and complete payment of the amount... owing, the interest of McDonalds in the property... will be extinguished. Time is of the essence as to all dates. •
      B. That the amount owing to McDonalds will be and is hereby secured by a recording on the entire condominium property, which is ... known to be ... Stillbrook Hollow Condominiums....
      C. It is stipulated and agreed that the court will enter an order that McDonalds do and did have an interest in the property ... known as Stillbrook Hollow Condominiums, that said interest is an interest superior to any interest of the Chabrons, that said interest was created and exists both in law and equity and by operation of Wisconsin Statutes Section 779.02(5).

       The homestead exemption is explained in WlS. Stat. § 815.20(1):
      An exempt homestead as defined in s. 990.01(14) selected by a resident owner and occupied by him or her shall be exempt from execution, from the lien of every judgment and from liability for the debts of the owner to the amount of $40,000, except mortgages, laborers', mechanics' and purchase money liens and taxes and except as otherwise provided... .