author: DEININGER, J.

text:
    L. M. S., Plaintiff-Respondent, v. William Earl Atkinson, Defendant-Appellant.

    Court of Appeals

      No. 2005AP1450.

      Submitted on briefs December 7, 2005.

      —Decided May 25, 2006.

    2006 WI App 116
    (Also reported in 718 N.W.2d 118.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Marie A. Stanton and Andrew W. Erlandson of Hurley, Burish & Milliken S.C., Madison.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Scott K. McCarthy of Roethe Krohn Pope LLP, Milton.
    Before Lundsten, EJ., Deininger and Higginbotham, JJ.

       Petition to review filed.

   DEININGER, J.

¶ 1. William Atkinson appeals a judgment awarding $103,000 plus costs to L.M.S., with whom the court found Atkinson had "numerous sexual contacts .. . over a period of at least two years" while she was a minor. Atkinson claims the circuit court, in denying his motion for a continuance and other pretrial relief, wrongly penalized him for his attorneys' failures. He also claims the circuit court erred by relying in part on "other acts" evidence to reject his testimony that any touching of the plaintiffs breasts, buttocks and crotch area was inadvertent and incidental to his engaging in harmless tickling and horseplay with her. Finally, Atkinson complains that the circuit court's award of damages for future medical expenses is not supported by credible evidence.

¶ 2. We affirm on all issues. Atkinson has failed to demonstrate that he suffered any specific prejudice to his defense of the plaintiffs claims on account of the circuit court's denial of his pre-trial motion for a continuance and other relief. We also conclude that, because Atkinson did not object to the admission of evidence that he had previously been reprimanded by the Chiropractic Examining Board for inappropriate conduct toward female patients, he waived his claim that the circuit court improperly considered that evidence. Finally, we affirm the future medical expense award because it is adequately supported by expert testimony given at trial.

BACKGROUND

¶ 3. Atkinson does not directly challenge the circuit court's factual finding that Atkinson engaged in the improper conduct the plaintiff testified to at trial. Neither does he question the court's conclusion that, based on his tortious conduct, Atkinson should pay the plaintiff $60,000 in compensatory damages for past and future pain and suffering and $25,000 in punitive damages. Because Atkinson's only claims of error relate to pre-trial rulings by the circuit court, the court's consideration of one item of evidence and its award for future treatment expenses, we provide only a brief summary of the background facts that were testified to at trial.

¶ 4. The plaintiffs mother became romantically involved with Atkinson and moved into his residence, accompanied by her two children. The plaintiff, L.M.S., was then eleven-years-old. Several years later, when she was fifteen, L.M.S. accused Atkinson of touching her breasts, buttocks and crotch area on numerous occasions, beginning when she was "about 12 or 13." Shortly after L.M.S. made these accusations, her mother and the children moved out of Atkinson's residence. L.M.S. subsequently brought this action, alleging that Atkinson had "made continued, unwanted sexual advances, sexual assaults/batteries, and offensive bodily contacts." Atkinson retained a Milwaukee law firm to represent him in the case.

¶ 5. Pursuant to a May 2004 scheduling order, entered after a scheduling conference attended by counsel for both parties, the case was set for a three-day trial commencing March 21, 2005, with a final pretrial to be held on March 16. The order also specified deadlines for each party to disclose expert and lay witnesses. L.M.S. moved for summary judgment on the question whether Atkinson committed the alleged tortious acts based on Atkinson's failure to respond to the plaintiffs requests for admissions of the acts. See Wis. Stat. § 804.11(l)(b) (2003-04) ("The matter is admitted unless, within 30 days after service of the request,... the party to whom the request is directed serves ... a written answer or objection."). At a February 3, 2005 hearing on the plaintiffs motion, Atkinson appeared in person and by an attorney from the firm representing him in the matter. This attorney informed the court that he was not familiar with the case and was only standing in for his partner who was lead counsel for the defendant and who apparently had a scheduling conflict for that time and date.

¶ 6. The circuit court made several rulings at the February 3 hearing. First, the court ruled that Atkinson was precluded from calling any witnesses, expert or lay, at trial because he failed to disclose his witnesses by the deadlines specified in the court's scheduling order. Second, the court ruled that the matters stated in plaintiffs requested admissions were deemed admitted in light of Atkinson's failure to file a response. The court agreed, however, to hold these rulings "in abeyance" for several days to allow Atkinson's counsel to submit materials from which the court might conclude the defense failures were due to excusable neglect. Finally, the court withheld a ruling on the plaintiffs summary judgment motion and continued the hearing until February 8. The court directed the attorney responsible for Atkinson's defense to file a motion for a finding of excusable neglect, with any supporting documents, the day prior to the continued hearing, and further directed that attorney to be present at the continued hearing.

¶ 7. Atkinson's counsel filed, a motion asking the court to (1) vacate the prior ruling deeming matters admitted, and (2) extend additional time for the defense to file a witness list and respond to "various" unspecified pleadings. At the continued hearing on February 8, 2005, Atkinson appeared in person and by the attorney whom the court had directed to appear with Atkinson. The attorney explained that health problems had prevented him from adequately representing Atkinson's interests in the litigation, and that Atkinson now wanted to terminate the representation by the present law firm and obtain different attorneys. The circuit court reviewed the standards for permitting the withdrawal of admissions under Wis. Stat. § 804.11(2) and reaffirmed its ruling that the matters specified in plaintiffs request for admissions were deemed admitted and that Atkinson would not be permitted to withdraw the deemed admissions. The court noted that "I still don't know if Mr. Atkinson is going to admit to some or all of the Requests for Admissions. There have been no answers at all, not even late, not even with a motion to extend the time and say, this is what I would have answered."

¶ 8. Regarding the naming of witnesses, the circuit court observed that Atkinson's counsel's request for additional time did not identify any witnesses he would call if given a renewed opportunity to do so. When questioned by the court whether he was prepared to disclose a list of witnesses, Atkinson's attorney replied that he was not. The court noted that the only excuse Atkinson's counsel had proffered related to his present health problems, which the court concluded "started ... after the damage was done in this case." Moreover, because plaintiffs counsel had timely disclosed his witnesses and their expected testimony, the court concluded that "it's prejudicial to [LJMLS.'s counsel] not to have a clue of what Mr. Atkinson's intentions are." The court also reasoned that, because the case involved a series of alleged incidents between the plaintiff and Atkinson that were apparently not witnessed by any third parties, it was unlikely that Atkinson would be able to name any fact witnesses other than himself.

¶ 9. Concluding that Atkinson's counsel had not established excusable neglect, the court imposed what it deemed a reasonable sanction for violating the scheduling order: "I don't intend to render a judgment by default against Mr. Atkinson .... Nor do I intend to, by letting the . . . [a]dmissions stand .. . imply that the facts admitted will be received in evidence; they could be objectionable." Rather, the court denied the plaintiffs motion for summary judgment on liability and indicated it would conduct the trial on both liability and damages. The court stated it would permit Atkinson to testify at trial "regardless of the answers he has disclosed." The court also said it would address the admissibility of any deemed admissions that might be objected to at trial. Finally, the court denied Atkinson's requests for a continuance and for permission for present counsel to withdraw, noting that Atkinson had not identified an attorney who would take over the representation for the scheduled trial dates, March 21-23, 2005.

¶ 10. On February 23, 2005, the court received a letter signed by Atkinson in which he asked the court to permit him to withdraw his admissions, grant him "a reasonable time to name witnesses, and adjourn the trial to allow [him] to secure alternate counsel." Atkinson acknowledged in the letter that he had received assistance in preparing it from unnamed "other counsel." The letter was accompanied by a ten-page affidavit, plus attached exhibits, in which Atkinson detailed his present counsel's failings and his increasing exasperation with the inadequate representation he was receiving. The court replied in a letter to Atkinson that it would not act on a letter request and said it would only consider his request if a "proper motion" was filed, "with proper notice to the opposing party and to your attorneys with a specific hearing date."

¶ 11. Atkinson's counsel of record filed a motion on March 10, 2005 "to withdraw admissions, for leave to reopen discovery and to name witnesses and to adjourn trial." The grounds cited in the motion for granting the requested relief was "the points and authorities set forth" in Atkinson's previous letter to the court, in which Atkinson maintained the court had improperly sanctioned him for the faults of his attorney.

¶ 12. The court addressed this latest motion at the previously scheduled final pretrial conference on March 16, 2005. Atkinson appeared at the hearing/conference, but no one from Atkinson's law firm of record was present. The circuit court noted that it had "specifically denied any motion to withdraw" at the previous hearing and that counsel of record "were not absolved of the necessity to appear at the pretrial conference." The court also stated that it would send transcripts of the February 8 and March 16 proceedings to the Office of Lawyer Regulation, observing that "this lawsuit is turning into a legal malpractice action against" Atkinson's counsel of record. The court also stated that, at this point in the proceedings, "the real question is not whether [Atkinson's attorneys] have been negligent, and not whether their neglect was excusable, because I have already found that their neglect was not excusable, the real question remaining is whether the attorneys' conduct with the client has effectively sanctioned the client for the attorneys' conduct."

¶ 13. The court then compared the conduct of Atkinson's attorneys to the conduct of the attorneys in Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 470 N.W.2d 859 (1991). The court concluded that the present conduct was not so egregious that it should order the "extreme" sanction of judgment by default, as the trial court effectively had done in Johnson by dismissing the plaintiffs action with prejudice. It further concluded that the sanctions imposed (denial of the requests to withdraw admissions, to extend the time for disclosing witnesses and to continue the case) were "proportionate to the egregious nature of [Atkinson's attorneys'] errors, relating directly to the harm that their errors caused the plaintiff." The court considered the fact that Atkinson attempted to secure the services of only one other law firm, which had refused to take the case unless the trial date were postponed. The court noted that Atkinson could have made, but did not make, further attempts to find an attorney who would be able to assume his representation for the scheduled bench trial.

¶ 14. Atkinson had received a copy of the scheduling order from his attorney and the court concluded he could have monitored his attorneys' compliance with it. The court expressed its belief that Atkinson was capable of monitoring and assessing his attorney's performance because he had a professional degree, acknowledged having testified in court as an expert witness on numerous occasions and, thus, had experience interacting with attorneys. The court also determined that Atkinson's lengthy affidavit and copies of his correspondence with his attorneys showed that Atkinson was aware of their inadequate representation long before the February 2005 court proceedings but failed to take any action to obtain other counsel until a matter of weeks before the scheduled trial date.

¶ 15. The court concluded that, because Atkinson's "[n]eglect was not accidental" and his concerns were not something that "suddenly came up," it would not be fair to permit Atkinson, "who .. .is far more sophisticated than the average person," "to wipe the slate clean." The court summarized its conclusion as follows:

This motion is denied. We will go to trial on Monday. I find that under these circumstances, at some point or another, there is a responsibility on the part of Mr. Atkinson for the acts of his attorney. He knew what was going on, or what wasn't going on, and he did nothing about it until it became an almost inevitability that he would have to either call their bluff and go to trial on this case, or ask for a continuance. And a continuance for [a] three day [trial], for me, would be into 2006. And that's simply unfair to the plaintiff.

¶ 16. The case was tried to the court as scheduled on March 21 and 22, 2005. Atkinson was represented at trial by his attorney of record, who questioned witnesses and made argument on his behalf. Four witnesses testified: L.M.S., who was now eighteen; her mother; L.M.S.'s treating psychologist; and Atkinson. The court issued a written decision two weeks after trial, in which it found for the plaintiff and awarded her damages for past and future pain and suffering ($60,000), "future psychological treatment expenses" ($18,000), and punitive damages ($25,000). The court subsequently entered a judgment against Atkinson for $103,000, plus costs. Atkinson appeals, asking us to reverse and remand the case for "reasonable" pretrial proceedings and a new trial.

ANALYSIS

Denial of Request for Continuance and Relief from Sanctions

¶ 17. Atkinson first and principally argues that the circuit court erroneously concluded that both he and his counsel were at fault for mishandling his defense. Relying on Charolais Breeding Ranches, Ltd. v. Wiegel, 92 Wis. 2d 498, 285 N.W.2d 720 (1979), Atkinson contends the circuit court erred by imputing his attorneys' negligence to him because "he acted as a reasonable and prudent person in engaging a lawyer of good reputation, has relied upon him to protect his rights, and has made reasonable inquiry concerning the proceedings." Id. at 514. Accordingly, Atkinson maintains the circuit court should have granted his requests for a continuance, for withdrawal of his deemed admissions and for new deadlines for conducting discovery and disclosing witnesses.

¶ 18. We review the decision to grant or deny a motion for a continuance for an erroneous exercise of discretion. Schwab v. Baribeau Implement Co., 163 Wis. 2d 208, 216, 471 N.W.2d 244 (Ct. App. 1991). We will not reverse a circuit court's denial of discretionary relief if our review of the record shows that the circuit court in fact exercised discretion and there is a reasonable basis for its decision. Id. at 215. The question on appeal is not whether this court would, as an original matter, make the same rulings, but whether the circuit court erroneously exercised its discretion in ruling as it did. Johnson, 162 Wis. 2d at 273.

¶ 19. We conclude, however, that it is not necessary in this case for us to decide whether the circuit court erred in denying Atkinson's motion to postpone the trial so that Atkinson could retain different counsel. A party who appeals the denial of a motion for a continuance must demonstrate that he or she suffered prejudice from the adverse ruling. Allen v. Allen, 78 Wis. 2d 263, 275, 254 N.W.2d 244 (1977); Schwab, 163 Wis. 2d at 216. We conclude that a party alleging error in the denial of a request for a continuance or other discretionary pre-trial relief must demonstrate, at a minimum, what would have happened differently had a continuance or other relief been granted and why the differences create a reasonable possibility of a different outcome. See Wis. Stat. § 805.18(2) ("No judgment shall be reversed or set aside or new trial granted. . . unless ... it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure a new trial."); Evelyn C.R. v. Tykila S., 2001 WI 110, ¶ 28, 246 Wis. 2d 1, 629 N.W.2d 768 ("For an error to affect the substantial rights of a party, there must be a reasonable possibility that the error contributed to the outcome of the action . ...").

¶ 20. Atkinson argues in conclusory fashion that granting a continuance would have allowed him "a reasonable opportunity to secure new counsel and prepare a defense." However, he does not explain what the new defense would have been. He acknowledges that he had his "day in court" but claims that it was "entirely futile" because he had already " 'admitted' the plaintiffs core allegations and [had] no opportunity to call witnesses other than himself." The circuit court, however, relied on the trial testimony in making its findings, not on any deemed admissions. Atkinson neither identifies any witnesses, lay or expert, that could have been called at trial, nor does he explain what testimony any additional witnesses might have provided that would have undermined the plaintiffs case or strengthened his defense.

¶ 21. Atkinson goes on to say that he was

represented at trial by an attorney who had done virtually nothing to prepare the case, had failed to take discovery, had failed to file a trial brief or any pre-trial motions, had failed even to appear for the final pre-trial conference, and who, just weeks earlier, had sworn to the court that he was medically incapable of trying a case.

Again, however, Atkinson gives no indication of what discovery might have uncovered, what issues might have been argued in a trial brief or raised in the unspecified "pre-trial motions," or in what way Atkinson's attorney performed deficiently at trial. Atkinson asserts in his reply brief that "[d]elayed child sexual abuse cases are far from simple; they routinely involve expert testimony due to their complexity." He does not tell us, however, what an unspecified expert might have testified to that would have aided his defense.

¶ 22. Although Atkinson's principal complaint seems to be the denial of his request for a continuance, he also contends the circuit court erred in denying his requests to withdraw admissions and to extend the time to disclose his witnesses. The denials of these requests are also discretionary trial court rulings. See Schmid v. Olsen, 111 Wis. 2d 228, 237, 330 N.W.2d 547 (1983) (withdrawal of admissions); Glaeske v. Shaw, 2003 WI App 71, ¶ 35, 261 Wis. 2d 549, 661 N.W.2d 420 (prohibition of witnesses for violating disclosure provision in a scheduling order).

¶ 23. As with his challenge to the circuit court's denial of a continuance, Atkinson has not shown that he was prejudiced by not being allowed to withdraw his admissions or to present testimony from witnesses other than himself at trial. Although the court formally denied Atkinson's request to withdraw his admissions, it permitted him to testify at trial and based its findings wholly on the evidence adduced at trial. Nowhere in its memorandum decision does the circuit court cite reliance on Atkinson's deemed admissions as a basis for its decision to find him liable for his tortious acts against the plaintiff. And, as we have discussed above, Atkinson has not identified any witnesses or testimony he would have presented if given the opportunity to do so.

¶ 24. In sum, Atkinson has given us no reason to believe the court's key credibility determinations would have been different had the trial occurred at a later date with a different defense attorney and additional, unspecified witnesses. We conclude Atkinson has not shown he suffered prejudice from any of the circuit court's pretrial rulings that he challenges in this appeal.

Other Acts Evidence

¶ 25. Atkinson next contends the circuit court improperly considered "other acts" evidence, specifically, that the Chiropractic Examining Board reprimanded Atkinson in 1991 after investigating complaints of inappropriate conduct made by two female patients. Plaintiffs counsel elicited the following testimony, without objection, while cross-examining Atkinson at trial:

Q You received disciplinary action against your chiropractic license for inappropriate conduct; isn't that true?
A Yes.
Q And that was initiated by the complaints of many women. But ultimately only two followed through; is that true?
A I don't think that's a true characterization, sir. I am only aware of two stemming from a 1986 incident.
Q And as a result of that, the Chiropractic Examining Board required that you have another female present whenever you were examining a woman, for a period of three years; isn't that true?
A That's corrects]

¶ 26. The circuit court commented on the prior disciplinary action against Atkinson in paragraph 12 of its written decision:

The defendant admitted he was reprimanded in 1991 by the Chiropractic Examining Board, after complaints of improper sexual contacts made against him by two female patients in the mid-80s, after which for three years he was forbidden from examining a woman without a female assistant in attendance. This testimony tends to prove the defendant's absence of mistake, and his certain knowledge that improper touching of a female is wrong. Also, the similarity of improper touching between the conduct involving female patients and that alleged by the plaintiff is relevant, in that it tends to corroborate her testimony by showing a pattern of like behavior by the defendant involving other women.

¶ 27. Atkinson contends the circuit court's consideration of this testimony was improper because the issue at trial was not whether he knew that "improper touching of a female is wrong" but whether he touched L.M.S. inappropriately. He maintains, therefore, that the "Examining Board evidence was far more prejudicial to Atkinson than it was probative of any issue in the case." Although acknowledging that " 'other acts evidence' receives greater latitude in sex cases," Atkinson asserts that under Wis. Stat. § 904.04(2) such evidence cannot be used to prove a person's character in order to show that he or she acted in conformity with that character. Atkinson also claims that, because the other acts were remote in time and involved adult patients, not children or adolescents, the prior incidents do not meet the requirements for "habit" evidence under Wis. Stat. § 904.06(2). He asserts, therefore, that the incidents that led to the professional discipline in 1991 are not relevant to the present dispute. Atkinson asks us to reverse the circuit court's decision for relying on irrelevant and prejudicial evidence.

¶ 28. The principal weakness in Atkinson's argument is that it relies on evidentiary rules that generally prohibit the admission of "other acts" evidence to prove a person's character, allow the admission of "habit" evidence only after a showing that a habit exists and permit a court to exclude evidence if it determines the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. See Wis. Stat. §§ 904.03, 904.04(2) and 904.06. Atkinson, however, did not object at trial to the questions he was asked regarding the prior disciplinary action or to the admission of his deposition testimony on that topic, either for the reasons he now advances or on any other grounds. Thus, the question of whether the evidence was properly admitted is not before us. See Wis. Stat. § 901.03(l)(a).

¶ 29. We reject Atkinson's argument that we should reverse the trial court's decision because the court improperly considered evidence that might have been excluded (or admitted for only a limited purpose) if timely objection had been made. Because no objection was raised that the evidence was impermissible character evidence under Wis. Stat. § 904.04, or that it lacked the proper foundation for habit evidence under Wis. Stat. § 904.06, the trial court was never asked to ignore the evidence or limit its consideration of the evidence to only certain purposes or issues. Similarly, because the trial court was never asked to weigh the probative value of the evidence against the danger of unfair prejudice, it had no reason to do so, and it is not our role to perform such balancing in the first instance. See State v. Gollon, 115 Wis. 2d 592, 604-605, 340 N.W.2d 912 (Ct. App. 1983) ("We will not find an abuse of discretion where the defendant failed to ask the trial court to exercise its discretion.").

¶ 30. In short, by failing to object to the admission of the evidence in question, or to request the court to limit its consideration of the evidence in some way, Atkinson effectively waived his claim that the court improperly considered it. Atkinson's appellate argument rests entirely on evidentiary rules that he failed to call to the trial court's attention. As a result, there is no basis in the present record to support a reversal of the trial court's decision. See State v. Rogers, 196 Wis. 2d 817, 827, 539 N.W.2d 897 (Ct. App. 1995) ("We will not. .. blindside trial courts with reversals based on theories which did not originate in their forum.").

¶ 31. Finally, we note that even if we were to overlook the waiver and conclude that the court's consideration of Atkinson's prior disciplinary action was improper, that conclusion, standing alone, would not prompt us to reverse. Atkinson has not persuaded us that there is a reasonable possibility that the court's consideration of the evidence of his prior disciplinary action affected the outcome of this litigation. See Evelyn C.R., 246 Wis. 2d 1, ¶ 28. Moreover, Atkinson makes no claim that the circuit court's ultimate findings were clearly erroneous, which is the conclusion we would need to reach before reversing the court's factual findings. See Wis. Stat. § 805.17(2).

¶ 32. The court's discussion of the evidence at trial and its findings encompass some twenty-five paragraphs, of which only one, which we have quoted in its entirety above, is challenged by Atkinson for relying on irrelevant evidence. The court noted in its decision, and we agree, that the plaintiffs testimony at trial was supported to a significant degree by such things as: (1) the testimony of her mother regarding the actions the mother took and her description of Atkinson's behavior and actions after the allegations came to light; (2) the treating psychologist's testimony regarding the reactions and symptoms L.M.S. presented in treatment; and (3) inferences that could reasonably be drawn from Atkinson's failure to deny the allegations when first confronted by the plaintiff and the contents of notes he wrote to the plaintiff and her mother.

¶ 33. In sum, we cannot conclude either that the court's consideration of the prior disciplinary action played a dispositive role in its decision, or that the court's findings were clearly erroneous solely because it considered the evidence in the manner that it did.

Award of Future Medical Expenses

¶ 34. Atkinson's final contention is that the circuit court's award of $18,000 for future medical expenses lacks proper record support. The court based the award on the testimony of a licensed psychologist who treated L.M.S. after she came forward with the allegations against Atkinson in January 2002. The psychologist testified that, depending on her progress, the plaintiff will need monthly sessions annually during her twenties and, possibly, into her thirties. She testified that she currently charged $100 per hour for such therapy. The court awarded "$18,000, of which $15,000 is allocated for the years from now, when the plaintiff is 18, until she reaches 30, and an additional $3000 is allocated for future therapy as needed for the rest of her life beyond 30."

¶ 35. In order to sustain an award of future healthcare expenses: "(1) there must be expert testimony of permanent injuries, requiring future medical treatment and the incurring of future medical expenses; and (2) an expert must establish the cost of such medical expenses." Weber v. White, 2004 WI 63, ¶ 20, 272 Wis. 2d 121, 681 N.W.2d 137. Mathematical certainty, however, is not required for the determination of future medical expenses, and so long as the award is based on probability, not possibility, we may affirm it. See id., ¶ 30. We conclude that the psychologist's trial testimony meets the requisite standard. The psychologist's testimony regarding L.M.S.'s psychological injury, her treatment progress, the estimated frequency of future sessions and the duration of her future treatment needs provides sufficient support for the circuit court's damage award for future treatment expense.

CONCLUSION

¶ 36. For the reasons discussed above, we affirm the appealed judgment.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Because neither party had tendered jury fees, the matter was to be tried to the court. The court noted that a letter from a law firm Atkinson had recently contacted stated that it would assume representation "only if the case were adjourned and a new scheduling order entered allowing reasonable time for investigation and discovery." The court concluded that granting such an open-ended request would not be fair to the plaintiff.

       In his reply brief, Atkinson enumerates his attorney's deficiencies as follows:
      Atkinson was forced to defend a sexual battery claim, which jeopardized his license to practice, which was brought in the community where he practices, represented by an attorney (1) who had done nothing to prepare for trial, (2) who had not deposed the plaintiff, (3) who had not obtained her medical records, (4) who had failed to request a jury, (5) who admitted, by default, facts which established Atkinson's liability, (6) who failed to file a trial brief, (7) who failed to appear for the final pretrial [conference], (8) who, just weeks before trial, swore in an affidavit that he was not fit to try the case, and (9) whose pretrial failures represented the worst conduct the circuit court had ever heard of.
      Although this litany may accurately describe the many deficiencies in his counsel's performance, it does not explain what would have been different after a continuance with a different attorney representing Atkinson. We also note that, even with more able counsel and a later trial date, Atkinson would still have been "forced to defend a sexual battery claim, which jeopardized his license to practice," and we see no reason why the action would not still have been tried in the county where both the plaintiff and defendant resided and most of the tortious acts were committed.

       In support of the proposition that "[djelayed sexual abuse cases... routinely involve expert testimony," Atkinson cites State v. Haseltine, 120 Wis. 2d 92, 96-97, 352 N.W.2d 673 (Ct. App. 1984). We find Atkinson's citation to Haseltine a curious choice of authority to support his claim that he was wrongly deprived of the ability to call an expert witness in aid of his defense. The defendant in Haseltine was charged with having sexual contact with his sixteen-year-old daughter. Id. at 93. The State presented testimony at trial from a psychiatrist "that there 'was no doubt whatsoever' that Haseltine's daughter was an incest victim." Id. at 95-96. We reversed the conviction, concluding that the psychiatrist's opinion testimony had invaded the province of the jury as the sole determiner of witness credibility. Id. at 96. In so doing, however, we acknowledged that "[djepending on the case, the testimony of an expert might aid the jury. For example, an incest victim may not immediately report the incest, or may recant accusations of incest. Jurors might reasonably regard such behavior as an indication that the victim was not telling the truth. An expert could explain that such behavior is common among incest victims as a result of guilt, confusion, and a reluctance to accuse a parent." Id. at 97.
      L.M.S.'s treating psychologist, in addition to providing fact testimony regarding her treatment of the plaintiff, was permitted to give her opinions as an expert. Atkinson's counsel expressly waived objection to the psychologist's "qualifications to testify as an expert." The psychologist testified, among other things, that victims of sexual abuse "have difficulty reporting these things to their parents" because they often feel guilt or responsibility for the perpetrator's inappropriate behavior, are embarrassed by it and sometimes think they will not be believed. She also testified to the impact on victims stemming from the violation of a trusting relationship, the difficulty victims may experience in dealing with authority figures and the potential for future sexual dysfunction. Atkinson's counsel cross-examined the psychologist extensively, establishing that "victims react differently, depending on the fact situation"; that the psychologist could cite no statistics on "late reporting" by child sexual abuse victims; that some victims "will report the next day"; that her diagnosis of L.M.S. as suffering from "adjustment disorder" did not strictly meet the "DSM-IV" criteria for that disorder; and that the suicide of L.M.S.'s father when she was eleven or twelve-years-old was a significant "stressor" in her life that still affected her, as was dealing with her mother's recent cancer diagnosis.
      In short, the plaintiffs psychologist gave expert testimony that was consistent with what we described in Haseltine as being appropriate in cases involving the sexual abuse of a child. Moreover, Atkinson's counsel was able to establish facts favorable to the defense from this witness. In the absence of any explanation of what additional testimony favorable to the defense could have been elicited from a separate expert, we cannot conclude Atkinson was prejudiced by not having another expert testify at trial.

       By rejecting Atkinson's first claim of error for failure to demonstrate prejudice, we do not wish to suggest that we believe the circuit court erred in any of the challenged rulings. We have described in some detail in the background section of this opinion the legal and factual bases the court cited in making its discretionary rulings.

       In addition to the quoted trial testimony, the record contains other evidence relating to the referenced disciplinary action. In support of her motion for summary judgment, the plaintiff submitted a copy of a 1991 "Final Decision and Order" of the State of Wisconsin Chiropractic Examining Board, which includes the following order: "A female assistant must he present when any type of examination or procedure is performed by [Atkinson] on a female patient which requires the exposure of, or contact with, the intimate parts of the patient ...." The record also contains excerpts from Atkinson's deposition, where he admitted that "two patients," both women, made "allegations of inappropriate physical touching with their person" in 1986, which resulted in "mild disciplinary action against my license." The deposition excerpts were admitted into evidence at trial.

       The general appellate waiver rule is that, for reasons of judicial economy, we will typically deny an appellant the opportunity to raise an issue on appeal that was not raised in the trial court. See State v. Erickson, 227 Wis.2d 758, 766, 596 N.W.2d 749 (1999); State v. Caban, 210 Wis. 2d 597, 604-605, 563 N.W.2d 501 (1997). In many cases, an appellant's belated claim that a fact-finder's consideration of unobjected-to evidence violates principles embodied in the rules of evidence will also be virtually unreviewable. Had the trial court not included in its written decision a paragraph describing its consideration of the prior disciplinary action, we would not know what role, if any, the evidence played in its determination to accept the plaintiffs trial testimony over Atkinson's, even though the court might have tacitly viewed the evidence in precisely the same way. Moreover, when a case is tried to a jury, we have before us only one-word answers to verdict questions reflecting the jury's findings, and we can never know what use jurors might have made of any unobjected-to evidence introduced at trial. Thus, we conclude that the better rule in most, if not all, cases is that disputes over the relevance of an item of evidence, its probative value, or its potential for unfair prejudice must be raised and decided at the point the evidence is offered, not after the fact-finder has been allowed to consider the evidence without caution or limitation.


source: Caselaw Access Project

author: VERGERONT, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Mark E. Nelson, Defendant-Appellant.

    Court of Appeals

      No. 2005AP2300-CR.

      Submitted on briefs March 3, 2006.

      —Decided May 25, 2006.

    2006 WI App 124
    (Also reported in 718 N.W.2d 168.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert R. Henak and Amelia L. Bizzaro, Henak Law Office, S.C., Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief oí David J. Becker, asst, attorney general, send Peggy A. Lautenschlager, attorney general.
    Before Vergeront, Deininger, and Higginbotham, J.

       Petition to review denied 8-30-06.

   VERGERONT, J.

¶ 1. Mark E. Nelson appeals from a judgment convicting him of two felony counts of capturing representations depicting nudity in violation of Wis. Stat. § 942.09(2)(a). One of the elements of this crime is that the person videotaped "is nude in a circumstance in which he or she has a reasonable expectation of privacy." Section 942.09(2)(a). The charges arise out of Nelson's videotaping his next door neighbors while they were using their bathroom.

¶ 2. The four issues on this appeal relate to the construction and application of the phrase "reasonable expectation of privacy" in Wis. Stat. § 942.09(2)(a). The first issue is the proper construction of the phrase and, more specifically, whether the language should be construed, as Nelson contends, according to the case law that applies this phrase in the Fourth Amendment context. We conclude that it is not reasonable to construe the phrase according to Fourth Amendment case law. Instead, we conclude that the words "expectation of privacy" have their common and ordinary meaning and "reasonable" has the well-established meaning of the objective reasonable person standard.

¶ 3. The second issue is whether Wis. Stat. § 942.09 is unconstitutionally vague if the phrase "reasonable expectation of privacy" is not construed according to Fourth Amendment case law. We conclude it is not. The third and related issue is whether we should exercise our discretionary power of reversal under Wis. Stat. § 752.35 because the jury instructions did not contain a definition of "reasonable expectation of privacy." We conclude there is no reason to reverse on this ground. The fourth issue is whether the evidence is sufficient to support Nelson's conviction. We conclude that it is.

¶ 4. Because we resolve all four issues against Nelson, we affirm the judgment of conviction.

BACKGROUND

¶ 5. During the summer of 2004, several college students rented and lived in the second-floor apartment of the house next door to Nelson's house; two women lived in the apartment all summer, and one woman, who had arranged to live in the apartment in the fall, visited the apartment during the summer. One of the women who lived in the apartment all summer and the one who planned to live there in the fall were depicted on videotapes recovered from Nelson. The videotapes were shown to the jury and admitted into evidence. In one videotaped scene, the woman who was visiting sits on the toilet and takes out and inserts a tampon, and her pubic area is visible. Five other separate videotaped scenes depict one of the women who lived there all summer: in four scenes she is using the toilet, with her pubic area visible; in one scene she is applying lotion and her breast is briefly visible.

¶ 6. The testimony at trial established that the bathroom window on the women's second-floor apartment faced Nelson's house and the distance between was ten feet and three inches. The layout of the bathroom is that the door is located on the wall directly opposite the wall with the window. The toilet is against the left-hand wall as one walks into the bathroom, and it is immediately to the left. Also on the left-hand wall is a sink and mirror, closer to the window. On the right-hand wall as one enters is a closet, across from the toilet; the closet is about four or five feet from the window.

¶ 7. The two women who lived in the apartment all summer testified as follows. The bathroom window was small and had fogged glass; there were no blinds or curtains. From the bathroom window they could see a window in Nelson's house, but that house appeared vacant. Either a for-sale or a for-rent sign was in front of the house; they never saw any lights on at the house, and they never noticed anyone around the house or going in or out of the house. One of the women testified:

I went in and out of the house every day to class at all time [sic], I've never seen anyone coming in the front door or out the front door. I never saw any garbage taken out in the morning .... Never saw any lights on in the house. There was never any noise over there. No one in the back yard. There was nothing.

¶ 8. The women who lived there all summer did not believe anyone could see into their bathroom, even when the window was open, except possibly from Nelson's house. However, because Nelson's house appeared vacant, they believed that no one could see into their bathroom. During the summer, branches and leaves from a tree blocked the view of this window from the ground, and this tree, combined with the proximity of Nelson's house to their own, made it impossible to see into their bathroom window from the ground during the summer. If the leaves were not on the tree, someone on the ground looking into their bathroom would be able to see only a wall with a mirror on it. One of the women estimated that she was four or five feet away from the window at the time she was videotaped.

¶ 9. The woman who was videotaped while visiting also testified at trial. She did not see anyone at Nelson's house during the day or at night while she was visiting; therefore she did not believe anyone was there. The women who lived there all summer told her that an older woman lived on the other side of their apartment, but did not mention that anyone lived on Nelson's side. If she had seen anyone at Nelson's house or seen any lights on at his house, she would have shut the bathroom window.

¶ 10. Both women who were videotaped testified that they did not know they were being videotaped. They did not learn that they had been videotaped until the mother of one woman came to visit later in the summer and noticed what looked like a video camera in a window in Nelson's house. Initially, she was not sure what the object was, but when she went back to look at it again two or three minutes later, the object had disappeared. She and her daughter believed someone was watching them and called the police on August 24.

¶ 11. Two officers responded to the call. One testified that Nelson's house appeared to be vacant when he looked into it from outside — he could see a ladder and some remodeling supplies, but "no couches or anything else like that." However, Nelson did come to the door. He showed them his driver's license, which was from Florida, and told the officers that they could look around and that he did not own a video camera. The officers learned he was the landlord of the house, the renters had moved out June 1, and his permanent residence was Florida. He had been traveling back and forth between Wisconsin and Florida to fix up the house for sale or for future renters, staying at the house when he worked on it.

¶ 12. One of the officers testified that when he looked around Nelson's house, he saw that the room with the window across from the women's bathroom was empty except for a vacuum cleaner. Another room had a mattress on the floor, a television with a VCR and DVD player, and a closet with videotapes on the top shelf and also in a basket underneath dirty clothes. The officer went up into the attic, where he discovered a large piece of cardboard that had been "set... [r]ight up by the windows," and through these windows he could see into the front rooms of the women's apartment. He also noticed a tripod and a VCR in a black bag in the attic; when he commented on the tripod to Nelson, Nelson said he needed a search warrant. A search warrant was obtained and the subsequent search produced the videotapes of the two women in their bathroom.

¶ 13. Nelson did not testify at trial. However, a third officer, who was called to assist the first two with the search warrant, testified that when he arrived at Nelson's house, Nelson admitted that he had filmed his neighbors, and said there would be "some nude people" on the tapes that the officers found in the search.

¶ 14. At trial, the jury was instructed in accordance with WIS JI-Criminal 1396, as follows:

Before you may find the defendant guilty of this offense — this is as to both counts and you must consider each offense individually — the State must prove by evidence which satisfies you beyond a reasonable doubt that the following four elements were present.
One, the defendant captured a representation that depicted nudity.
Two, the defendant captured the representation without the knowledge and consent of the person who is depicted nude.
Three, the person who is depicted nude was nude in a circumstance in which he or she had a reasonable expectation of privacy.
Four, the defendant knew or had reason to know that the person who is depicted nude did not know of and did not consent to the capture of the representation.
Captures a representation means takes a photograph, makes a motion picture, video tape or other visual image.
Nudity means the showing of the human male or female genitals, pubic area or buttocks, with less than a full opaque covering or the showing of the female breast....
Reasonable expectation of privacy means that the person who is depicted nude had an actual expectation of privacy at the time the depiction of nudity was captured. And, that the expectation of privacy was reasonable.

¶ 15. The jury found Nelson guilty on both counts. On the first count, the court sentenced Nelson to a bifurcated sentence, consisting of one year of confinement followed by a two-year term of extended supervision; on the second count, the court imposed a consecutive four-year term of probation.

ANALYSIS

I. Proper Construction of "Reasonable Expectation of Privacy" in Wis. Stat. § 942.09(2)(a)

¶ 16. Nelson first contends that the phrase "reasonable expectation of privacy" in Wis. Stat.§ 942.09(2)(a) must be defined according to the case law applying that phrase in the context of the Fourth Amendment. According to Nelson, the legislative history supports this construction. So construed, he asserts, there was insufficient evidence to convict him.

¶ 17. The State responds that the phrase should be given its common and ordinary meaning because the context and purpose of Wis. Stat. § 942.09(2) (a) does not support interpreting the language as it has been defined in case law applying the Fourth Amendment, which has a significantly different context and purpose. The State also disagrees with Nelson's argument on legislative history, asserting that nothing in the legislative history indicates that the legislature intended this phrase to be defined according to Fourth Amendment case law.

¶ 18. The interpretation of a statute is a question of law, which we review de novo. State v. Tremaine Y., 2005 WI App 56, ¶ 9, 279 Wis. 2d 448, 694 N.W.2d 462. When we construe a statute, we begin with the language of the statute and give it its common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language in the context in which it is used, not in isolation but as part of a whole, in relation to the language of surrounding or closely related statutes, and we interpret it reasonably to avoid absurd or unreasonable results. Id., ¶ 46. We also consider the scope, context, and purpose of the statute insofar as they are ascertainable from the text and structure of the statute itself. Id., ¶ 48. We do so in part because words often have multiple meanings and the applicable definition depends upon the context in which a word is used. See id., ¶¶ 48-49. If this process of analysis yields a plain meaning, then there is no ambiguity and we apply that plain meaning. Id., ¶ 46. However, if the statutory language is capable of being understood by reasonably well-informed persons in two or more senses, it is ambiguous and we may employ sources extrinsic to the statutory text. Id., ¶¶ 47, 50. These extrinsic sources are typically items of legislative history. Id., ¶ 50.

¶ 19. The phrase "reasonable expectation of privacy" is not defined in Wis. Stat. § 942.09, nor are the individual words. However, the words "expectation of privacy" have a common meaning that can be ascertained with reference to a standard dictionary. See State v. Sample, 215 Wis. 2d 487, 499-500, 573 N.W.2d 187 (1998) (we may consult a standard dictionary to determine the common meaning of words). The applicable common meaning of "privacy" is: "l.a. the quality or condition of being secluded from the presence or view of others." American Heritage College Dictionary 1089 (3d ed. 1993). The applicable common meaning of "expectation" is "7: assumption." Webster's Third International Dictionary, Unabridged 799 (1993). Thus, according to common usage "expectation of privacy" means an assumption that one is secluded from the presence or view of others.

¶ 20. The word "reasonable" has a well-established meaning when used in a legal context. It generally connotes a "reasonable-person standard," a standard that "has been relied upon in all branches of the law for generations. . . ." City of Madison v. Bau- mann, 162 Wis. 2d 660, 677-78, 470 N.W.2d 296 (1991). "The reasonable person is a reasonable person in the circumstances. It is what is '[f]it and appropriate to the end in view.'" (citing Black's Law Dictionary 1431 (rev. 4th ed. 1968)). Baumann, 162 Wis. 2d at 678. Significantly, "reasonable," or the "reasonable person standard," establishes an objective standard for evaluating conduct. State v. Ruesch, 214 Wis. 2d 548, 563, 571 N.W.2d 898 (Ct. App. 1997) (citation omitted). Thus, "reasonable" means what is appropriate in the circumstances according to an objective standard.

¶ 21. If we apply the common meanings of "expectation" and "privacy" and the well-established meaning of the term "reasonable," Wis. Stat. § 942.09(2)(a) requires that the person who is depicted nude is in a circumstance in which he or she has an assumption that he or she is secluded from the presence or view of others, and that assumption is a reasonable one under all the circumstances, meaning that it is an appropriate one under all the circumstances according to an objective standard. We conclude this is a reasonable construction of "reasonable expectation of privacy" because it employs the common and well-established meanings of the words.

¶ 22. Nelson does not directly argue that this construction is not a reasonable one. Rather, he asserts that "reasonable expectation of privacy" is a legal term of art that has been defined in Fourth Amendment case law, and the legislature intended that it have the same meaning in Wis. Stat. § 942.09(2)(a). Under this case law, he continues, there is no reasonable expectation of privacy in something that is in plain view from a place where a police officer has a right to be, see, e.g., State v. Bell, 62 Wis. 2d 534, 540, 215 N.W.2d 535 (1974), and the women in their bathroom were in plain view from Nelson's house, where he had a right to be. We are uncertain whether Nelson's position is that the construction he proposes is the only reasonable one, or that there is an ambiguity that the legislative history resolves in his favor. In either case, we must decide whether the construction he proposes is at least a reasonable one, and we turn to that question now.

¶ 23. The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...." The phrase "reasonable expectation of privacy" does not appear in the Fourth Amendment itself but is the concept, also referred to as "legitimate expectation of privacy," that has been developed by case law to define when a search or seizure within the meaning of the Fourth Amendment has occurred in the first instance. See State v. Rewolinski, 159 Wis. 2d 1, 12-13, 21, 464 N.W.2d 401 (1990). The determination of whether a defendant has a reasonable expectation of privacy for Fourth Amendment purposes involves two separate inquiries: first, whether he or she has "exhibited an actual, subjective expectation of privacy" and, second, "whether such an expectation is legitimate or justifiable in that it is one that society is willing to recognize as reasonable." Id. at 13 (citations omitted). In answering the second question, the court "balanc[es] the interest of society in permitting the government conduct to occur and the privacy interest asserted by the individual." Id. at 17. If the defendant establishes that he or she had a reasonable or legitimate expectation of privacy that was invaded by government action, then a search or seizure has occurred within the meaning of the Fourth Amendment. Id. at 12-13. The court then decides whether the government's action was reasonable and, thus, permissible under the Fourth Amendment. Id. at 13.

¶ 24. In the Fourth Amendment context, then, the concept of reasonable expectation of privacy embodies a balance between society's interest in law enforcement and the privacy interest asserted by the individual. Id. at 17. We conclude this meaning of the phrase is not consistent with the context and purpose of Wis. Stat. § 942.09 as expressed in the statutory text. The evident purpose of § 942.09 is to penalize individuals who capture representations of others who are nude — and individuals who reproduce, possess, distribute, or exhibit those representations — in circumstances that invade the privacy of those depicted, when the offenders have no legitimate reason for doing so. A balancing of society's interest in law enforcement against the depicted person's interest in privacy is not a relevant standard in this context because law enforcement is not the invader of the depicted person's privacy. As for balancing the interest of the offenders under § 942.09 against the depicted person's interest in privacy, the legislature has already made the judgment that, in the circumstances described in the statute, the offender does not have a legitimate interest in capturing representations depicting nudity. In short, there is nothing to balance.

¶ 25. Nelson apparently believes it is feasible to apply the holdings of cases decided under the Fourth Amendment regarding when there is and is not a reasonable expectation of privacy and at the same time to ignore the balancing of the particular interests that courts employ to arrive at the holdings. This is not a coherent or rational way to interpret the phrase "reasonable expectation of privacy" in Wis. Stat. § 942.09(2)(a).

¶ 26. Because we conclude that Nelson's proposed construction is not reasonable, we could end our analysis here, without considering his argument on legislative history. See Kalal, 271 Wis. 2d 633, ¶ 51 (generally legislative history is not consulted except to resolve an ambiguity in the statutory language). However, we choose to address the legislative history to explain why we do not view it as supporting Nelson's proposed construction. See id. (legislative history is sometimes consulted to confirm or verify a plain meaning interpretation).

¶ 27. Nelson's legislative history argument begins with State v. Stevenson, 2000 WI 71, 236 Wis. 2d 86, 613 N.W.2d 90, which considered a prior version of Wis. Stat. § 942.09(2)(a), codified at Wis. Stat. § 944.205(2)(a) (1997-98):

(2) Whoever does any of the following is guilty of a Class E felony:
(a) Takes a photograph or makes a motion picture, videotape or other visual representation or reproduction that depicts nudity without the knowledge and consent of the person who is depicted nude, if the person knows or has reason to know that the person who is depicted nude does not know of and consent to the taking or making of the photograph, motion picture, videotape or other visual representation or reproduction.

The issue before the Stevenson court was a First Amendment challenge to § 944.205 on overbreadth grounds. Stevenson, 236 Wis. 2d 86, ¶ 1. The defendant had videotaped his ex-girlfriend from the roof and from a tree outside her bedroom window while she was undressing, without her knowledge or consent. Id., ¶¶ 2-4. The court noted that the defendant's conduct was not protected by the First Amendment, id., ¶ 16, but the court concluded the statute was overbroad because it prohibited "all visual expression of nudity without explicit consent, including political satire and newsworthy images," id., ¶ 21, as well as all reproductions of depictions of nudity, even if they were artistic masterpieces or had a health or educational purpose. Id., ¶ 22.

¶ 28. The State in Stevenson agreed the statute was overbroad on its face, and proposed that the court construe the statute to make it constitutional by adding, after "without the knowledge and consent of the person who is depicted nude," the phrase "while that person is nude in circumstances where they have a reasonable expectation of privacy." Id., ¶ 24. The court acknowledged that this additional language would "rid the statute of its sweeping reach and rein in its application to conduct like that in which Stevenson has engaged," because it would have required the person depicted to have a reasonable expectation of privacy in the circumstances in which he or she was depicted, and would have required that the person depicted be contemporaneously present at the time of the depiction. Id., ¶¶ 25, 28. However, the court observed, the contemporaneous requirement the State proposed to read into the statute would be inconsistent with the term "reproduction" in Wis. Stat. § 944.205. Id., ¶ 38. Ultimately the court declined to construe the statute to make it constitutional because it was the legislature's job to "craft a clear and precise statute that reconciles the tension between the core concerns of privacy and free expression." Id., ¶ 29, and see id., ¶ 40.

¶ 29. The following year the legislature amended Wis. Stat. § 944.205, and one of the changes was the addition of this language to subsec. (2)(a): "while that person is nude in a place and circumstance in which he or she has a reasonable expectation of privacy." 2001 Wis. Act 16, § 3956. The Legislative Reference Bureau analysis of the bill that introduced this amendment describes the amendment as "narrow[ing] the scope of the prohibition against making an original representation that depicts nudity by requiring that, at the time the representation is made, the subject of the depiction be ... in a place and circumstance in which he or she can reasonably expect privacy." Drafting records of 2001 Wis. Act 16, SB 55, LRB analysis of component draft 0795/PI, Crimes related to computers, obscenity, nudity, and pornography. A short time later, in 2001 Wis. Act 33, §§ 2, 5 and 11, the legislature amended § 944.205 again, renumbering the statute, moving it out of the chapter on "Crimes Against Morality" and into Wis. Stat. ch. 942, "Crimes Against Reputation, Privacy and Civil Liberties," and changing the language to that of the current Wis. Stat. § 942.09.

¶ 30. It is apparent from the legislative records the parties provide us that the changes in the language of the statute in both 2001 Wis. Act 16 and 2001 Wis. Act 33 were made in an effort to narrow the breadth of the statute in response to Stevenson. See drafting records for 2001 Wis. Act 16, SB 55, LRB Analysis of Component Draft 0795/1, Crimes Related to Computers, Obscenity, Nudity, and Pornography; see also drafting records for 2001 Wis. Act 33, AB 60, LB-1325, Drafting Request for Mark Gundrum of December 5, 2000. However, the majority opinion in Stevenson does not refer to the Fourth Amendment at all, either in its discussion of the State's proposed addition of "reasonable expectation of privacy" or otherwise. We see no need to construe that phrase according to Fourth Amendment law in order to remedy the unconstitutional overbreadth identified by the Stevenson court. See Stevenson, 236 Wis. 2d 86, ¶ 22. Finally, nothing in the drafting records of the amendments refers to the Fourth Amendment or otherwise comments on the meaning of the phrase "reasonable expectation of privacy," beyond indicating that it has a narrowing function.

¶ 31. Nelson points out that the State did mention the Fourth Amendment in its brief in Stevenson. The State's brief argued for a construction of the statute "limited to circumstances in which the subject of a nude picture retained a reasonable expectation of privacy which was invaded without consent," and in that context stated: "[wjhether there is a reasonable expectation of privacy under the circumstances is a familiar inquiry which underlies all Fourth Amendment litigation. See, e.g., State v. Dixon, 177 Wis. 2d 461, 466-69, 501 N.W.2d 442 (1993)." Because the assistant attorney general on that brief was involved in drafting one of the post-Stevenson amendments, Nelson views the reference to the Fourth Amendment in the State's Stevenson brief as indicative of legislative intent.

¶ 32. We disagree. The legislative history Nelson provides is devoid of any suggestion that the legislature was aware of the State's brief in Stevenson, or that anyone, including the assistant attorney general who wrote it, referred to the Fourth Amendment in the drafting or amendment process. See drafting records for 2001 Wis. Act 33, AB 60, LRB-1325, correspondence and e-mail from Thomas Balistreri dated December 8, 2000, December 14, 2000, and January 2, 2001. What the assistant attorney general might have had in his mind, uncommunicated to others in the drafting and amendment process, has no bearing on the legislature's intent in adding the phrase "reasonable expectation of privacy."

¶ 33. We conclude that "reasonable expectation of privacy" in Wis. Stat. § 942.09(2)(a) means that the person who is depicted nude is in a circumstance in which he or she has an assumption that he or she is secluded from the presence or view of others, and that assumption is a reasonable one under all the circumstances, that is, an appropriate one under all the circumstances according to an objective standard. This construction employs the common and well-established meaning of the words and is consistent with the context and purpose of the statute as expressed in the text. The legislative history does not support a different construction.

II. Vagueness Challenge

¶ 34. Nelson contends that if we do not construe "reasonable expectation of privacy" in Wis. Stat. § 942.09(2)(a) according to Fourth Amendment case law, the statute is unconstitutionally vague and therefore violates his right to due process.

¶ 35. "The constitutional foundation of the vagueness challenge to a penal statute is the procedural due process requirement of fair notice." State v. Ehlenfeldt, 94 Wis. 2d 347, 355, 288 N.W.2d 786 (1980) (citation omitted). "A criminal statute is unconstitutionally vague if it either fails to afford proper notice of the conduct it seeks to proscribe, or fails to provide an objective standard for enforcement." State v. Hahn, 221 Wis. 2d 670, 677, 586 N.W.2d 5 (Ct. App. 1998) (citation omitted). The constitutionality of a statute is a question of law, which we review de novo. State v. Pittman, 174 Wis. 2d 255, 276, 496 N.W.2d 74 (1993). In our analysis we presume the statute is constitutional and the challenger has the burden of demonstrating that it is not. Id.

¶ 36. Under the first element of the test, a criminal statute does not provide fair notice if it does not "sufficiently warn people who wish to obey the law that their conduct comes near the proscribed area." Hahn, 221 Wis. 2d at 677 (citation omitted). However, the challenged statute " 'need not define with absolute clarity and precision what is and what is not unlawful conduct.1" Pittman, 174 Wis. 2d at 276-77 (citation omitted). "A statute ... is not void for vagueness because in some instances certain conduct may create a question about its impact under the statute," Hahn, 221 Wis. 2d at 677 (citation omitted), or because " 'there may exist particular instances of conduct the legal or illegal nature of which may not be ascertainable with ease.'" State v. Hurd, 135 Wis. 2d 266, 272, 400 N.W.2d 42 (Ct. App. 1986) (citation omitted).

¶ 37. Under the second element of the test, "a statute is vague only if a trier of fact must apply its own standards of culpability rather than those set out in the statute." Hahn, 221 Wis. 2d at 677 (citation omitted).

¶ 38. Nelson's argument that the phrase "reasonable expectation of privacy" is unconstitutionally vague if not construed according to Fourth Amendment case law is apparently focused on the word "reasonable." Without the definition provided by Fourth Amendment case law, he asserts, he has no way of knowing what others may consider to be a "reasonable" expectation of privacy, and decision-makers may employ their own subjective or "ad hoc" standards about what is reasonable.

¶ 39. However, this court and the supreme court have already concluded in several different contexts that the term "reasonable" does not render a statute unconstitutionally vague. In State v. Hurd, 135 Wis. 2d at 272-73, we held that the use of "reasonable" in "reasonable cause to suspect" in Wis. Stat. § 48.981 (1983-84) "fairly notifies a person of ordinary intelligence that if there is a reasonable basis to suspect that child abuse has occurred, that person must make a report." We pointed out that the standard of reasonableness was employed in a number of different statutes, and that in the statute under discussion it meant that a prudent person would have reasonable cause to suspect child abuse, given the totality of the facts and circumstances actually known to the defendant and viewed from the standpoint of the defendant. Id. at 272-73.

¶ 40. In State v. Mann, 135 Wis. 2d 420, 423, 425-26, 400 N.W.2d 489 (Ct. App. 1986), we concluded that use of the word "reasonable" in the requirement in Wis. Stat. § 346.67(l)(c) (1983-84) that the operator of a motor vehicle involved in an accident "render to any person injured in such accident reasonable assistance" did not render that statute unconstitutionally vague. We explained: "The word 'reasonable' abounds in the statutes and case law, and '[t]he mere fact that a penal statute is so framed as to require a jury ... to determine a question of reasonableness is not sufficient to make it too vague to afford a practical guide to permissible conduct.' United States v. Ragen, 314 U.S. 513, 523 (1942)." Mann, 135 Wis. 2d at 426.

¶ 41. In Baumann, 162 Wis. 2d at 677, the supreme court concluded that the use of the word "unreasonably" in an ordinance prohibiting "making any noise tending to unreasonably disturb the peace and quiet of persons in the vicinity thereof' saved the ordinance from vagueness. As we have explained in the preceding section, the court in Baumann held that the standard of a reasonable person was well established in the law and meant what was "[flit and appropriate to the end in view," that is, fit and appropriate under the circumstances. Id. at 678. The court concluded that the ordinance "adequately spelled out" the circumstances by prohibiting music that "a reasonable person would conclude would disturb the peace and quiet of the vicinity." Id. The court further stated:

the word, "unreasonably," is the linchpin that prevents excessive discretion in the police and which gives guide to persons in respect to their conduct. In each case the concept of reasonableness is what prevents the actor from being at the mercy of the hypercritical. It is what will disturb a reasonable person that is actionable.

Id. at 680.

¶ 42. In County of Jefferson v. Renz, 222 Wis. 2d 424, 435-36, 588 N.W.2d 267 (Ct. App. 1998), rev'd on appeal on other grounds at 231 Wis. 2d 293, 603 N.W.2d 541 (1999), we consulted a dictionary to determine the meaning of "excessive" in the prohibition against "excessive noise" in Wis. Stat. § 347.39(1) (1995-96). We determined "excessive" meant "unreasonable," and we concluded that the concept of reasonableness in the context of the statute was sufficiently definite to avoid vagueness. Renz, 222 Wis. 2d at 435-36.

¶ 43. In contrast to the statutes considered in the above cases, which use the term "reasonable" (or "unreasonable") to describe the defendant's conduct, in Ruesch, 214 Wis. 2d at 552, 563, we considered a statute employing the term "reasonable" to describe the victim's reaction: conduct that "would cause a reasonable person to fear bodily injury to .. . or . .. death of himself or herself or a member of his or her immediate family." Wis. Stat. § 940.32(2)(a) (1995-96). We concluded that the use of "reasonable person" provided an objective standard for evaluating the defendant's conduct, thereby preventing the fact-finder from establishing its own standard. Ruesch, 214 Wis. 2d at 563.

¶ 44. Following the reasoning of these cases, we conclude that use of "reasonable" to describe "expectation of privacy" in the context of Wis. Stat. § 942.09 provides sufficient notice of the conduct proscribed by the statute. Use of the word "reasonable" in § 942.09 requires that a person refrain from videotaping a person who is nude, as specifically defined in Wis. Stat. § 948.11(l)(d), without the person's knowledge and consent, when that person is nude in circumstances in which the person has an expectation of privacy that is reasonable under the circumstances. The use of the word "reasonable" means that Nelson is not at the mercy of people who are nude in situations that a reasonable person would not expect to be private; rather, Nelson can determine, based on the circumstances he himself was aware of and able to observe, whether a reasonable person would have an expectation of privacy in the circumstances in which he videotaped the women nude, without their knowledge and consent, in their bathroom.

¶ 45. We recognize that in Wis. Stat. § 942.09(2)(a), the word "reasonable" does not modify terms describing the conduct of the defendant, but instead modifies the victim's expectation of privacy. However, as the court in Baumann explained, reasonableness as applied to the person who is disturbed by the defendant's conduct — in this sense, the victim — is in essence the same as applying the reasonableness standard to the defendant's conduct: a reasonable person in the defendant's situation would avoid making noise at a time and place that would disturb a reasonable person. Baumann, 162 Wis. 2d at 680. See also Ruesch, 214 Wis. 2d at 563. Similarly, § 942.09(2) (a) prohibits videotaping a person who is nude without his or her consent or knowledge if a reasonable person would understand that the person depicted nude is nude in a circumstance in which a reasonable person would have an expectation of privacy.

¶ 46, Considering the facts of this case, we conclude that the term "reasonable expectation of privacy" as used in the statute gave Nelson sufficient notice that his conduct in videotaping women using a second-floor bathroom in their own residence, without their knowledge and consent, approached the proscribed area of conduct. Whether there is sufficient evidence for a jury to find beyond a reasonable doubt that his conduct did come within the proscribed area is a question of the sufficiency of the evidence, see Ehlenfeldt, 94 Wis. 2d at 357, and we address that topic in a subsequent section.

¶ 47. Following the reasoning of Hurd, Mann, Baumann, Ruesch and Renz, we conclude that use of the word "reasonable" to describe "expectation of privacy" in the context of Wis. Stat. § 942.09 provides sufficient guidance to law enforcement, judges, and juries. The use of the term "reasonable" means that law enforcement may not arrest and charge, and jurors or judges may not convict, based on their subjective expectations of privacy or their own standards of culpability; rather, they must determine whether a reasonable person would have an expectation of privacy in the circumstances of the particular case. Indeed, a determination of what is reasonable in the circumstances of a particular case is the type of common-sense determination that juries routinely make. See Mann, 135 Wis. 2d at 426.

¶ 48. In summary, we conclude that construing "reasonable expectation of privacy" in Wis. Stat. § 942.09 according to the common meaning of "expectation of privacy" and the well-established general meaning of "reasonable" does not render the statute unconstitutionally vague.

III. Reversal in the Interests of Justice

¶ 49. Nelson argues that, in the absence of a definition in the jury instructions of when a person has a "reasonable expectation of privacy," the jurors were allowed to substitute their own subjective standards. Nelson recognizes that, because he did not object to the jury instructions at trial, he does not have a right to appeal on this ground. See State v. Schumacher, 144 Wis. 2d 388, 407-08, 424 N.W.2d 672 (1988). He therefore asks that we use our discretionary power under Wis. Stat. § 752.35 to reverse in the interests of justice.

¶ 50. We see no reason to employ our discretionary power of reversal. We have already concluded that "reasonable expectation of privacy" is properly construed using the common meaning of "expectation of privacy" and the well-established meaning of "reasonable"; and we have concluded that "reasonable" embodies an objective standard that is sufficient to guide decision-makers. There was therefore no error in not defining this term further.

TV Sufficiency of the Evidence

¶ 51. Nelson's final argument is that the evidence was insufficient to support his conviction. Specifically, he argues the evidence was insufficient to support the jury's finding that the women he videotaped were in circumstances in which they had a reasonable expectation of privacy because they used the bathroom with the window open.

¶ 52. In a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury's verdict. Morden v. Continental AG, 2000 WI 51, ¶ 39, 235 Wis. 2d 325, 611 N.W.2d 659 (citations omitted). If there is any credible evidence to support the jury's verdict, we do so. Id., ¶ 38 (citations omitted). Moreover, "if there is any credible evidence, under any reasonable view, that leads to an inference supporting the jury's finding," we will not overturn the jury's finding. Id. (citations omitted). This is because the jury, rather than the appellate court, is to "balance the credibility of witnesses and the weight given to the testimony of those witnesses." Id., ¶ 39 (citation omitted).

¶ 53. Applying this standard, we conclude the evidence was sufficient for the jury to find Nelson guilty of violating Wrs. Stat. § 942.09 beyond a reasonable doubt, and, specifically, that the women videotaped had a reasonable expectation of privacy. If a jury accepted the testimony of the women and the investigating officers, there was evidence that the bathroom was on the second floor of the building; Nelson's house appeared vacant and actually was generally vacant that summer; there was a tree, located between Nelson's house and their own house, that blocked the view of the bathroom window from the ground during the summer; over ten feet separated Nelson's house from the women's house, and the women were located four or five feet from the window when Nelson videotaped them. In addition, given the detail visible on the videotapes, a reasonable jury could infer that Nelson was using a zoom feature to see the women and that he would not have been able to see them in any significant detail otherwise. Considering this evidence together, we conclude it is sufficient for a jury to find beyond a reasonable doubt that, despite opening the window, the women had a reasonable expectation of privacy when they were videotaped.

CONCLUSION

¶ 54. The proper construction of the term "reasonable expectation of privacy" in Wis. Stat. § 942.09(2)(a) gives the words "expectation of privacy" their common and ordinary meaning, and gives "reasonable" the well-established meaning of the objective reasonable person standard. Thus construed, § 942.09 is not unconstitutionally vague, there is no basis for us to exercise our discretionary power of reversal because the jury instruction did not define the term, and the evidence was sufficient to convict Nelson. Accordingly, we affirm the judgment of conviction.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       The State also argues that, even if "reasonable expectation of privacy" is construed according to Fourth Amendment case law, there is sufficient evidence to convict Nelson. Because we reject Nelson's proposed construction, we do not address this issue.

       In the Fourth Amendment context, the question whether the undisputed facts or the facts found by the circuit court give rise to a legitimate expectation of privacy on the part of the defendant is a question of law decided by the court. See State v. Rewolinski, 159 Wis. 2d 1, 17, 464 N.W.2d 401 (1990).

       To the extent that Nelson argues in his reply brief that "reasonable expectation of privacy" in the Fourth Amendment context is determined without consideration of the government's or society's interest in law enforcement, he is mistaken. Rewolinski, at 12-13, 21.

       The entire amendment to Wis. Stat. § 944.205(2)(a) was:
      944.205 (title) (Photographs, motion pictures, videotapes or other visual representations Recordings showing nudity.
      944.205(2)(a) (Takes a -photograph-or-makes a motion picture? videotape or other visual representation or-reproductlon-that depicts Records an image of nudity without the knowledge and consent of the person who is depicted nude while that person is nude in a place and circumstance in which he or she has a reasonable expectation of privacy, if the person recording the image knows or has reason to know that the person who is depicted nude does not know of and consent to the taking--or making of the photograph — motion-piefcurc, videotape or other visual representation or reproduction recording.
      2001 Wis. Act 16, § 3952 (title) and § 3956.

       The dissent in State v. Stevenson, 2000 WI 71, ¶ 55, 236 Wis. 2d 86, 613 N.W.2d 90, refers once to the Fourth Amendment as follows:
      The majority distinguishes the Osborne line of cases on the grounds that a scienter element is a presumption in criminal law. However, the concept of "reasonable expectation of privacy" is also widespread in criminal law, particularly in Fourth Amendment litigation. Reading a "reasonable expectation" requirement into a privacy law is as natural as grafting a scienter element onto criminal laws.
      We conclude that this general observation made by the Stevenson dissent is not persuasive authority for the proposition that, had the majority added "reasonable expectation of privacy" to Wis. Stat. § 944.205 as the State had advocated, the majority would have defined that language as it is defined under Fourth Amendment case law.

       Nelson also points out that the comments to Wis JI— Ceiminal 1396 state:
      The statute uses the term "reasonable expectation of privacy," which is most commonly used in the 4th Amendment context. The definition included in this instruction, [that the person depicted nude had an actual expectation of privacy at the time the depiction of nudity was captured; and that the expectation of privacy was reasonable,] is based on the one used in 4th Amendment cases. See, for example, Katz v. United States, 389 U.S. 347 (1967).
      This comment does not purport to be an analysis of whether "reasonable expectation of privacy" was intended by the legislature to import all Fourth Amendment case law applying this term, as Nelson argues. Moreover, there is no need to resort to Fourth Amendment case law, as opposed to the language of the statute, to arrive at the definition the comment refers to: the common and ordinary meaning of "[a person who] has a reasonable expectation of privacy," Wis. Stat. § 942.09(2)(a), is that the person actually has an expectation of privacy and the expectation is a reasonable one.

       Nelson does not argue that he did not have knowledge of the circumstances that, according to the women's testimony, led them to have an expectation of privacy. Because Nelson does not assert that First Amendment rights are implicated, his vagueness challenge may not be based on hypothetical facts. State v. Hahn, 221 Wis. 2d 670, 679, 586 N.W.2d 5 (Ct. App. 1998). We therefore consider only the facts in this case.

         See also, as examples, Wis JI — Criminal 1250 (before convicting defendant of first-degree reckless injury under Wis. Stat. § 940.23(1), jury is required to determine whether "risk of death or great bodily harm was unreasonable and substantial" and whether defendant was aware of "unreasonable and substantial risk"); Wis JI — Criminal 1284B (jury may find defendant guilty of stalking under Wis. Stat. § 940.32(2e) if defendant knew or should have known his or her act would place victim "in reasonable fear of bodily injury. . ."); Wis JI — Cmminal 1360 (jury is required to find defendant "had reasonable grounds to believe that interference" with emergency medical personnel might endanger safety of another before convicting defendant of obstructing emergency medical personnel under Wis. Stat. § 941.37(3)).

       Wisconsin Stat. § 752.35 provides:
      Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.

       Nelson uses the term "objectively reasonable." However, we have already concluded that "reasonable" in this statute means the application of an objective standard.