author: SNYDER, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Wayne A. Sutton, Defendant-Appellant.

    Court of Appeals

      Nos. 2005AP1693-CR, 2005AP1694-CR.

      Submitted on briefs January 19, 2006. —
    Decided May 17, 2006.

    2006 WI App 118
    (Also reported in 718 N.W.2d 146.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of William E. Schmaal, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and William C. Wolford, assistant attorney general.
    Before Snyder, PJ., Nettesheim and Anderson, JJ.

       Petition to review denied 8-30-06.

   SNYDER, PJ.

¶ 1. Wayne A. Sutton appeals from judgments of conviction and subsequent orders denying postconviction relief. He contends that his plea was not knowingly, intelligently, and voluntarily made because he was not advised of the potential punishment for his crimes. Sutton asserts that Wis. Stat. § 971.08(l)(a) (2003-04), which directs a court to advise a defendant of "the potential punishment if convicted" prior to accepting a plea of guilty or no contest, requires a court to advise the defendant of the maximum term of initial confinement associated with a bifurcated sentence under Wisconsin's truth-in-sentencing law (TIS). This is a case of first impression, requiring us to apply State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), under TIS. Sutton also contends that there was no sufficient factual basis for the charge of first-degree recklessly endangering safety and thus the circuit court erred when it accepted his plea to that charge. We hold that there was a sufficient factual basis in the record to support the conviction, and we further hold that the circuit court properly informed Sutton of "the potential punishment" when it advised him of the maximum term of imprisonment. We therefore affirm the judgments and orders of the circuit court.

FACTS AND PROCEDURAL BACKGROUND

¶ 2. This appeal stems from consolidated cases against Sutton, the first charging him with felony battery and misdemeanor bail jumping, and the second charging him with his fifth offense of operating a motor vehicle with a prohibited alcohol concentration (PAC), felony bail jumping, and a second offense of operating a motor vehicle after revocation. By plea agreement, the State amended the felony battery charge to first-degree reckless endangerment and agreed to dismiss and read in the misdemeanor bail jumping charge in exchange for Sutton's plea of guilty or no contest. The State also agreed to dismiss and read in the felony bail jumping and operating after revocation charges in exchange for a plea of guilty or no contest to the fifth offense of PAC. Consequently, Sutton pled to a Class D felony, first-degree reckless endangerment under Wis. Stat. § 941.30(1) (2001-02), and a Class H felony, a fifth PAC offense under Wis. Stat. §§ 346.63(l)(b) and 346.65(2)(e).

¶ 3. Both convictions are subject to bifurcated sentences under Wisconsin's TIS. The Class D felony under TIS-I is punishable by a fine and an overall sentence of not more than ten years' imprisonment, of which the term of initial confinement may not exceed five years. Wis. Stat. §§ 939.50(3)(c) and 973.01(2)(b)4. (1999-2000). The Class H felony under TIS-II is punishable by a fine and an overall sentence of not less than six months nor more than six years' imprisonment, of which the term of initial confinement may not exceed three years. Wis. Stat. §§ 346.65(2)(e), 939.50(3)(h), 973.01(2)(b)8.

¶ 4. During the plea colloquy regarding the reckless endangerment charge, the circuit court advised Sutton that the penalty for the Class D felony reckless endangerment included a "maximum penalty of $10,000 or ten years' imprisonment or both." Regarding the PAC charge, the court stated, "If you are convicted of that offense, sir, which would be your 5th offense for an OWI-related incident, that would be a Class H felony, and ... you would be looking at a fine of between $600 and $10,000 and imprisonment for between six months and six years." The court also advised Sutton of the maximum term of imprisonment for the charges that were dismissed but read in under the plea agreement. The court later advised Sutton that it would not have to follow the sentencing recommendations of either party and could impose the "maximum that the law allows," including "ten years in prison" for first-degree reckless endangerment and "six years in prison" for the PAC offense.

¶ 5. With regard to the conviction for recklessly endangering safety, the circuit court imposed an eight-year sentence, with three years of initial confinement and five years of extended supervision. The court imposed a four-year sentence in connection with the PAC conviction, ordering fourteen months of initial confinement in prison and thirty-four months of extended supervision. The court ordered the sentences to be served consecutively.

¶ 6. Sutton moved for postconviction relief, arguing that his pleas were not knowingly, intelligently, and voluntarily entered with respect to the potential punishment. Sutton also contended that there was no factual basis for the amended charge of first-degree reckless endangerment. The circuit court denied Sutton's motion, holding that the plea colloquy met the requirements of Bangert. Sutton appeals.

DISCUSSION

¶ 7. Sutton presents two issues for our review. First, we must determine whether the circuit court complied with the mandate of Wis. Stat. § 971.08(l)(a), which requires that a defendant be informed of the potential punishment he or she faces if convicted. It is well established that a criminal defendant must enter a plea of guilty or no contest knowingly, intelligently, and voluntarily. State v. Bollig, 2000 WI 6, ¶ 15, 232 Wis. 2d 561, 605 N.W.2d 199. When a defendant is not aware of the potential punishment, the plea is not entered knowingly, intelligently, and voluntarily, and the result is a manifest injustice. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 635-36, 579 N.W.2d 698 (1998).

¶ 8. Second, we must determine whether the circuit court complied with Wis. Stat. § 971.08(1)(b), which requires a court to "[m]ake such inquiry as satisfies it that the defendant in fact committed the crime charged." Unless it was clearly erroneous, we will uphold the circuit court's determination that there existed a sufficient factual basis to accept the plea. State v. Harrington, 181 Wis. 2d 985, 989, 512 N.W.2d 261 (Ct. App. 1994).

Potential Penalty Under TIS

¶ 9. The circuit court's duty when accepting a plea of guilty or no contest is codified in Wis. Stat. § 971.08 and further developed in Bangert. Our specific focus is on the statutory language requiring the circuit court to determine that the defendant understands "the potential punishment if convicted," and the Bangert standard requiring a court to "establish the accused's understanding of.. . the range of punishments" associated with the crime charged. Bangert, 131 Wis. 2d at 261-62.

¶ 10. Sutton asserts that when a defendant, who is subject to a bifurcated sentence under TIS, is advised of a maximum term of imprisonment without being advised of the maximum term of initial confinement, the result is coercive because the term "imprisonment" connotes confinement. Sutton was told that his maximum penalty included "ten years' imprisonment" on the reckless endangerment charge and "imprisonment for between six months and six years" on the PAC charge. As he understood it, Sutton faced up to sixteen years in prison on these two charges. The statutes, however, dictate a maximum of five years' initial confinement and three years' initial confinement respectively. Wxs. Stat. §§ 973.01(2)(b)4 (1999-2000) and 973.01(2)(b)8. Had he been advised of the maximum terms of initial confinement, Sutton implies, he may have weighed differently his decision to plead guilty or no contest.

¶ 11. Making a defendant aware of the potential punishment generally means that a defendant must be aware of the direct consequences of his or her plea. See State v. Byrge, 2000 WI101, ¶ 60, 237 Wis. 2d 197, 614 N.W.2d 477. A direct consequence of a plea has "a definite, immediate, and largely automatic effect on the range of a defendant's punishment." Id., ¶¶ 60-61. However, the circuit court need not inform a defendant of collateral consequences of a plea. Id., ¶ 61. "The distinction between direct and collateral consequences essentially recognizes that it would be unreasonable and impractical to require a circuit court to be cognizant of every conceivable consequence before the court accepts a plea." Id., ¶ 61.

¶ 12. Sutton argues that the maximum term of initial confinement is a direct consequence of a plea and the circuit court had an obligation to include that information in the colloquy. Sutton turns to Byrge for support. There, the circuit court sentenced Byrge to life imprisonment for first-degree intentional homicide and set a parole eligibility date of July 2, 2095, noting that Byrge would be 120 years old at that time. Id., ¶¶ 21, 56. The State maintained that the circuit court's power to set the parole eligibility date represents only a collateral consequence of the plea, and therefore Wis. Stat. § 971.08(l)(a) did not obligate the circuit court to notify Byrge that it would exercise its option to set parole eligibility. See Byrge, 237 Wis. 2d 197, ¶ 62. The Byrge court rejected the State's position, holding:

[A] different set of considerations arises in the limited circumstances in which a sentencing court itself sets the parole eligibility date. If a circuit court elects to exercise the statutory option set forth in Wis. Stat. § 973.014(2), as it did in this case, the parole eligibility date links automatically to the period of incarceration, which in turn has a direct and automatic effect on the range of punishment. At Byrge's plea hearing, the circuit court expressly acknowledged this reality when it selected a parole eligibility date that exceeded Byrge's anticipated life span.

Byrge, 237 Wis. 2d 197, ¶ 67. Sutton posits that the circumstances in Byrge are analogous to terms of initial confinement under TIS for purposes of accepting a plea because they represent "boundaries or conditions on the trial court's broad discretionary power to fix a term of imprisonment under the overall statutory ceiling." The State argues that Sutton reads Byrge too broadly because Byrge, by its own terms, has a very specific and limited application. Indeed, the supreme court held "that in the narrow circumstance in which a circuit court has statutory authority under Wis. Stat. § 973.014(2) to fix the parole eligibility date, the circuit court is obligated to provide the defendant with parole eligibility information before accepting a plea." Byrge, 237 Wis. 2d 197, ¶ 68.

¶ 13. The State contends that the initial term of confinement is not a direct result of a plea, but rather a collateral consequence that is contingent on future events. It points out that periods of confinement are often reduced or extended depending on various circumstances and "are not nearly as fixed" as parole eligibility dates. For example, initial terms of confinement may be modified by a successful motion for modification under Wis. Stat. § 973.195(lr); participation in the challenge incarceration program under Wis. Stat. § 302.045(3m); conditions of age or terminal illness under Wis. Stat. § 302.113(9g); or misconduct in prison under § 302.113(3)(a). The State directs us to State v. Yates, 2000 WI App 224, ¶¶ 10-11, 239 Wis. 2d 17, 619 N.W2d 132, for the proposition that since confinement periods may be controlled by a defendant's own behavior or a Department of Corrections decision, the consequence is collateral.

¶ 14. Perhaps most persuasively, the State points out that Sutton's range of punishment, that is the maximum term of imprisonment, does not change regardless of whether his conduct results in more confinement. The maximum term of imprisonment is the immediate and inflexible consequence of the plea and therefore, the State argues, the only direct consequence. See, e.g., State v. Plank, 2005 WI App 109, ¶ 16, 282 Wis. 2d 522, 699 N.W.2d 235, review denied, 2005 WI 136, 285 Wis. 2d 630, 703 N.W.2d 379 ("The lack of parole under truth-in-sentencing does not mean [a defendant] will serve more time than the maximum penalty of which the court informed him [or her]. Thus, truth-in-sentencing does not affect his [or her] range of punishment.").

¶ 15. Bangert requires the circuit court to advise the accused of the "range of punishments" associated with the crime. See Bangert, 131 Wis. 2d at 261-62. The court here personally informed Sutton of the maximum term of imprisonment under TIS, even though the maximum term of confinement was not made explicit by the court. We hold that the circuit court has met the standard articulated by our supreme court in Bangert and no additional dissection of the potential punishment is required.

Adequate Factual Basis to Support Conviction

¶ 16. Sutton next argues that the circuit court erred in accepting his plea on the charge of first-degree recklessly endangering safety because there was not a sufficient factual basis for that charge. When we review a circuit court's determination that a sufficient factual basis exists to support a plea, we look at the totality of the circumstances surrounding the plea to determine whether the court's findings were clearly erroneous. See State v. Thomas, 2000 WI 13, ¶ 18, 232 Wis. 2d 714, 605 N.W.2d 836. We approach this issue recognizing that where, as here, the plea is pursuant to a negotiated agreement between the State and the defendant, "the court need not go to the same length to determine whether the facts would sustain the charge as it would where there is no negotiated plea." See Broadie v. State, 68 Wis. 2d 420, 423-24, 228 N.W.2d 687 (1975).

¶ 17. Generally, the factual basis for a guilty plea may be established by reference to the allegations set forth in the criminal complaint. See, e.g., State v. Harrington, 181 Wis. 2d at 988 (complaint provided factual basis for burglary plea). Here, that approach is somewhat hindered because the charged offense was battery, but Sutton pled to reckless endangerment. Other facts may be gleaned from the plea hearing record, the sentencing hearing record, as well as defense counsel's statements concerning the factual basis presented by the State. See Thomas, 232 Wis. 2d 714, ¶ 18.

¶ 18. Here, the State expressed concerns that it would not be able to meet its burden of proof on the element of intent required for the battery charge in the complaint. See Wis. Stat. § 940.19(4) (2001-02). The plea bargain resulted in a charge of first-degree reckless endangerment, which required a factual basis for the following elements: (1) the defendant endangered the safety of another human being, (2) by criminally reek-less conduct, and (3) showed utter disregard for human life. See Wis JI — Criminal 1345. The element of intent is no longer a factor.

¶ 19. The record demonstrates that the circuit court wrestled with the elements of the negotiated charge. At the plea hearing, the court opined, "[I]t could be that Mr. Sutton knew of the condition [the victim] was left in at the bathroom of the [bar], and, as such, knowing that condition and leaving him there could constitute criminally reckless conduct." Upon Sutton's motion for reconsideration, the court stated:

Did I have concerns? Yes. Did I recognize that there may have been some problems with the factual aspect of this case as it related to the elements of the crime of first degree reckless endangerment? Yes. But on the other hand, I told Mr. Sutton that I had those concerns and that he had the right to take this case to trial if that was his position.
When the trial court is told, as a result of a three-way conference between the defendant, his attorney and the State, that this is the result that they want and this is the factual basis that they are stipulating to, that a court, even if it has concerns over that legal basis, ought to have a right to say, all right. I will rely on that factual basis as represented to me ....

Ultimately, the circuit court confirmed its holding that an adequate factual basis existed for the plea. Our review of the record supports this decision.

¶ 20. Separate and apart from the question of intent, the complaint alleged that the victim walked into the restroom and about two minutes later Sutton walked out of the restroom and appeared angry. The complaint relates that the victim was discovered shortly after Sutton left the men's room, and the victim was lying on the men's room floor, unconscious and with blood around his mouth.

¶ 21. At the plea hearing, the State presented the basis for the amended charge of first-degree reckless endangerment, relying in part on statements Sutton made to a West Bend police officer. In his statement, Sutton said that the victim lunged or tried to strike him while the two of them were in a small restroom at a bar. Sutton responded by pushing the victim. Defense counsel acknowledged that the victim may have hit the wall, toilet, urinal or sink after Sutton pushed him. Sutton then left the restroom without checking on the victim. The State responded to the court's concerns regarding the element of "utter disregard for human life" by stating that the nature of the victim's injuries were such that anyone in Sutton's position "should have known how serious the injuries were and should have done something to render aid to the victim." Defense counsel responded that the prosecutor's statements were correct and made it clear that though Sutton could not plead to any charge that included an element of intent, he felt that first-degree reckless endangerment presented an opportunity for a "plausible plea to a plausible circumstance of events."

¶ 22. Sutton argues on appeal that his defensive action in pushing the victim cannot form the basis for criminally reckless conduct. That argument would have been available to him at trial. However, Sutton exhorted the court to accept the version of facts that were presented in support of the reckless endangerment charge. "[A] factual basis for a plea exists if an inculpa-tory inference can be drawn from the complaint or facts admitted to by the defendant even though it may conflict with an exculpatory inference elsewhere in the record and the defendant later maintains that the exculpatory inference is the correct one." State v. Black, 2001 WI 31, ¶ 16, 242 Wis. 2d 126, 624 N.W.2d 363. "The essence of what a defendant waives when he or she enters a guilty or no contest plea" is the opportunity to defend against the inculpatory inferences and advocate those that are exculpatory. See id.

¶ 23. Here, the circuit court properly scrutinized the information presented by both parties and questioned the attorneys extensively before determining that a sufficient factual basis existed for the plea. A circuit court fulfills its duty when it makes "such inquiry as satisfies [the court] that the defendant in fact committed the crime charged." Wis. Stat. § 971.08(l)(b). Based upon the foregoing, we hold that the circuit court applied the proper legal standard and its decision is supported by the totality of the circumstances.

CONCLUSION

¶ 24. We conclude that the circuit court properly advised Sutton of the "range of punishments" associated with his crimes when it informed him of the maximum term of imprisonment that could be imposed. See Bangert, 131 Wis. 2d at 261-62. Nothing in Wis. Stat. § 971.08(l)(a) or Bangert convinces us that a sentencing court must make the maximum term of confinement associated with a bifurcated sentence explicit prior to accepting a plea of guilty or no contest. We further conclude that the court did not erroneously exercise its discretion in determining that a sufficient factual basis existed for accepting Sutton's plea of no contest to the charge of first-degree reckless endangerment. Accordingly we affirm the judgments of the circuit court together with the postconviction orders.

By the Court. — Judgments and orders affirmed.

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

       We certified the following issue to the Wisconsin supreme court:
      Whether Wis. Stat. § 971.08(l)(a) (2003-04), which directs a court to advise a defendant of "the potential punishment if convicted" prior to accepting a plea of guilty or no contest, requires a court to advise the defendant of the maximum term of initial confinement associated with a bifurcated sentence under Wisconsin's truth-in-sentencing law.
      The supreme court denied certification. We now address the issue.

       Effective February 1, 2003, first-degree reckless endangerment was reclassified from a Class D felony to a Class F felony. See note to Wis. Stat. § 941.30(1) (2001-02).

       The reckless endangerment charge arose from an event that took place on April 10, 2002. TIS-I applies to offenses committed between December 31, 1999 and January 31, 2003. The PAC charge arose from an event on May 3, 2004. TIS-II applies to offenses committed on or after February 1, 2003. See State v. Cole, 2003 WI 59, ¶ 4, 262 Wis. 2d 167, 663 N.W.2d 700.

       It is worth noting that the word "imprisonment" has been interpreted in "common-sense fashion to mean incarcerated or confined in jail or prison." Cole, 262 Wis. 2d 167, ¶ 26. When the legislature enacted TIS-I, it gave the term a unique statutory meaning; specifically, "imprisonment" was defined as a bifurcated sentence comprised of initial confinement and extended supervision. Id., ¶ 27; Wis. Stat. § 973.01 (1999-2000). Prior to the enactment of TIS-I, circuit courts advising defendants of a maximum term of imprisonment used the common-sense meaning of confinement. See Cole, 262 Wis. 2d 167, ¶ 26. Even under TIS-I, the legislature occasionally used "imprisonment" to mean confinement alone. Id., ¶ 37.

       The complaint also alleges that Sutton admitted assaulting a man in a tavern restroom and kicking the man in the head. The complaint states that Sutton asked an acquaintance to provide him with an alibi. At the plea hearing the circuit court expressly rejected these contentions and stated it would make a determination based upon Sutton's description of pushing the victim after the victim initiated the confrontation as the basis for the plea.


source: Caselaw Access Project

author: DYKMAN, J.

license: Public Domain

text:
    James Bryhan and Geralyn Bryhan, Plaintiffs-Respondents, v. Dan Pink d/b/a Pink Farms and Andy Pink d/b/a Pink Farms, Defendants-Appellants.
    Court of Appeals

      No. 2005AP1030.

      Submitted on briefs October 13, 2005.

      —Decided May 18, 2006.

    2006 WI App 111
    (Also reported in 718 N.W.2d 112.)

      On behalf of the defendants-appellants, the cause was submitted on the brief of Davin C. Curtiss of O'Connor & Thomas, EC., Dubuque, Iowa.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Craig R. Day, of Law Office of Craig R. Day, Lancaster.
    Before Dykman, Vergeront and Deininger, JJ.
   DYKMAN, J.

¶ 1. Dan and Andy Pink d/b/a Pink Farms appeal from a small claims judgment requiring them to pay $5,000 to James and Geralyn Bryan for damage to the Bryans' lawn caused when fifteen to twenty of Pink Farms' cattle wandered through an open gate onto the Bryans' property. Pink Farms contends the trial court erred in holding it liable for the Bryans' damages, or, at a minimum, erred in concluding that their share of negligence was equal to that of the Bryans' share. It further contends the trial court erred in calculating the damage award by applying the Bry-ans' share of negligence to the Bryans' actual damages rather than to the $5,000 statutory limit for small claims awards. Because we conclude that the trial court's factual findings concerning the question of negligence were not clearly erroneous and that the trial court properly calculated the amount of the damage award, we affirm.

BACKGROUND

¶ 2. One morning in early March 2004, fifteen to twenty Holstein cows owned by Pink Farms passed through an open gate separating Pink Farms' pasture and the Bryans' residential backyard. A neighbor discovered that the cows were out — the Bryans were on vacation at the time — and informed the Pinks. Andrew Pink went to the Bryans' and herded the cows back into his pasture. The ground was soft and muddy, and when the Bryans returned they found their lawn pocked with cattle tracks. The Bryans eventually brought this small claims action against Pink Farms seeking damages for the repair of their lawn.

¶ 3. At trial, Andrew Pink testified that the gate appeared to have been purposefully opened because it was neatly propped up against the fence and not lying on the ground. He stated that the Pinks had never used the gate in his fifty-three years on the farm, but that snowmobilers had used it in the past to gain access to Pink Farms' property. He said that while he had given the local snowmobile club permission to go through his property in the past, he had not done so in the winter of 2003-04. He testified that Bryan told him shortly after the incident that Bryan had given permission to the snowmobile club to pass through the Bryans' land. Pink stated that during the winter, his cows stayed close to the barn, but when the weather warmed up they would wander out to pasture. He said that each spring he checked the fences before the cows went out to pasture, but had not yet done so in 2004 despite an early thaw. He further testified that it was standard practice for farmers to check their fences regularly. He testified that he had inventoried his cattle the morning before the incident and all were accounted for. James Bryan testified that he had not inspected the fence in the winter of 2003-04 and did not know how long the gate had been left open or who had opened it. Bryan and Pink each offered evidence that the other was responsible for maintaining the section of the fence containing the gate.

¶ 4. At the conclusion of the proceeding, the court found that the gate had most likely been opened by snowmobilers or cross-country skiers and had been left open for some time. The court based this finding on the neat manner in which the gate was propped against the fence, indicating that it was purposefully opened and not blown open by the elements or by a mischief maker.

¶ 5. The tried court found that the question of which party was responsible for maintaining the portion of the fence containing the gate was a red herring and that the relevant issue was the parties' respective duties to ascertain whether the gate was closed. As to the Bryans, the court found that they had a duty to protect their property from outside damage to the extent they could, and that, given the length of time the gate was likely left open and its proximity to their house, they should have noticed the open gate and shut it. The court found, based on Andrew Pink's testimony about Pink Farms' past practices and the customs of area farmers, that Pink Farms had a duty to check its fences before its cows went out to pasture in the spring, and that it had failed to do so despite the warm March weather. The court ultimately found that the Bryans and Pink Farms were equally liable for the damages to the Bryans' lawn.

¶ 6. The court calculated the Bryans' total damages at $12,000. It reduced this amount to account for the Bryans' own negligence, determining the Bryans' allowable damages to be $6,000. The court awarded the Bryans $5,000, the statutory limit on small claims awards and the amount sought by the Bryans. Pink Farms appeals.

Discussion

¶ 7. On appeal, Pink Farms raises two issues. First, it challenges the trial court's determination that it was negligent and the court's apportionment of comparative negligence. Second, it contends that the trial court erred in calculating the amount of the damage award by applying its comparative negligence determination to the Bryans' total damages of $12,000 and not the small claims award limit of $5,000. We address each issue in turn.

Negligence and Comparative Negligence

¶ 8. A keeper of a domesticated animal must exercise ordinary care in controlling the characteristics normal to the animal's class. White v. Leeder, 149 Wis. 2d 948, 955, 440 N.W.2d 557 (1989). The existence of negligence is a mixed question of fact and law that is generally left to the fact finder. Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 233, 568 N.W.2d 31 (Ct. App. 1997). A trial court's findings of fact will not be overturned unless they are clearly erroneous. Wis. Stat. § 805.17(2). Whether the facts as found violate a particular duty is a question of law that we review de novo. Hatleberg v. Norwest Bank Wis., 2005 WI 109, ¶ 15,283 Wis. 2d 234, 700 N.W.2d 15. We will sustain an apportionment of negligence unless the trial court's determination is clearly erroneous. Voigt v. Riesterer, 187 Wis. 2d 459, 467, 523 N.W.2d 133 (Ct. App. 1994).

¶ 9. Pink Farms contends that the trial court record demonstrates that it exercised ordinary care in managing its cattle, and that, under the facts of this case, the trial court could not have found it negligent. Pink Farms notes that uncontroverted testimony showed that Andrew Pink inventoried the cattle the morning before the incident; that the fence and gate were in a state of good repair; that Pink Farms inspected the fence each spring; and that Pink Farms had not used the gate for any purpose in fifty-three years. Further, Pink Farms asserts that the evidence established that the gate was on the half of the fence that the Bryans were responsible for maintaining under an arrangement dating back several generations between the owners of the two properties. Moreover, the gate was visible from the Bryans' residence and was far from the Pinks' home. Pink Farms further notes that no evidence was presented showing that Pink Farms had given anyone permission to open the gate or that they knew when or for how long the gate had been opened. Pink Farms asserts that because these facts demonstrate that it exercised due care, the trial court, in effect, erroneously held it to a standard of strict liability for the damage caused by its livestock. We disagree.

¶ 10. Based on Andrew Pink's testimony, the trial court could reasonably determine that Pink Farms was negligent in failing to ensure that the gate was closed. Pink testified that his cattle went to pasture when the weather warmed up, and that he had not checked the fences yet this year despite the spring-like temperatures that March. The trial court found that Pink Farms had a duty to check the fence based on Andrew Pink's testimony that it was the custom of area farmers to do so before letting their cows out to pasture in the spring. The court could reasonably conclude that failure to check its fences to prevent its cows from wandering off was negligent when Pink Farms knew the cows would venture into the pasture when the weather warmed up. Further, the trial court could reasonably conclude Pink Farms had particular reason to check its gate because, according to Andrew Pink's testimony, snowmobilers had used it in previous years.

¶ 11. Pink Farms contends that, at a minimum, the trial court's apportionment of negligence should be set aside because Pink Farms' negligence was far less than the negligence of the Bryans. We again disagree. The court reasonably found that the Bryans' obligation was based on their proximity to the gate and their duty to protect their property, while Pink Farms had a duty to check the fence in the spring to ensure that its cattle did not wander off its property. The trial court's determination that these respective obligations were equal was not clearly erroneous.

Calculation of the Damage Award

¶ 12. In calculating the Bryans' damage award, the trial court determined the Bryans' actual damages to be $12,000, and reduced this figure to $6,000 to account for the Bryans' fifty percent negligence. It then awarded the $5,000 statutory maximum for small claims actions. Wis. Stat. § 799.01(1). Pink Farms contends the trial court erred in its calculation and should have started with the $5,000 statutory damages limit and reduced this figure by the Bryans' share of negligence. Whether a comparative negligence determination is applied to the actual damages or the small claims award limit of $5,000 when determining the damage award is a question of first impression in Wisconsin.

¶ 13. To resolve this issue, we must examine Wisconsin's limitation on small claims actions provided in Wis. Stat. § 799.01(l)(d), and the comparative negligence statute, Wis. Stat. § 895.045(1). Statutory interpretation is a question of law that we review de novo. Rocker v. USAA Cas. Ins. Co., 2006 WI 26, ¶ 23, 289 Wis.2d 294, 711 N.W.2d 634.

¶ 14. Wisconsin Stat. § 799.01(1) provides that "the procedure in [the small claims chapter of the Wisconsin statutes] is the exclusive procedure to be used in circuit court in... (d)... actions where the amount claimed is $5,000 or less, if the proceedings are ... 1. [f] or money judgments only." Wisconsin Stat. § 895.045(1) provides that "any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering."

¶ 15. Pink Farms contends that under Wis. Stat. § 799.01(1) a small claims court exceeds its jurisdiction if it "entertain[s] claimed damages in excess of $5,000" even if the final award is $5,000 or less. Further, Pink Farms contends that because Wis. Stat. § 895.045(1) provides that a damage award to be reduced by the recovering party's negligence begins with "any damages allowed," the trial court erred in applying the Bryans' fifty percent comparative fault to an amount greater than the $5,000 "allowed" in small claims actions. There are several problems with Pink Farms' analysis.

¶ 16. Pink Farms' view of Wis. Stat. § 799.01(l)(d) is contrary to the plain language of the statute. Small claims procedure is available to plaintiffs for whom the "amount claimed is $5,000 or less," § 799.01(l)(d). The Bryans were prohibited from claiming more than $5,000 by this statute, and their small claims summons and complaint demanded that amount. A plaintiff may elect to sue in small claims court to save time and expense even when actual damages exceed $5,000. The small claims award limitation is a limit on recovery, not a bar that denies the court jurisdiction over cases in which the plaintiffs actual damages exceed $5,000.

¶ 17. Turning to Wis. Stat. § 895.045, the Wisconsin Supreme Court has previously considered that statute in relation to another statute limiting recovery, the wrongful death award limitation. In Mueller v. Silver Fleet Trucking Co., 254 Wis. 458, 37 N.W.2d 66 (1949), a widow sued Silver Fleet, alleging that the negligence of one of its drivers caused the wrongful death of her husband. A jury attributed ninety percent of the negligence to the driver, and ten percent to Mr. Mueller. Id. at 462. It determined that Ms. Mueller's damages for the death of her husband and loss of companionship were $40,200. Id. In calculating the award, the trial court reduced the jury's damage assessment to the wrongful death award limitation of $15,000, then reduced this amount by Mr. Mueller's share of negligence. Id.

¶ 18. The supreme court modified Ms. Mueller's award, concluding that the trial court erred when it reduced the jury's $40,200 damage finding to the $15,000 statutory limit on wrongful death judgments before applying the jury's comparative negligence determination. Id. at 466-67. Construing the comparative negligence statute, Wis. Stat. § 331.045 (1947-48), the Mueller court interpreted the phrase "damages allowed" to mean the total amount of the plaintiffs damages, and not the $15,000 statutory limitation on wrongful death awards. It explained:

The statute provides that the damages allowed shall be diminished by the jury in proportion to the amount of negligence attributable to the person recovering. "Damages allowed" are clearly the total amount found by the jury to be the damage sustained by the plaintiff. This is the amount to be diminished by the jury in proportion to the amount of negligence attributable to the plaintiff. Here the jury allowed the plaintiff damages in the total amount of $40,200. This amount under the finding of the jury should be diminished by ten percent. This leaves a remainder of $36,180, which is the amount which the plaintiff would be entitled to recover if it were not for the provisions of sec. 331.04, Stats. In accordance with the provisions of that section the plaintiff cannot have judgment for damages in an amount in excess of $15,000. Therefore the judgment must be for that amount plus the costs.

Mueller, 254 Wis. at 466-67.

¶ 19. The supreme court affirmed Mueller's interpretation of the comparative negligence statute in Chang v. State Farm Mut. Ins. Co., 182 Wis. 2d 549, 514 N.W.2d 399 (1994). The Chang court reiterated that

a party-beneficiary may prove damages in excess of the statutory maximum, suffer a reduction in those damages for contributory negligence pursuant to sections 895.04(7) and 895.045, Stats., and still be entitled to collect up to the statutory maximum, assuming that damages equal to or greater than the statutory maximum remain after reductions have been made for his or her contributory negligence.

Id. at 566. Significantly, Chang withdrew language in Rineck v. Johnson, 155 Wis. 2d 659, 456 N.W 336 (1990), a medical malpractice case, that appeared to suggest that the reduction of noneconomic damages to the statutory limit in Wis. Stat. § 895.04(7) (1993-94) should precede reduction for comparative fault. Id. The Chang court thus signaled that its interpretation of the comparative negligence statute was not restricted to the wrongful death context, but also applied to other types of claims in which the award is limited by statute.

¶ 20. Accordingly, we conclude that when a trial court finds that a small claims plaintiffs actual damages exceed the statutory award limit of $5,000, the court should apply any reduction for comparative negligence to the damages found before applying the statutory limit. We therefore affirm.

By the Court. — Judgment affirmed.

       This appeal was assigned to one judge pursuant to Wis. Stat. § 752.31(2)(a) (2003-04). The chief judge ordered it heard by a three-judge panel. See § 752.31(3). All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       The pertinent language of Wis. Stat. § 331.045 (1947-48) is nearly identical to the present Wis. Stat. § 895.045: "any damages allowed shall be diminished by the jury in the proportion to the amount of negligence attributable to the person recovering." The present version has dropped "by the jury" and has replaced "attributable" with "attributed."


author: CURLEY, J. FINE, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Edward Bannister, Defendant-Appellant.
    Court of Appeals

      No. 2005AP767-CR.

      Oral argument April 11, 2006.

      —Decided May 23, 2006.

    2006 WI App 136
    (Also reported in 720 N.W.2d 498.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Kenneth P. Casey, Craig S. Powell and Jenny Yuan of the Criminal Appeals Project - Frank J. Remington Center, University of Wisconsin Law School, Madison, with oral argument by Kenneth P. Casey.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager,
      attorney general, and Christopher G. Wren, assistant attorney general, with oral argument by Christopher G. Wren.

    Before Wedemeyer, EJ., Fine and Curley, JJ.

       Petition to review granted 9-12-06.

   CURLEY, J.

¶ 1. Edward J. Bannister appeals the judgment convicting him of one count of delivery of a controlled substance, morphine, contrary to Wis. Stat. §§ 961.14(3) and 961.41(l)(a) (2003-04). Bannister argues that there was insufficient evidence to convict him because his confession was not corroborated by a significant fact. In addition, he alleges that several improprieties at trial prohibited the real controversy from being tried, and he is entitled to a discretionary reversal pursuant to Wis. Stat. § 752.35. Because the State failed to corroborate a significant fact of Bannister's confession, we reverse.

I. Background.

¶ 2. On January 17, 2003, the City of Cudahy police were dispatched to the home of Michael Wolk. Upon their arrival, they discovered that Wolk, who was lying on the loveseat, was dead. Drug paraphernalia consisting of two syringes, a teaspoon, rolling papers, and a small white powdery rock substance were found on a nearby table. Later testing revealed morphine on the two syringes and teaspoon, and an autopsy of Wolk discovered that the cause of death was morphine toxicity. However, no morphine pills were found.

¶ 3. An investigation eventually led police to Bannister after they interviewed Wolk's brother, Steven, who told the police that both he and his brother had obtained morphine from Bannister. Steven Wolk gave the police inconsistent statements concerning the length of time this occurred. Steven also told the police he had a short-term memory deficit. Bannister was arrested and originally charged with delivering a controlled substance, morphine, to Michael Wolk, and first-degree reckless homicide. Some nine months after Wolk's death, Bannister was arrested and taken to the Cudahy police station, where he was given food after he informed the police that he suffers from sickle cell anemia. After being advised of his Miranda rights, Bannister told the detective that he gave morphine tablets to Steven or Michael Wolk eight to ten times between mid-December 2002 to mid-January 2003. The detective who interrogated Bannister later testified that he took notes of what Bannister said and transcribed his notes into a report. However, Bannister never saw the notes or signed the confession, and the notes were destroyed after the report was completed.

¶ 4. Bannister waived his preliminary hearing and demanded a jury trial. On the first day of trial, the State announced that it planned to proceed only on the delivery of morphine charge. However, after Bannister's defense attorney suggested that any discussion of Wolk's death was unduly prejudicial, and the State responded by stating that it was prepared to proceed with the homicide charge, Bannister entered into a stipulation that, in exchange for not having to face the charge of reckless homicide, he would permit the State to introduce evidence that Wolk died as a result of a morphine overdose. Prior to the calling of witnesses, the trial court conducted a Miranda-Goodchild hearing and ruled that Bannister's confession was admissible.

¶ 5. During the State's opening statement to the jury, the prosecutor told the jury that "the purpose of the testimony regarding the death is not [sic] ask someone to answer for that death, but it's an important element of evidence that I think that you have to listen to." He also advised the jury that they may hear from Steven Wolk, and that his testimony would be that he and his brother Michael were either given or they purchased morphine tablets from Bannister over the span of several months, and that the last time they obtained morphine from Bannister was a couple of days before Michael's death either January 14th or 15th, 2003. However, when Steven Wolk was brought to the courtroom from prison (he had recently been convicted of a traffic homicide charge), he indicated under oath and outside the presence of the jury that he would not testify even if the State offered him immunity. As a result, the jury never heard any direct testimony from Steven Wolk.

¶ 6. Several other witnesses were called by the State. The police officer responding to the 911 call described what he observed at the Wolk residence. A laboratory technician and the medical examiner testified that morphine had been found on the drug para-phemalia near Michael Wolk's body, and that Michael Wolk died of morphine toxicity. The Cudahy police detective also testified about Bannister's confession. After the close of testimony at the jury instruction conference, Bannister's attorney advised the court that Steven Wolk did not testify because the prosecutor in his opening statement indicated that Steven Wolk would testify that Bannister had given them morphine pills. The trial court ruled that Bannister's attorney could not mention that Steven Wolk had not testified, because to do so would require the jury to know that Steven Wolk exercised his constitutional rights not to incriminate himself.

¶ 7. Bannister was subsequently convicted and sentenced to five years of confinement with three years of extended supervision to follow. At sentencing, the State asked the trial court, at the behest of Michael Wolk's widow, to order Bannister to pay restitution of approximately $4000 for Wolk's funeral expenses. The trial court agreed, and ordered Bannister to pay the funeral expenses as restitution. A postconviction motion was filed seeking a new trial. It was denied and this appeal follows.

II. AlNALYSXS.

¶ 8. Bannister first argues that there was insufficient evidence to sustain the conviction because his confession was not corroborated by any significant fact. The State maintains that the discovery of morphine in Wolk's body constitutes corroboration of a significant fact. We have carefully scrutinized the testimony in this case. After doing so, we must conclude that, under the unusual facts presented here, the presence of morphine in Michael Wolk's body does not constitute "corroboration of a significant fact" as is required by law.

¶ 9. Developed at common law, Wisconsin's corroboration rule, also known as the corpus delicti rule, requires that a "conviction of a crime may not he grounded on the admission or confessions of the accused alone." State v. Verhasselt, 83 Wis. 2d 647, 661, 266 N.W.2d 342 (1978). Instead, there must be corroboration of a "significant fact." Holt v. State, 17 Wis. 2d 468, 480, 117 N.W.2d 626 (1962). The corroboration rule ensures the reliability of the confession. See Verhasselt, 83 Wis. 2d at 662. "[T]he main concern behind the corroboration rule is that an accused will feel 'coerced or induced' when he or she 'is under the pressure of a police investigation' and make a false confession as a result." State v. Hauk, 2002 WI App 226, ¶ 25, 257 Wis. 2d 579, 652 N.W.2d 393 (footnote omitted). "Such corroboration is required in order to produce a confidence in the truth of the confession." Holt, 17 Wis. 2d at 480. As noted, the corroboration must be of a "significant fact" before the conviction can stand. Schultz v. State, 82 Wis. 2d 737, 753, 264 N.W.2d 245 (1978). While no case law defines exactly what a "significant fact" is, the dictionary defines "significant" as "having or likely to have influence or effect: important." Webster's Ninth New Collegiate Dictionary 1096 (1991). We independently review whether the evidence presented meets the corroboration standard. See Barth v. State, 26 Wis. 2d 466, 468, 132 N.W.2d 578 (1965).

¶ 10. We first observe that there is a dearth of information in the charging portion of the complaint concerning the charge against Bannister. It alleges only that Bannister delivered morphine at his residence "[o]n or about or between December 15, 2002 to January 17, 2003," a thirty-four-day span. No trial testimony explored or elaborated on this delivery. No eyewitnesses to the exchanges testified, and no other details fleshing out the facts of the delivery such as what time of day it occurred, what room the parties were in when the exchange occurred, or how the visit was set up was ever presented. The only evidence admitted at trial concerning these events was Bannister's rather generic confession that the deliveries occurred at his home. Like the charging portion of the complaint, Bannister's statement is also devoid of detail. Bannister told the detective little about the circumstances surrounding the delivery; he never mentioned what time of day the parties would meet, what the parties said, how they communicated, etc. We have only Bannister's barebones confession that at his house he gave morphine pills to Michael Wolk on three or four occasions, and to Steven Wolk on three or four occasions within the span of about one month.

¶ 11. The detective, who knew at the time of the interrogation that Wolk had died of a morphine overdose, testified that: "He told me that he gave morphine to Steve on three to four occasions and to his brother Michael on three to four occasions. I believe he said approximately every third day or in that range." In other words, Bannister confessed to giving Michael Wolk morphine pills three to four times over the span of thirty-four days. If, as the detective related, Bannister gave Michael Wolk the morphine pills three to four times approximately every third day, depending on when he started and stopped, the deliveries to Michael could have been easily concluded by mid-December. Thus, under this scenario, it would be extremely unlikely that any morphine found in Wolk's body on January 17, 2003, was obtained from Bannister unless Wolk saved some, and thus, does not corroborate the confession. Even if we assume that the deliveries occurred nearer to the time of Wolk's death, as was suggested by the prosecutor in his opening statement, when he claimed the last morphine exchange occurred two days before Wolk's death, the evidence of morphine in Wolk's body is not a significant fact corroborating Bannister's confession that he gave morphine pills to Wolk, it corroborates only that Wolk used morphine. This is so because Michael Wolk was a drug addict who regularly used illicit drugs. Consequently, the finding of morphine in his body was not a remarkable or important discovery. Just as a diabetic would have traces of insulin in the bloodstream, evidence of morphine would be expected in the bodies of morphine addicts. A significant fact is a meaningful and particularized fact that produces confidence in the truthfulness of the confession. Based on the evidence produced at trial, the finding of morphine in Wolk's body was not a significant fact corroborating Bannister's confession. Here, no other facts or circumstances supporting Bannister's confession were ever produced. No morphine pills or evidence of morphine pills were found next to Wolk's body, and the expert witnesses were unable to pinpoint the source of the morphine. No independent eyewitness testified to any drug exchanges between Bannister and the Wolks. Further, Bannister's confession did not yield any unusual information or circumstances that would not be widely known. Thus, under the circumstances present here, without additional evidence, the finding of morphine in Michael Wolk's morphine-addicted body is not sufficient to corroborate Bannister's confession claiming to have given morphine pills on prior uncertain dates to the deceased.

¶ 12. Inasmuch as the lack of corroboration of the confession presents the very situation that the corroboration rule was designed to prevent; that is, the possibility that the confession could have been false, the corroboration rule was not met. Accordingly, the evidence was insufficient to convict Bannister. Consequently, we reverse the conviction and remand this matter to the trial court for further proceedings.

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

FINE, J.

¶ 13. {concurring). I join fully in the Majority Opinion, but write separately to discuss two matters to which the Majority alludes: (1) the prosecutor's extortion of Edward Bannister's agreement to let the jury know that Michael Wolk died from an overdose of morphine, and (2) the prosecutor's basing his opening statement in part on Steven Wolk's projected testimony when on this Record there is nothing to show that the prosecutor had a good-faith basis to believe that Steven Wolk would not claim his Fifth Amendment privilege to not testify. I discuss these in turn.

(1) Michael Wolk's death.

¶ 14. As the Majority notes, although the State originally charged Edward Bannister with unlawful delivery of morphine, see Wis. Stat. §§ 961.14(3) & 961.41(l)(a), and first-degree reckless homicide, see Wis. Stat. § 940.02(2) (death resulting from the unlawful delivery of a controlled substance), on the morning of the first trial day, the prosecutor said that he would not pursue the homicide charge if Bannister agreed that the prosecutor could let the jury know that Michael Wolk died from a morphine overdose. Bannister's lawyer objected, and noted that the lead prosecutor had told him earlier that the State did not believe it had sufficient evidence to prove the reckless-homicide charge, and that the threat to file an amended information charging only first-degree reckless homicide was thus, as phrased by Bannister's lawyer, "just an end run attempt" to get the evidence of death before the jury. When the trial court said that it would permit the prosecutor to file a single-count amended information charging Bannister with first-degree reckless homicide, Bannister decided to let the prosecutor tell the jury that Michael Wolk died from a morphine overdose.

¶ 15. Later, in his opening statement to the jury, the prosecutor emphasized Michael Wolk's overdose death, relating how Wolk's wife found him dead in their living room:

And the purpose of the testimony regarding the death is not [sic] ask someone to answer for that death, but it's an important element of evidence that I think that you have to listen to. So although it may be painful to listen to it, it may not be the nicest evidence you'll hear. It's important. It's important because his wife found him, what ends up, being dead.

The prosecutor then told the jury that the Milwaukee medical examiner and a toxicologist working in his office would testify that Michael Wolk died on January 17, 2003, from an overdose of morphine that he ingested either that day or the night before, but that the prosecutor was "not asking" the jury "to make a determination who is at fault for Michael Wolk's death. I don't know who is at fault for that death. I know who is at fault for giving him, several days before, some morphine and selling it to him, and that's this defendant right here." (Emphasis added.) In my view, all of this was highly improper.

¶ 16. First, a lawyer may never tell a jury what the lawyer knows about the contested issues in a case. Supreme Court Rule 20:3.4 is not only explicit: "A lawyer shall not: ... (e) in trial,... assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause,... or the guilt... of an accused," but, indeed, this is law-school 101. Frankly, it is shocking that this lawyer, Milwaukee County assistant district attorney Denis Stingl, apparently did not know that, or, if he did know it, ignored the proscription nevertheless. But that is not all.

[A prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88 (1935). Although as contended by the State in oral argument on this appeal, Michael Wolk's death from a morphine overdose was evidence of his recent ingestion of morphine (while the traces found in his house could have been left there at almost any time), that fact was not relevant because Bannister's confession (the only "evidence" tying Bannister to morphine in Michael Wolk's house) encompassed mid-December 2002 to mid-January 2003, and the morphine that caused Michael Wolk's death could have been gotten by him at any time — even before December of 2002. In any event, the solution was to ask for an agreement that Michael Wolk possessed morphine in mid-January 2003 without telling the jury that he died as a result. Waving the "bloody shirt" of Wolk's overdose death invited — in the most blatant way — the jury to consider the evidence as proving that, beyond the delivery-charge, Bannister was also guilty of homicide. Thus, the prosecutor's "warning" to the jury that "the purpose of the testimony regarding the death is not [sic] ask someone to answer for that death, but it's an important element of evidence that I think that you have to listen to" was disingenuous and not befitting the important role for justice that prosecutors have in our system. Indeed, it is a perfect example of the apophasis rhetorical device — arguing something by disclaiming an attempt to so argue. The prosecutor's opening-statement dance was, as Justice Felix Frankfurter noted in a somewhat related context, akin to "the Mark Twain story of the little boy who was told to stand in a corner and not to think of a white elephant." Leviton v. United States, 343 U.S. 946, 948 (1952) (mem. of Frankfurter, J.).

(2) Steven Wolk's non-testimony.

¶ 17. As the Majority recounts, the prosecutor told the jury that Steven Wolk, Michael Wolk's brother, would testify that they both got morphine from Bannister in mid-January:

I'm asking, for instance, if Steven [Wolk] should testify, you listen to him and you weigh his evidence and you weigh his credibility. It'll be out there for you. You may find he's a distasteful individual. He's a drug user. His brother was a drug user. Drugs kñled his brother. You'll hear— it'll be clear that Steven Wolk isn't the nicest person in the world but he's a witness to what happened.
He'll tell you that over a span of time, that he and his brother, together with Steven, would obtain morphine from the defendant, Edward Bannister. It went on for about a year. They would go to Edward Bannister's home and obtain it. Sometimes, Edward Bannister would give it to him, according to Steven. I don't know if that's true— but one thing, you have to weigh everything— would give it to him free of charge. Sometimes, he'd give him some good faith money. That on or about the 14th or 15th of January, he can't remember the exact day, sometime in late morning or early afternoon, Steven Wolk, Michael Wolk went to the defendant's home and the defendant gave them two tablets of morphine, that they in turn gave the defendant $20.00 in exchange for that, and that Steven took one pill and Michael took another one of the pills so that they could use it at a later date or later time.

(Emphasis added.)

¶ 18. Steven Wolk never testified. Rather, when he was ostensibly supposed to testify, .he and his lawyer told the trial court that Steven Wolk would invoke his Fifth Amendment privilege to not testify. When Bannister's lawyer asked the trial court whether he could refer in his closing argument to the fact that despite the prosecutor's assertions in his opening statement about what Steven Wolk would tell the jury, the State never produced Steven Wolk to the jury, the prosecutor complained that that would be unfair because, among other things, "I mentioned him as a potential witness. You will maybe hear from him or about him." (Emphasis added.)

¶ 19. The trial court ruled that not only could Bannister's lawyer not tell the jury that Steven Wolk asserted his Fifth Amendment privilege, see Wis. Stat. Rule 905.13(1) (In criminal cases, "[t]he claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel."), but, also, and this is the crux, forbade Bannister's lawyer from arguing that the prosecutor did not keep his promise about what Steven Wolk would testify, ruling: "I don't think you should reference him as failing to be a reference [sic]." In my view, this was error.

¶ 20. A prosecutor's use of non-evidence (such as assertions in an opening statement or, under some circumstances, questions) to sway a jury, can deny a defendant his or her right to confrontation when those assertions are not backed by evidence produced at trial. Douglas v. Alabama, 380 U.S. 415, 418-420 (1965) (defendant denied right to confrontation when prosecutor's statements and questions, although "not technically testimony," were the equivalent in the jury's eyes, thus triggering the right to confront). Of course, not every opening-statement promise of proof that is not validated by evidence is a prejudicial denial of the confrontation right. See Frazier v. Cupp, 394 U.S. 731, 733-737 (1969) (de minimis effect on trial and prosecutor's good faith belief that evidence could be produced) ("Certainly not every variance between the advance description and the actual presentation constitutes reversible error, when a proper limiting instruction has been given."). There is nothing in the Record here, unlike the situation in Frazier, 394 U.S. at 733, that indicates that the prosecutor in this case tried to determine ahead of time that Steven Wolk would testify and that the prosecutor was misled by Steven Wolk's last-minute change of heart. Indeed, when the trial court prevented him from telling the jury that Steven Wolk did not testify, Bannister's lawyer pointed out that whether Steven Wolk would or would not testify "could have been asked of him a longtime ago." The trial court, however, excused the prosecutor's failure to find out if Steven Wolk would testify by noting that Steven Wolk was in prison. The prosecutor, tacitly admitting that he did not bother to find out, replied that any assurance Steven Wolk could have given him would have been transitory because "he can change his mind up to the very moment."

¶ 21. Further, and working synergistically with the defendant's right to confront his or her accusers, is the rule that no party, especially a prosecutor in a criminal case, may promise to prove something that he or she knows, or reasonably should know, cannot be proven by evidence at trial. See ABA Standards for Criminal Justice: Prosecution Function and Defense Function, Standard 3-5.5 Opening Statement (3d ed. 1993) ("The prosecutor's opening statement should be confined to a statement of the issues in the case and the evidence the prosecutor intends to offer which the prosecutor believes in good faith will be available and admissible. A prosecutor should not allude to any evidence unless there is a good faith and reasonable basis for believing that such evidence will be tendered and admitted in evidence.") (emphasis added).

¶ 22. It is no answer to say that the trial court told the jury that the lawyers' arguments were "not evidence" — the jury heard the prosecutor's version of what Steven Wolk would tell them, and that went unrebutted when the trial court refused to allow the defense lawyer to even remind the jury that it was a prosecutorial promise not kept. Indeed, as we have already seen, the prosecutor also improperly told the jury that he "knew" that Bannister had given morphine to Michael Wolk "several days before" Wolk's death on January 17, and that was the precise piece of the puzzle that the prosecutor promised the jury would be supplied by Steven Wolk.

¶ 23. We indulge the presumption that juries follow instructions because that advances the goals of finality. If we did not, we'd be trying the same case over and over again — the jurisprudential equivalent of a structure drawn by Maurits C. Escher. Yet, we must not let this general rule blind us to the rare situation when the trial court's instructions do not cure the prejudice. As Learned Hand repeatedly warned, the efficacy of the instructions are more assumed than real. See United States v. Delli Paoli, 229 F.2d 319, 321 (2d Cir. 1956) ("Possibly it would be extreme to say that nobody can ever so far control his reasoning that he will not in some measure base his conclusion upon a part of the relevant evidence before him, which he has been told to disregard; but at least it is true that relatively few persons have any such power, involving as it does a violence to all our habitual ways of thinking."), aff'd, 352 U.S. 232; Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932) (Instruction to jury to ignore prejudicial evidence often requires them to perform "a mental gymnastic which is beyond, not only their powers, but anybody's else."), cert. denied, 285 U.S. 556. Here, Steven Wolk's projected testimony was the key link tying Bannister to the delivery of any morphine to Michael Wolk, no less the delivery of morphine to Michael Wolk several days or so before January 17.

(3) Conclusion.

¶ 24. If the prosecutor believed he could prove that Bannister had given Michael Wolk the morphine that caused Michael Wolk's death, he should have stayed with the first-degree-reckless-homicide charge and let the jury decide Bannister's guilt or innocence on that charge. If the prosecutor did not believe that he could prove that Bannister had given Michael Wolk the morphine that caused Michael Wolk's death, then his back-door use of the death-evidence was improper. Further, any lawyer, especially prosecutors, whose jobs are, as we have discussed, to seek justice and not merely convictions, should never promise in their opening statements to prove something unless they are certain that the evidence is both available and admissible. Trial judges, as impartial arbiters of justice, must ensure that this is done, and use appropriate judicial power if it is not. Additionally, institutional law offices, such as the district attorney's office, have a special responsibility to ensure that the lawyers they send into court follow the simple rules of evidence, ethics, and fairness. Sadly, none of this was done here.

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

       Because of our disposition of this first issue, it is not necessary for us to address the remaining arguments. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663 (1938) (only dispositive issues need be addressed).

        Miranda v. Arizona, 384 U.S. 436 (1966).

       The transcript notes that the report was introduced into evidence as an exhibit. However, no exhibits are in the record.

        State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965).

       This is contrary to the State's earlier position in opening statements that the State was not suggesting that the morphine that killed Wolk was the same morphine delivered by Bannister.

       The judgment reflects that $4007 is owed for restitution; however, the transcript for the sentencing hearing indicates $4700. In light of the reversal, any money that Bannister has paid towards restitution should be returned to him.

       This is the most specific testimony that the officer gave regarding the number of visits of the two men. At other times the officer stated that Bannister told him that he delivered morphine to either Steven or Michael Wolk eight to ten times, about every third day within the thirty-four-day span.

       This is not to equate diabetes with morphine addiction. The comparison was used only to explain that people who regularly take medications can be expected to test positive for those drugs.

       According to the Wikipedia online encyclopedia: "The term 'bloody shirt' can be traced back to the aftermath of the murder of the third Caliph, Uthman in 656 CE, when a bloody shirt and some hair alleged to be from his beard were used in what is widely regarded as a cynical ploy to gain support for revenge against opponents." Wikipedia, http://en.wikipedia.org/ wiki/Bloody_shirt.

       Most likely the trial court said "witness" but this was mistranscribed as "reference."


author: FINE, J.

text:
    B&D Contractors, Inc., Plaintiff-Appellant, v. Arwin Window Systems, Inc. and Graham Architectural Products Corp., Defendants, Transcontinental Insurance Company, Defendant-Respondent.
    Court of Appeals

      No. 2005AP2157.

      Submitted on briefs April 6, 2006.

      —Decided May 23, 2006.

    2006 WI App 123
    (Also reported in 718 N.W.2d 256.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Kimberly A. Hurtado and Francisco J. Vasquez of Hurtado, S.C., of Wauwatosa.
    On behalf of the defendant-respondent, the cause was submitted on the briefs of David J. Farley and Patrick D. McNally of Borgelt, Powell, Peterson & Frauen, S.C., of Milwaukee.
    Before Wedemeyer, PJ., Fine and Curley, JJ.
   FINE, J.

¶ 1. B&D Contractors, Inc., appeals the trial court's grant of summary judgment dismissing its claim against Transcontinental Insurance Company. Transcontinental Insurance provided Commercial-General-Liability coverage to Graham Architectural Products Corp. B&D sued Graham and Arwin Window Systems, Inc., in connection with a building-renovation project for which B&D was a subcontractor. Arwin Window Systems designed the replacement windows. Graham made the window frames, and had Commercial-General-Liability coverage from Transcontinental. Ar-win assembled the frames with glass supplied by someone else. B & D's third amended complaint alleged that Arwin and Graham gave B & D defective windows. B & D's third amended complaint also asserted that the Transcontinental policy covered Graham in connection with the windows. Transcontinental Insurance denied this, and it and B & D cross moved for summary judgment on the coverage issue. The trial court granted Transcontinental's motion and dismissed it from the case. We affirm.

¶ 2. Our review of a trial court's grant of summary judgment is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-317, 401 N.W.2d 816, 820-821 (1987). Whether the Commercial-General-Liability policy issued by Transcontinental Insurance to Graham Architectural Products gives Graham coverage is also a question of law that we review de novo. See Mullen v. Walczak, 2003 WI 75, ¶ 12, 262 Wis. 2d 708, 713, 664 N.W.2d 76, 79.

¶ 3. The facts underlying this appeal are not disputed. The windows failed because the frames were not strong enough to hold the heavy glass. This caused the frames to bend and some of them to break their glass. As a result, the Arwin/Graham windows, including those that had not yet failed, were removed, and new ones were installed.

¶ 4. Neither B & D nor Graham disputes that there would be coverage under Graham's Commercial-General-Liability policy unless an exclusion removed coverage. As material to this appeal, Transcontinental's policy provides:

This insurance does not apply to:
k. "Property damage" to "your product" arising out of it, or any part of it except when caused by or resulting from:
(1) Fire;
(2) Smoke;
(3) Collapse; or
(4) Explosion.
n. Recall Of Products, Work Or Impaired Property
Damages claimed for any loss, cost or expense incurred by you or others for the loss of use, withdrawal, recall, inspection, repair, replacement, adjustment, removal or disposal of:
(1) "Your product";
(2) 'Your work"; or
(3) "Impaired property";
if such product, work, or property is withdrawn or recalled from the market or from use by any person or organization because of a known or suspected defect, deficiency, inadequacy or dangerous condition in it.

(Footnotes added.) The trial court held that the Graham-fabricated window frames were "recalled," as that term is used in Exclusion n., and, accordingly, there was no coverage. Although the parties debate whether a "recall" can encompass removal and replacement of alleged defective components under the circumstances here, see, e.g., Paper Mach. Corp. v. Nelson Foundry Co., 108 Wis. 2d 614, 620-622, 323 N.W.2d 160, 163-164 (Ct. App. 1982) (withdrawal of product must be from "market" in anticipation that the product will fail, and not merely the replacement of the product after it has failed), we conclude on our de novo review that coverage under Graham's Commercial-General-Liability policy is removed by Exclusion k. Thus, we do not discuss Exclusion n. See Gross v. Hoffman, 221 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed).

¶ 5. The risk insured by a Commercial-General-Liability policy " 'is the possibility that the goods, products or work of the insured, once relinquished or completed, will cause bodily injury or damage to property other than to the product or completed work itself, and for which the insured may be found liable,'" and not " 'to make good on products or work which is defective.'" Bulen v. West Bend Mut. Ins. Co., 125 Wis. 2d 259, 264-265, 371 N.W.2d 392, 394 (Ct. App. 1985) (quoted source omitted). Thus, costs flowing from, or caused by, the repair or replacement of an insured's defective product are not covered by the Commercial-General-Liability policy. Vogel v. Russo, 2000 WI 85, ¶¶ 17-28, 236 Wis. 2d 504, 512-518, 613 N.W.2d 177, 182-185, overruled in part on other grounds by Insurance Co. of N. Am. v. Cease Elec., Inc., 2004 WI 139, ¶ 25 n.6, 276 Wis. 2d 361, 372 n.6, 688 N.W.2d 462, 468 n.6; Jacob v. Russo Builders, 224 Wis. 2d 436, 447-450, 592 N.W.2d 271, 275-277 (Ct. App. 1999); St. John's Home of Milwaukee v. Continental Cos. Co., 147 Wis. 2d 764, 788-789, 434 N.W.2d 112, 122 (Ct. App. 1988). B & D Contractors does not argue otherwise. Rather, it contends that because the window frames' deflection either broke the window glass or threatened to do so, the frames "collapsed" as that term is used in the exception to Exclusion k., and thus the Exclusion does not apply. We disagree.

¶ 6. "Insurance policies, like other contracts, are construed to ascertain and effectuate the parties' intent. Thus, a clear contractual provision must be construed as it stands. Ambiguities, however, are construed against the party who drafted the contract." United States Fire Ins. Co. v. Ace Baking Co., 164 Wis. 2d 499, 502-503, 476 N.W.2d 280, 282 (Ct. App. 1991) (internal citations omitted). As we have seen, Exclusion k. excludes from coverage " 'Property damage' to 'your product' arising out of it, or any part of it except when caused by or resulting from ... [c]ollapse." Thus, one of two things must happen before a "collapse" removes Exclusion k. from the policy: (1) the "[p]roperty damage" to the "your product" for which an insurance-recovery is sought must be "caused by" the "collapse"; or (2) the "[p]roperty damage" to the "your product" for which an insurance-recovery is sought must have "result[ed] from" the "collapse."

¶ 7. In connection with number (1), damage to the Arwin/Graham windows was not caused by a collapse; rather, the "collapse" (assuming, without deciding, that frame-deflection is a "collapse") was triggered by the frames' alleged defects. Similarly, in connection with number (2), the damage to the Arwin/Graham windows did not "result[] from" the "collapse"; rather, the frames' deflection resulted in, and not from collapse-damage (again, assuming, without deciding, that the frames' deflection is a "collapse") to the Arwin/Graham windows. Stated another way in connection with both (1) and (2), taking as true B & D's allegations about the defects in the Arwin/Graham windows, the frames were defective for their intended use before they were installed; the defects were neither "caused by" nor "result[ed] from" any "collapse." Accordingly, Exclusion k. applies, and there is no coverage under Transcontinental's Commercial-General-Liability policy issued to Graham. We affirm.

By the Court. — Order affirmed.

       The scope of Exclusion k., as quoted in the main body of • this opinion, was amended by an endorsement to read as we have quoted it.

       The policy recites:
      20. 'Your product" means:
      a. Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by:
      (1) You;

        (2) Others trading under your name; or
      (3) A person or organization whose business or assets you have acquired; and
      b. Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products.
      'Your product" includes:
      a. Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of "your product"; and
      b. The providing of or failure to provide warnings or instructions.
      Your product" does not include vending machines or other property rented to or located for the use of others but not sold.
      21. Your work" means:
      a. Work or operations performed by you or on your behalf; and
      b. Materials, parts or equipment furnished in connection with such work or operations.
      Your work" includes:
      a. Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of "your work"; and
      b. The providing of or failure to provide warnings or instructions.

       B & D Contractors contends that Transcontinental Insurance waived reliance on Exclusion k., asserting that Transcontinental Insurance did not argue the exclusion to the trial court. We disagree.
      First, although the trial court did not base its decision granting summary judgment to Transcontinental Insurance on Exclusion k. (and, in light of its decision that Exclusion n. applied, did not have to, see Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663, 665 (1938) (only dispositive issue need be addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground")), Transcontinental did argue that Exclusion k. also applied, and the trial court referred to that argument in its oral decision. Moreover, as we have already seen, our review of a trial court's grant or denial of a motion for summary judgment is de novo, and, further, we may affirm the trial court on any ground, whether argued or not. State v. Truax, 151 Wis. 2d 354, 359, 444 N.W.2d 432, 435 (Ct. App. 1989). Additionally, contrary to B & D's contention, a party that prevails in the trial court need not file a cross-appeal to preserve for review an alternative ground to affirm. See State v. Alles, 106 Wis. 2d 368, 391, 316 N.W.2d 378, 388 (1982).


author: PETERSON, J.

text:
    Wendy S. DeHart and Gary C. DeHart, Plaintiffs-Appellants, v. Wisconsin Mutual Insurance Company, Defendant-Respondent, Medical Benefits Administrators, Subrogated Defendant.
    Court of Appeals

      No. 2005AP2962-FT.

      Submitted, on briefs March 13, 2006.

      —Decided May 23, 2006.

    2006 WI App 129
    (Also reported in 719 N.W.2d 518.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Christine Bremer-Muggli and Lance Trollop of The Law Office of Christine Bremer & Associates, S.C., Wausau.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Randall Skiles, Madison.

      Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review granted 9-21-06.

   PETERSON, J.

¶ 1. Wendy and Gary DeHart appeal a summary judgment concluding their Wisconsin Mutual Insurance Company automobile policy did not provide uninsured motorist coverage for Wendy's accident. They argue that the unidentified motor vehicle that struck another vehicle and forced Wendy's vehicle off the road is an "unidentified motor vehicle involved in a hit-and-run accident," pursuant to Wis. Stat. § 632.32(4)(a)2.b., and therefore the statute mandates coverage. We agree, reverse the judgment and remand for further proceedings.

BACKGROUND

¶ 2. On December 6, 2000, Wendy was involved in an automobile accident on a two-lane road. Wendy's vehicle was following vehicles driven by Donna Brewer and Charlotte Ellwitz. An unidentified vehicle traveling in the opposite direction crossed the center line and traveled toward Brewer's vehicle. The DeHarts contend the unidentified vehicle struck Brewer's vehicle; Wisconsin Mutual asserts it did not. The unidentified vehicle continued in the oncoming traffic toward Ellwitz's vehicle, causing her to pull over and nearly stop, and toward Wendy's vehicle, forcing her off the roadway. The unidentified vehicle left the scene.

¶ 3. The DeHarts commenced this case against their insurer, Wisconsin Mutual, seeking uninsured motorist benefits for the damage caused by the unidentified vehicle. Wisconsin Mutual moved for summary judgment, contending there was no coverage. It acknowledged that there were competing facts regarding how the accident transpired but contended that, because it was uncontested that no vehicle struck the DeHart vehicle, there was no coverage. The circuit court granted summary judgment in Wisconsin Mutual's favor.

STANDARD OF REVIEW

¶ 4. We review a summary judgment independently, using the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). We view the facts in the light most favorable to the nonmoving party. State Bank of La Crosse v. Elsen, 128 Wis. 2d 508, 511-12, 383 N.W.2d 916 (Ct. App. 1986). The only issue on appeal also involves the interpretation of a statute, which presents a question of law that we review independently. Smith v. General Cas. Ins. Co., 2000 WI 127, ¶ 7, 239 Wis. 2d 646, 619 N.W.2d 882.

DISCUSSION

¶ 5. Wisconsin Stat. § 632.32(4)(a) mandates that motor vehicle insurance policies include uninsured motorist coverage. The statute defines uninsured motor vehicle to include "[a]n unidentified motor vehicle involved in a hit-and-run accident." Wis. Stat. § 632.32(4)(a)2.b. Wisconsin courts have consistently concluded the term "hit-and-run" is unambiguous and includes a physical contact element. See, e.g., Progressive N. Ins. Co. v. Romanshek, 2005 WI 67, ¶ 31, 281 Wis. 2d 300, 697 N.W.2d 417. Thus, the statute does not mandate coverage for miss-and-run accidents, where an unidentified vehicle does not make contact with another vehicle.

¶ 6. The parties here disagree whether the facts satisfy the physical contact element for uninsured motorist coverage under Wis. Stat. § 632.32(4)(a)2.b. Wisconsin Mutual contends the physical contact must be with the insured vehicle, relying primarily on Roman-shek. It argues that because it is uncontested that there was no contact with the DeHart vehicle, the physical contact requirement is not satisfied. The DeHarts, on the other hand, argue that the statute's physical contact element can be satisfied by contact between the unidentified vehicle and Brewer's vehicle, relying primarily on Smith. Whether contact occurred between the unidentified vehicle and Brewer's vehicle is therefore a disputed issue of material fact that makes summary judgment inappropriate.

¶ 7. Romanshek reaffirmed Wisconsin's "long line of precedent requiring physical contact in an accident involving an unknown vehicle in order for there to be a 'hit-and-run'" under Wis. Stat. § 632.32(4)(a)2.b. Ro-manshek, 281 Wis. 2d 300, ¶ 1. Romanshek involved a two-vehicle accident in which there was no contact between the unidentified vehicle and the insured vehicle. Id., ¶ 3. The insured, Romanshek, argued Wisconsin's physical contact requirement had been eroded to the point of being meaningless and should be eliminated. Romanshek urged the court to adopt other jurisdictions' interpretation that a hit-and-run did not require physical contact.

¶ 8. The Romanshek court undertook an exhaustive review of prior decisions and concluded the physical contact requirement had not been eroded. Id., ¶¶ 35, 39. The court declined to adopt other jurisdictions' interpretation of "hit-and-run," in part because those other jurisdictions impose different duties upon motorists to stop and render aid. Other jurisdictions require a motorist to stop when involved in an accident, whereas Wisconsin's duty, articulated in Wis. Stat. § 346.67, requires a motorist to stop upon striking a vehicle. See id., ¶ 49 (citing Hayne v. Progressive N. Ins. Co., 115 Wis. 2d 68, 75, 339 N.W.2d 588 (1983)). Section 346.67's reference to striking supports an interpretation of "hit-and-run" in Wis. Stat. § 632.32(4)(a)2.b. that includes physical contact.

¶ 9. Because there was no contact and because the court concluded physical contact was required for a "hit-and-run," Romanshek held there was no statutorily-mandated uninsured motorist coverage. However, Romanshek involved a two-car accident, where any contact that occurred would necessarily be between the insured vehicle and the unidentified vehicle. Thus, the Romanshek court did not analyze whether physical contact must be with the insured vehicle, and Wisconsin Mutual's reliance on Romanshek for the proposition that a hit-and-run requires contact with the insured vehicle is misplaced.

¶ 10. The accident in Smith was a chain reaction collision involving three vehicles traveling parallel to each other on a three-lane highway. Smith, 239 Wis. 2d 646, ¶ 2. The unidentified vehicle was traveling in the left lane, swerved into the center lane, and struck a vehicle traveling in the center lane. The vehicle in the center lane then struck the vehicle driven by the insured, Smith, who was traveling in the right lane. Id., ¶ 3.

¶ 11. The issue in Smith was whether the physical contact element was satisfied when there was no contact between the unidentified vehicle and the insured vehicle. The Smith court noted that Wis. Stat. § 632.32(4)(a)2.b. defined uninsured vehicle to include an unidentified vehicle "involved in a hit and run accident." Id., ¶ 12. The court reasoned:

The use of the word "involved" does not strike us as a word that should be narrowly applied only to a hit-and-run accident involving a direct hit to the insured vehicle. Here, the unidentified vehicle was clearly "involved": it precipitated the accident through contact with the intermediate vehicle.

Id. The court concluded § 632.32(4) mandated coverage, despite the absence of contact between the unidentified vehicle and the insured vehicle. Id., ¶ 13.

¶ 12. Wisconsin Mutual argues Smith is distinguishable. It contends the holding hinged on there being two collisions: one between the unidentified vehicle and the intermediate vehicle and a second collision between the intermediate vehicle and the insured vehicle. Therefore, Wisconsin Mutual argues, there was physical contact with the insured vehicle and nothing in Smith eliminates that requirement.

¶ 13. We agree that Smith is not precisely on point with the facts as alleged by the DeHarts, but its reasoning is nonetheless instructive. Wisconsin Mutual's arguments distinguishing Smith depend on its assertion that Wis. Stat. § 632.32(4)(a)2.b. requires physical contact with the insured vehicle. However, § 632.32(4)(a)2.b. mandates coverage for "[a]n unidentified motor vehicle involved in a hit-and-run accident." As the Smith court explained, "[a] hit-and-run occurs when three elements are satisfied: (1) there is an unidentified motor vehicle; (2) the unidentified vehicle is involved in a hit; and (3) the unidentified motor vehicle 'runs' from the scene of the accident." Smith, 239 Wis. 2d 646, ¶ 10 (emphasis added). The focus of the physical contact requirement is not the insured vehicle, as Wisconsin Mutual argues. Rather the language of the statute and the reasoning of Smith focus on contact by the unidentified vehicle. Cf. Wegner v. Heritage Mut. Ins. Co., 173 Wis. 2d 118, 127, 496 N.W.2d 140 (Ct. App. 1992) (no statutory uninsured coverage where contact between intermediate vehicle and insured but no contact between unidentified vehicle and any other vehicle).

¶ 14. The DeHarts allege there was contact between the unidentified vehicle and the Brewer vehicle. If so, the three elements of a hit-and-run are met: (1) there was an unidentified vehicle; (2) the unidentified vehicle was involved in a hit with the Brewer vehicle; and (3) the unidentified vehicle ran from the scene of the accident. Accordingly, the physical contact requirement can be satisfied by a hit between the unidentified vehicle and the Brewer vehicle.

¶ 15. The DeHarts argue, and we agree, that reading Wis. Stat. § 632.32(4)(a)2.b. to mandate coverage where the unidentified vehicle made contact with the Brewer vehicle is also supported by the public policy factors considered by the Smith court. One public policy factor is preventing fraud. Smith, 239 Wis. 2d 646, ¶ 25. The physical contact requirement prevents an insured from making a fraudulent claim for uninsured motorist coverage by alleging an accident of the insured's own making was caused by an unidentified vehicle that fled the scene. Id. Wisconsin Mutual frames this public policy factor as avoiding turning run-of-the-mill loss of control cases into uninsured motorist cases. However, here there is no allegation of fraud by the DeHarts. Additionally, if the unidentified vehicle made contact with the Brewer vehicle, this is not a single vehicle accident arising solely from Wendy's loss of control of her vehicle. If the unidentified vehicle made contact, albeit with the Brewer vehicle, concern about a fraudulent claim is eliminated.

¶ 16. We also agree with the DeHarts that coverage is supported by the public policy of compensating an injured person who is the victim of an uninsured motorist's negligence to the same extent as if the uninsured motorist was insured. See id., ¶ 26. Our conclusion that coverage applies if there was contact between the unidentified vehicle and the Brewer vehicle allows the DeHarts to recover their damages to the same extent as if the driver whose negligence started the chain of events was identified and insured.

¶ 17. Because we conclude that uninsured motorist coverage is mandated under the circumstances as alleged by the DeHarts, a genuine issue of material fact remains as to whether the unidentified vehicle made physical contact with the Brewer vehicle. Therefore, summary judgment is inappropriate.

By the Court. — Judgment reversed and cause remanded for further proceedings.

       This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Wisconsin Mutual spends portions of its brief essentially arguing that the DeHarts cannot prove that contact occurred between the Brewer vehicle and the unidentified vehicle. However, on summary judgment we do not resolve questions of fact, merely determine whether a factual issue exists. State Bank of La Crosse v. Elsen, 128 Wis. 2d 508, 511-12, 383 N.W.2d 916 (Ct. App. 1986).
      Wisconsin Mutual also argues the insurance policy's physical contact requirement is not satisfied by the contact as alleged by the DeHarts. However, the DeHarts' only argument is that coverage is mandated by statute. Where Wis. Stat. § 632.32 requires coverage, we need not examine the insurance policy. See Theis v. Midwest Sec. Ins. Co., 2000 WI 15, ¶ 10, 232 Wis. 2d 749, 606 N.W.2d 162. Therefore, Wisconsin Mutual's contractual arguments are unpersuasive.