author: DEININGER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Robert L. Snider, Defendant-Appellants.

    Court of Appeals

      No. 02-1628-CR.

      Submitted on briefs March 10, 2003.

      Decided July 24, 2003.

    2003 WI App 172
    (Also reported in 668 N.W.2d 784.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Timothy J. Gaskell of Hanson & Gaskell, Westby.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sandra L. Nowack, assistant attorney general, and Peggy A. Lautenschlager, attorney general.

      Before Vergeront, EJ., Roggensack and Deininger, JJ.

       Petition to review denied 10-1-03.

   DEININGER, J.

¶ 1. Robert Snider appeals a judgment convicting him of first-degree sexual assault of a child. He also appeals an order denying postconviction relief. The issues are (1) whether Wis. Stat. § 908.08 (2001-02) precludes a trial court from admitting a child-victim's videotaped statement under the residual hearsay exception; (2) whether Snider's counsel rendered ineffective assistance by not requesting an instruction on a mistake defense; and (3) whether Snider's counsel rendered ineffective assistance by eliciting testimony that a detective believed the victim and not Snider when interviewing them.

¶ 2. We conclude that Wis. Stat. § 908.08 does not preclude the admission of videotaped statements of children via other hearsay exceptions, and that the trial court did not erroneously exercise its discretion in admitting the videotaped statement in this case. We also conclude that neither trial counsel's decision to forgo a mistake defense' nor her questioning of the detective constituted deficient performance. Accordingly, we affirm the appealed judgment and order.

BACKGROUND

¶ 3. On the morning after the alleged assault, the victim told her school guidance counselor that she had been molested. The counselor called the Monroe County Department of Human Services and reported the alleged assault to a social worker. The social worker in turn contacted a police detective. The social worker conducted an investigative interview with the victim while the detective videotaped the interview. During the interview, the victim recounted Snider's actions of the previous night in some detail. She said that he had lifted her from a couch where she was sleeping, placed her on the floor and lain behind her. According to the victim, Snider then moved his hand inside her underwear and touched her vagina and later pressed his unclothed penis against her buttocks.

¶ 4. The detective also interviewed Snider that same day. During the interview and when he testified at trial, Snider corroborated parts of the victim's account of what had happened the night before. For example, Snider said he had awakened lying next to the victim on the floor with his arm around the victim's waist but claimed that he initially thought it was the victim's mother next to whom he was lying. He denied that he had touched the girl's vaginal area, claiming that his hand went no lower than "the belly button area." Snider also testified that he was fully clothed at the time and had not had an erection.

¶ 5. The State did not plan to introduce the videotaped interview at trial, but the defense had procured a transcript of it and planned to use the transcript for cross-examination and impeachment purposes. The victim's trial testimony was significantly less detailed than the account she gave during the videotaped interview. Despite leading questions from the prosecution, the victim left out some of the alleged touching she had described during the taped interview. After the victim's trial testimony, the State requested the court to allow it to play the videotape for the jury under the residual hearsay exception. The defense objected, arguing that Wis. Stat. § 908.08 governs the admissibility of the videotaped interview and that the requirements of the statute had not been met.

¶ 6. The trial court concluded that Wis. Stat. § 908.08(7) allows admission of the statement under the residual hearsay exception. After reviewing the videotape, the trial court admitted the videotaped interview under that exception. The trial court also noted there was no unfair surprise to the defendant in admitting the statement because the defense had a copy of the videotape and had prepared a transcript of the interview for its own use at trial.

¶ 7. The jury found Snider guilty of one count of first-degree sexual assault, and the court entered a judgment of conviction and imposed sentence. Snider moved for postconviction relief, renewing his argument that the court should not have admitted the videotaped statement. He also claimed trial counsel was ineffective in failing to request a jury instruction for the defense of mistake and by improperly cross-examining the detective who investigated the case. Following a Machner hearing, the court denied the motion and Snider appeals.

ANALYSIS

¶ 8. Snider first claims error in the trial court's decision to admit the videotaped interview. Snider acknowledges that Wis. Stat. § 908.08 permits a court to admit videotaped statements of children but argues that the statute precludes their admission under other hearsay exceptions. Snider argues that because the legislature placed specific restrictions on the admission of videotaped statements of children, admitting them under other hearsay exceptions nullifies the legislative intent that they be admitted only as set forth in § 908.08. Snider notes that § 908.08(2) and (3) require, among other things, that ten days prior notice of the intent to use the tape be given and that the statement be made under oath or affirmation. The State does not dispute that these requirements were not met in this case.

¶ 9. The State contends, however, that the plain language of Wis. Stat. § 908.08(7) permits a court to admit a child's videotaped statement under any other hearsay exception that may apply to the statement. The State points out that, had the statement not been videotaped, the court would have been free to admit it under any hearsay exception.

¶ 10. Whether Wis. Stat. § 908.08 prohibits the admission of a child's videotaped statement that does not meet the requirements of § 908.08(2) and (3) requires us to interpret and apply § 908.08 to the facts before us, which presents a question of law that we decide de novo. See State v. Dean, 163 Wis. 2d 503, 510, 471 N.W.2d 310 (Ct. App. 1991). The goal in statutory interpretation is to determine the intent of the legislature. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506 (1997). If the plain language of a statute unambiguously sets forth the legislative intent, we do not look beyond that language to ascertain the statute's meaning. See id.

¶ 11. We thus begin by examining the language of the statute:

(1) In any criminal trial or hearing, juvenile fact-finding hearing under s. 48.31 or 938.31 or revocation hearing under . . . s. 304.06(3) or 973.10(2), the court or hearing examiner may admit into evidence the videotaped oral statement of a child who is available to testify, as provided in this section.
(2) (a) Not less than 10 days prior to the trial or hearing, or such later time as the court or hearing examiner permits upon cause shown, the party offering the statement shall file with the court or hearing officer an offer of proof showing the caption of the case, the name and present age of the child who has given the statement, the date, time and place of the statement and the name and business address of the videotape camera operator. That party shall give notice of the offer of proof to all other parties, including notice of reasonable opportunity for them to view the videotape prior to the hearing under par. (b).
(b) Prior to the trial or hearing in which the statement is offered and upon notice to all parties, the court or hearing examiner shall conduct a hearing on the statement's admissibility. At or prior to the hearing, the court shall view the videotape. At the hearing, the court or hearing examiner shall rule on objections to the statement's admissibility in whole or in part. If the trial is to be tried by a jury, the court shall enter an order for editing as provided in s. 885.44(12).
(3) The court or hearing examiner shall admit the videotape statement upon finding all of the following:
(a) That the trial or hearing in which the videotape statement is offered will commence:
1. Before the child's 12th birthday; or
2. Before the child's 16th birthday and the interests of justice warrant its admission under sub. (4).
(b) That the videotape is accurate and free from excision, alteration and visual or audio distortion.
(c) That the child's statement was made upon oath or affirmation or, if the child's developmental level is inappropriate for the administration of an oath or affirmation in the usual form, upon the child's understanding that false statements are punishable and of the importance of telling the truth.
(d) That the time, content and circumstances of the statement provide indicia of its trustworthiness.
(e) That admission of the statement will not unfairly surprise any party or deprive any party of a fair opportunity to meet allegations made in the statement.
(7) At a trial or hearing under sub. (1), a court or a hearing examiner may also admit into evidence a videotape oral statement of a child that is hearsay and is admissible under this chapter as an exception to the hearsay rule:

Wis. Stat. § 908.08.

¶ 12. We agree with the State that the plain language of Wis. Stat. § 908.08(7) permits the admission of a child's videotaped statement under any applicable hearsay exception regardless of whether the requirements of subsections (2) and (3) have been met. Section 908.08(1) permits the admission of a "videotaped oral statement of a child who is available to testify, as provided in this section." (Emphasis added.) The remaining subsections of the statute provide two ways for the statement to be admitted "as provided in this section." The first is by meeting the various requirements set forth in subsections (2) and (3). If these requirements are met, the court "shall admit the videotape statement," § 908.08(3), and it need not consider any other grounds for admitting the statement. Alternatively, a court "may also admit into evidence a videotape oral statement of a child that is hearsay and is admissible under this chapter as an exception the hearsay rule." Section 908.08(7) (emphasis added). This language can only be read to mean that, if a child's videotape statement is admissible under one of the hearsay exceptions set forth in Wis. Stat. § 908.03, the requirements listed in the preceding subsections of § 908.08 are inapplicable.

¶ 13. The legislature's purpose in enacting Wis. Stat. § 908.08 was to make it easier, not harder, to employ videotaped statements of children in criminal trials and related hearings. Without § 908.08, a child's videotape statement, like any other out-of-court statement offered for its truth, would have to come within an exception to the hearsay rule to be admitted into evidence at a criminal trial. By enacting the alternative procedure set forth in § 908.08(2) and (3) for admitting videotaped statements of children, the legislature has provided a way for these statements to be admitted even when no other hearsay exception applies, and even if the statement is produced in preparation for trial as an express means of avoiding having a child give direct testimony at trial. (See footnote 6.)

¶ 14. Snider, however, points to our comment in State v. Williquette, 180 Wis. 2d 589, 603, 510 N.W2d 708 (Ct. App. 1993), aff'd, 190 Wis. 2d 677, 526 N.W.2d 144 (1995), that the purpose of Wis. Stat. § 908.08 is "to permit the evidentiary use of videotapes of children if a variety of safeguards are followed." Id. at 603. We concluded in Williquette that the trial court had not erred by failing to exclude sua sponte a child's videotaped statement proffered by the defense when the State did not object to its admission. Id. at 603-04. We observed, however, that had the State attempted to introduce the videotape and the defense objected under § 908.08, "the tape probably would not have been shown to the jury." Id. at 603.

¶ 15. Snider argues that the present facts are the same as the hypothetical we posed in Williquette, and that we must therefore similarly conclude that because the "safeguards" of Wis. Stat. § 908.08 were not met, the trial court should not have admitted the videotaped statement. We disagree. First, we did not consider in Williquette whether the videotape could have been admitted under one or more of the hearsay exceptions set forth in Wis. Stat. § 908.03. That question was simply not before us. Moreover, our qualified comment that the tape in Williquette "probably would not have been" admitted over a defense objection was many steps removed from our actual holding in the case. Finally, our present conclusion that a child's videotaped statement is admissible if it comes within a hearsay exception is fully consistent with the requirement for "safeguards" noted in Williquette. As we have explained, § 908.08 recognizes two ways for a court to ensure that a videotaped statement is sufficiently trustworthy to be admitted into evidence: by requiring the proponent of the statement to comply with § 908.08(2) and (3), or by requiring the proponent to show that the statement comes within a hearsay exception.

¶ 16. In summary, we conclude that Wis. Stat. § 908.08(7) permits a trial court to admit a child's videotaped statement under a hearsay exception without requiring compliance with § 908.08(2) and (3). We next briefly consider whether the trial court properly did so in this case. Our consideration is brief because Snider does not argue on appeal that the court erroneously exercised its discretion in admitting the taped statement under Wis. Stat.§ 908.03(24), the "residual" hearsay exception. We will not disturb a trial court's discretionary ruling if the trial court applied accepted legal standards to the facts of record and we can discern a reasonable basis for its ruling. See State v. Huntington, 216 Wis. 2d 671, 680-81, 575 N.W2d 268 (1998). We conclude the trial court did not erroneously exercise its discretion in determining that the statement possessed "circumstantial guarantees of trustworthiness" comparable to those of the enumerated hearsay exceptions. See § 908.03(24) (quoted at footnote 2).

¶ 17. After reviewing the videotape, the trial court considered the factors enumerated in State v. Sorenson, 143 Wis. 2d 226, 245-46, 421 N.W.2d 77 (1988), and Huntington, 216 Wis. 2d at 687-88. These* factors include the child's age, ability to communicate and familial relationship with the defendant; the person to whom the statement was made and that person's relationship to the child; the circumstances under which the statement was made, including the time elapsed since the alleged assault; the content of the statement itself, including any signs of deceit or falsity; and the existence of other corroborating evidence. So-renson, 143 Wis. 2d at 245-46. The factors are not intended to be "exclusive areas of inquiry," and each case should be examined in light of its particular circumstances. Id. at 244-45.

¶ 18. In applying the Sorenson factors to the videotaped statement, the trial court noted that the victim was ten years old at the time the statement was made and that her statements did not appear to be the product of adult manipulation because she demonstrated knowledge appropriate to her age and did not want to talk about certain areas of the male or female body. The court also noted the victim thought of Snider as an uncle and was concerned about whether he would see the video. Finally, the trial court concluded there were no signs of deceit or falsity on the video, and that the videotaped statement was consistent with the statement the victim had made to the guidance counselor five hours earlier, and in many details, with the statement subsequently given to the detective by Snider himself.

¶ 19. We conclude the trial court applied the correct legal standard to the facts of record and articulated a reasonable basis for its decision to admit the statement under the residual hearsay exception. See Huntington, 216 Wis. 2d at 680-81. Accordingly, we conclude the trial court did not erroneously exercise its discretion in admitting the videotape.

¶ 20. Snider next claims he was deprived of his Sixth Amendment right to the effective assistance of counsel. To sustain an ineffective assistance of counsel claim, a defendant must show that his trial counsel's performance was deficient and that this performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Whether a defendant received ineffective assistance of counsel is a mixed question of law and fact. See State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W2d 711 (1985). We will not reverse the trial court's factual findings regarding counsel's actions unless they are clearly erroneous. See id. at 634. Whether counsel's performance was deficient and whether it prejudiced the defendant are questions of law we decide de novo. See id. In evaluating Snider's claim, this court can choose to address either the "deficient performance" or the "prejudice" component first. Strickland, 466 U.S. at 697. If Snider's claim fails on either component, we need not address the other. See id.

¶ 21. Snider cites two deficiencies in his counsel's performance: counsel's failure to request an instruction on the defense of mistake, and her elicitation of allegedly prejudicial testimony from a police witness. To show deficient performance, Snider must identify acts or omissions of his trial counsel that were not the result of reasonable professional judgment. See id. at 690. Because Snider's right under the Sixth Amendment is to a competent lawyer, not to the best lawyer, he must show that counsel's acts or omissions were outside the broad range of professionally competent assistance. See id. To succeed on his claim, Snider must overcome the strong presumption that his trial counsel employed reasonable professional judgment in making all significant decisions. See id.

¶ 22. Generally, trial strategy decisions reasonably based in law and fact do not constitute ineffective assistance of counsel. See State v. Hubanks, 173 Wis. 2d 1, 28, 496 N.W2d 96 (Ct. App. 1992). Defense counsel may select a particular defense from available alternative defenses and is not required to present the jury with alternatives inconsistent with the chosen defense. Id. Even if, in hindsight, selecting a particular defense appears to have been unwise, counsel's decision does not constitute deficient performance if it was reasonably founded on the facts and law under the circumstances existing at the time the decision was made. See id.

¶ 23. Snider notes that he consistently claimed before and at trial that he initially believed he was touching the victim's adult mother, and he thus contends counsel should have requested a mistake instruction. Trial counsel testified at the Machner hearing that the defense's theory of the case was that Snider "had not touched the girl... on the pubic mound." Counsel testified that she remembered, albeit "vaguely," that she had discussed a mistake defense with her co-counsel, but concluded it would conflict with the defense that Snider never touched the victim in a prohibited place. Specifically, counsel reasoned that there would be inconsistency and "possible confusion for the jury of pursuing both the defense of he never touched her in the pubic mound area. And also, if he did touch her, it was a mistake." She explained that, in her view, "it didn't happen and it was a mistake are two different defenses. We chose one."

¶ 24. We conclude trial counsel's performance was not deficient for not requesting an instruction on the defense of mistake. Counsel's explanation that she did not want to risk confusing the jury by arguing that her client did not touch the victim's pubic area, but if he did, it was because he thought it was the victim's mother, is both plausible and reasonable. Not only was there a risk of confusing the jury but a risk that the jury would find Snider's alternative exculpatory claims incredible. It was therefore an objectively reasonable strategy for trial counsel to choose not to pursue conflicting defenses. See Hubanks, 173 Wis. 2d at 28. The decision was a reasonable one based on the facts and circumstances existing at the time of trial and did not fall outside the broad range of professional norms. See Strickland, 466 U.S. at 697.

¶ 25. Snider also claims counsel performed defi-ciently when she repeatedly elicited testimony from the investigating detective that the detective believed the victim's statement and did not believe Snider's version of what had occurred. Snider claims trial counsel's action violated the general rule that witnesses cannot testify regarding whether another witness's testimony is truthful. See State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W2d 673 (Ct. App. 1984). Snider contends that by repeatedly asking the detective whether he believed Snider or the victim, knowing the detective would testify that he believed the victim, trial counsel violated the Haseltine rule and, in the process, damaged Snider's credibility.

¶ 26. At the Machner hearing, trial counsel testified that when questioning the detective she was attempting to undermine his credibility by showing he was biased against Snider from the very start of the investigation. Trial counsel testified that her purpose "was to try to show that the detective from the beginning was not open to what Mr. Snider had to say and came into his interview of Mr. Snider with a bias." Counsel explained (and the trial transcript bears out) that counsel's goal was to convince the jury that, when he questioned Snider, the detective was trying to "sell" Snider the victim's story rather than to ascertain Snider's version of what happened.

¶ 27. The State maintains that trial counsel's performance was not deficient because (1) the detective's testimony did not violate the Haseltine rule, and (2) eliciting the cited testimony was a reasonable trial strategy. We agree on both counts. Haseltine prohibits a witness from testifying that another witness is telling the truth at trial. Id. at 96. The Haseltine rule is intended to prevent witnesses from interfering with the jury's role as the " 'lie detector in the courtroom.'" Id. (citation omitted). We concluded in State v. Smith, 170 Wis. 2d 701, 718-19, 490 N.W.2d 40 (Ct. App. 1992), that there was no Haseltine violation when a detective testified that he thought the defendant " 'knew a lot more than he was telling me.'" The detective in Smith also testified that he did not believe the defendant's story so "he continued the interrogation until he got what he believed to be the truth." Id. at 718-19. Here, the detective similarly testified to what he believed at the time he was conducting the investigation, not whether Snider or the victim was telling the truth at trial. The detective, in response to questions on cross-examination, recounted how he conducted the interrogation and his thought processes at that time. As in Smith, his testimony did not violate the Haseltine rule.

¶ 28. We also conclude that trial counsel's questioning of the detective did not fall outside the range of professional norms. It permitted counsel to argue in closing that "[t]hey listened to one side of the story, and they tried to fit the evidence into that. And when Mr. Snider denied that he had done anything like touch [the victim] or her vaginal area or touch in her butt with his penis, the detective didn't believe him and kept trying to sell to him a story that it had happened." Counsel's attempt to discredit the investigating detective by showing that he came to a premature conclusion regarding what had occurred, and thereafter pursued a one-sided investigation, was a reasonable trial tactic and did not constitute deficient performance.

¶ 29. Because Snider has not demonstrated that his trial counsel performed deficiently, we do not address whether he suffered prejudice on account of counsel's cited actions or omissions. See Strickland, 466 U.S. at 697.

CONCLUSION

¶ 30. For the reasons discussed above, we affirm the judgment of conviction and order denying postcon-viction relief.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Wisconsin Stat. § 908.03(24) provides an exception to the rule against admitting hearsay for a "statement not specifically covered by any of the foregoing [hearsay] exceptions but having comparable circumstantial guarantees of trustworthiness."

       The provisions of Wis. Stat. § 908.08 relevant to this appeal are quoted below at ¶ 11 of this opinion.

       The State charged two counts of sexual contact in the information, but the jury found Snider guilty of only the vaginal touching. The State also charged Snider in a separate complaint with sexual assault and attempted sexual assault of a different child. The cases were consolidated for trial. The trial court dismissed one of the counts involving the other victim on a defense motion at the close of the State's case, and the jury found Snider not guilty of the remaining charge involving the other victim.

        See State v. Machner, 92 Wis. 2d 797, 285 N.W2d 905 (Ct. App. 1979).

        See 1985 Wis. Act 262, § 1 ("This act is intended to allow children to testify in criminal, juvenile and probation and parole revocation proceedings in a way which minimizes the mental and emotional strain of their participation in those proceedings -").

       In its response brief, the State noted the absence of such an argument and Snider filed no reply brief.

       The trial court noted that the statement, made less than twenty-four hours after the assault, might also be admissible under the "excited utterance" exception. See Wis. Stat. § 908.03(2). However, because the State did not attempt to admit the statement as an excited utterance, the trial court evaluated the videotaped statement only under § 908.03(24). Similarly, because the State does not attempt in this appeal to justify the admission of the taped statement as an excited utterance, we do not address that possibility in this opinion.

       Mistake is a defense to a crime if it negates the state of mind necessary for the crime. See Wis. Stat. § 939.43. To be guilty of sexual contact with the victim, Snider must have intentionally touched her. See Wis. Stat. § 948.01(5)(a). Snider contends that if the jury believed he thought he was touching the victim's adult mother, it would not have found that he intended to touch the victim.

       Even though we do not address the prejudice component, we note that counsel's decision to forgo a mistake defense in favor of Snider's denial of the allegations, and her effort to undermine the reliability of the State's investigation, were at least partially successful strategies in that the jury acquitted Snider on two of the three counts it was asked to decide.


source: Caselaw Access Project

author: HOOVER, PJ.

license: Public Domain

text:
    James M. Povolny and Deborah A. Povolny, Plaintiffs-Appellants, v. James B. Totzke, Dawn M. Totzke, Bremer Bank National Association, Fleet Mortgage Corporation, Town of Cady, and All Other Persons Concerned, Defendants-Respondents.
    Court of Appeals

      No. 02-3011.

      Submitted on briefs June 24, 2003.

    Decided July 29, 2003.

    2003 WI App 184
    (Also reported in 668 N.W.2d 834.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Thomas J. Basting, Jr., Jack Y Perry, and Briggs and Morgan, PA., of Minneapolis, Minnesota.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Catherine R. Munkittrick and Rodli, Beskar, Boles & Krueger, S.C., of River Falls.
    On behalf of defendant-respondent Town of Cady, the cause was submitted on the brief of Robert A. Parsons, Steven B. Goff, and Bye, Goff & Rohde, Ltd., of River Falls.
    Before Cane, C.J., Hoover, RJ., and Peterson, J.
   HOOVER, PJ.

¶ 1. James and Deborah Povolny appeal a judgment that held the town road, over which their easement by necessity crosses, had been abandoned. As a result of the judgment, the road is discontinued and therefore governed by the easement, which is limited to personal and agricultural uses. The Povol-nys contend that the road has been continuously used. Thus, it has not been entirely abandoned and cannot be deemed discontinued. We disagree and affirm the judgment.

Background

¶ 2. The Povolnys own a landlocked parcel that abuts James and Dawn Totzkes land. The Povolnys purchased their land in September 1998, shortly before the Totzkes purchased theirs. The Povolnys used a path that was once a town road to access their property. This path crosses the Totzkes' land, although the Povolnys and their predecessor in interest, Michael Haase, believed it was entirely on their land.

¶ 3. When the Totzkes purchased their parcel, the Town of Cady required they reserve a sixty-six-foot easement for access to the Povolny lot. The easement was recorded on the certified survey map without discussion of whom it was to benefit or for what purpose. The land subject to the easement includes the former town road.

¶ 4. The Povolnys planned to use their lot for various commercial activities, including a motor cross track. When the Totzkes objected, claiming the use was inappropriate under the easement, the Povolnys filed this action seeking a declaration that the easement locus was really an open town road and the Totzkes could not prevent the Povolnys from using it to access their property for any reason.

¶ 5. Following a trial to the court, the court concluded as both a factual and legal matter that the town road had been abandoned as of 1994. Because a five-year period had passed in which the town spent no money on the road, the court concluded that the road was discontinued as a route of travel under Wis. Stat. § 80.32(2). The court then construed the recorded easement, concluding that it was limited to personal and agricultural uses and effectively precluding the Povol-nys from using their lot for the commercial enterprises they had planned. The Povolnys appeal the portion of the judgment declaring that the road had been abandoned, but do not challenge the court's construction of the easement.

Standard of Review

¶ 6. The parties disagree as to the appropriate standard of review. We are faced with a mixed question of fact and law. The trial court made certain findings regarding the road's condition and use. These are factual findings that we leave undisturbed unless they are clearly erroneous. Wis. Stat. § 805.17(2). However, whether these facts fulfill the statutory requirements is a question of law we consider de novo. See Ide v. LIRC, 224 Wis. 2d 159, 166, 589 N.W.2d 363 (1999).

Discussion

¶ 7. Wisconsin Stat. § 80.32(2) states in relevant part that "any highway which shall have been entirely abandoned as a route of travel, and on which no highway funds have been expended for 5 years, shall be considered discontinued." The parties agree that no highway funds have been expended for five years. Thus, the only question for us to resolve is whether, as a matter of law, the road was entirely abandoned as a route of travel.

¶ 8. Wisconsin courts have previously interpreted the meaning of "entirely abandoned." Lange v. Tumm, 2000 WI App 160, ¶ 7, 237 Wis. 2d 752, 615 N.W.2d 187. In State ex rel. Young v. Maresch, 225 Wis. 225, 231-32, 273 N.W.2d 225 (1937), the supreme court explained that if a highway or road "was traveled by such of the public that had occasion to use it," that is sufficient to keep the roadway from being entirely abandoned. Lange, 237 Wis. 2d 752, ¶ 7. In other words, the "key inquiry is whether the highway has remained open to all who had occasion to use it." Id., ¶ 10.

¶ 9. The court here emphasized two factors in determining that the road had been entirely abandoned: The roadway was overgrown and difficult or impossible for vehicles to travel without damage and members of the public sought permission to use the road. The Povolnys contend it was error for the trial court to consider these factors. However, we believe these considerations underpin the "open to all" inquiry and that, by considering these two factors, the trial court implicitly and correctly applied the Lange standard.

Condition of the Roadway

¶ 10. We leave factual findings undisturbed as long as they are supported by the record. Dunn County v. Judy K., 2002 WI 87, ¶ 38, 254 Wis. 2d 383, 647 N.W2d 799. The trial court ultimately determined the roadway was impassible by vehicles. Supporting this, the court heard testimony from Haase, a hunter named Ed Swenson who had used the property prior to the Povolnys' purchase, and the Povolnys' neighboring landowner Jae Anderson.

¶ 11. Haase testified that at some point before the Povolnys purchased his land:

When I would inspect the property after the saplings had grown up to a point where it wasn't really. . . feasible to go through ... I would drive in on the road and get off the county road and then walk down [the town road]. . .. There was a[n] area that you could drive partially down....

Similarly, Anderson noted that the roadway is "grass in the middle, grass grown over lots of little trees."

¶ 12. Swenson testified that when he would hunt on the Povolny lot, he sometimes used the roadway to access the parcel. However, he noted, "we could drive down it to a point. . . there was a tree that had fell across the road, and we didn't remove it. We just stopped there."

¶ 13. The real estate agent showing the Povolnys the property in 1997 indicated he had been able to drive his car down the roadway, but noted it was weedy. Finally, the former Cady patrolman noted that in 1998, he went to clear the area as a,sort of favor to the Totzkes — the town would clear the easement since it had required the Totzkes to reserve the section. The patrolman stated that he had to remove brush and trees from the roadway before he could place crushed rock on the path.

¶ 14. The court also viewed a photograph of the roadway dated April 1997 by the camera's dating system. Although the Povolnys invited us to interpret this photograph ourselves, we believe it is simply a graphic reinforcement of the testimony provided, showing saplings growing in the easement proper.

¶ 15. From the evidence concerning the road's condition, the court concluded that it was not fit for vehicular travel. The Povolnys argue that vehicular traffic need not be the only traffic for the road to remain a route of travel. However, the inquiry is whether the road remained "open to all who had occasion to use it." The fact that at least Haase and Swenson testified that they would sometimes walk the route after driving part of it because they could not progress with their vehicles leads us to conclude that the road was not open as a matter of law because members of the vehicle-driving public that had occasion to use the road could not.

Permissive Use

¶ 16. The trial court also relied on the fact that some individuals sought permission to use the road. We note at the outset of this discussion that had any of the property owners purposely obstructed the roadway, this would be a more difficult inquiry. It is self-evident that a private landowner has no right to treat a public highway as his or her own private roadway so as to force abandonment. However, there is no evidence that this happened and, indeed, Haase indicated no one had ever been denied access on the roadway during the time he owned the property from 1982 to 1998.

¶ 17. The trial court heard testimony that individuals would seek permission to use the Povolny lot. Although this does not directly address the abandonment issue, the evidence indicates that the road was perceived as a private driveway. Swenson testified that he always thought it was a driveway. Haase and the realtor both believed that as well based on the location of a cattle fence off the roadway. Thus, when individuals sought permission to use the land, by extension they asked for permission to use the road.

¶ 18. A private owner cannot force the public to abandon a roadway. He or she cannot, for example, require that the public seek permission to traverse and thus transform a road from public to private. However, the public's perception of the roadway's status is a proper, but not dispositive, consideration in determining whether a public way has been abandoned. Here, the public that had occasion to use the roadway demonstrated that it considered the road's public nature abandoned because it sought permission to use the road. The trial court properly considered this evidence by ultimately determining that the road no longer remained open to the public that had occasion to use it.

Subsequent Use of the Roadway

¶ 19. The Povolnys spend much time detailing how they, along with their friends and others, have used the road since they purchased the lot. This is irrelevant. The court determined that the road was discontinued as of 1994, and resuming use of the road does not make it unabandoned. Even if that use were a consideration, once the Totzkes bought their lot and recorded the easement, it would be impossible for us to separate use of the "road" from use of the easement.

¶ 20. The Povolnys also interject a public policy argument regarding the landlocked nature of their parcel should the road be considered discontinued. The parcel is not currently landlocked; the Povolnys have an easement by necessity for accessing their land.

¶ 21. The trial court heard testimony regarding the condition of the former town road, concluding it was not open to vehicular travel. The court also heard testimony that members of the public treated the roadway as private, seeking permission when they wished to use it. Because of this, the court reasonably concluded that the roadway was not open to all members of the public who had occasion to use it. With the Lange standard unfulfilled, the roadway was abandoned as a route of travel. Coupled with the fact that highway funds had not been expended on the roadway for at least five years, the court properly categorized the road as discontinued, and the easement controls the use of the land.

By the Court. — Judgment affirmed.

       We note that under Wis. Stat. § 80.32(2), the five-year period pertains specifically to town expenditures, not the road's abandonment as a route of travel. Thus, the road could have been entirely abandoned, before or after 1994. However, the earliest the road could be considered discontinued would be after the five-year period of nonexpenditure.
      All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Haase, Swenson, and Anderson provided adequate testimony from which the trial court could have concluded the roadway was impassible in 1994. The testimony about the road's condition in 1997 and 1998 enforces that testimony and, in any event, there is sufficient evidence from which the trial court could conclude that the roadway was abandoned before the Povolnys bought it.

        See Cohn v. Town of Randall, 2001 WI App 176, ¶ 7, 247 Wis. 2d 118, 633 N.W2d 674 (Where the evidence is documentary, the appellate court is not bound by inferences drawn therefrom by the trial court.).

       This should not be mistaken for Haase treating the roadway as his own and restricting its use so as to force abandonment; Haase testified that he never prevented anyone's use of the road.

       That the Totzkes apparently barricaded the route is irrelevant because the court determined the road had been abandoned before the Totzkes bought their land. Thus, the Totzkes did not force the public to abandon the road.

       We note that the record contains letters from the Povol-nys' attorney to owners of adjoining lots. In these letters, the Povolnys attempt to buy access easements, claiming that the parcel became landlocked in 1979.


author: CANE, C.J.

text:
    Barbara Barritt, Plaintiff-Respondent, v. Mary Carolyn Lowe, d/b/a Kinni Valley Riding Academy and General Star Indemnity Company, Defendants-Appellants.
    Court of Appeals

      No. 03-0034-FT.

      Submitted on briefs May 9, 2003.

    Decided July 29, 2003.

    2003 WI App 185
    (Also reported in 669 N.W.2d 189.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Michael F. O'Brien of Kelly & Ryberg, S.C. of Eau Claire.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Phillip Todryk of Todryk Law Office, S.C. of Hudson.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   CANE, C.J.

¶ 1. Mary Carolyn Lowe, d/b/a Kinni Valley Riding Academy, and General Star Indemnity Company (Lowe) appeal a nonfinal order denying their motion for summary judgment. Lowe claims the court erred when it determined that an exception to the equine activity immunity statute, Wis. Stat. § 895.481, applied to her and, therefore, she could be held liable for injuries Barbara Barritt sustained at her riding academy. Specifically, Lowe contends the court incorrectly determined that she "provide[d] an equine" under § 895.481(3)(b) when she sold Barritt a horse eight weeks prior to her injury. We agree with Lowe and therefore reverse the order and remand to the trial court with the direction to enter summary judgment in Lowe's favor.

Background

¶ 2. Lowe owns the Kinni Valley Riding Academy in River Falls. The Academy provides riding lessons, horse training, a tack shop, and horse sales. Barritt began taking lessons at the Academy in 1997. Barritt was somewhat apprehensive around horses because of a riding accident she had several years earlier. Consequently, she chose to proceed slowly and cautiously in her lessons. At her deposition, Barritt testified that she signed liability releases and was aware of the dangers of horseback riding before starting her lessons.

¶ 3. Barritt bought a horse named Cowboy from Lowe in October 1998. She had previously taken lessons on Cowboy and continued to receive instruction on the horse after the purchase. Barritt also boarded the horse at the Academy. At a lesson in November 1998, Lowe instructed Barritt to retrieve Cowboy from the pen for a lesson. While she was doing so, another horse attacked Cowboy and Barritt was injured as a result.

¶ 4. Barritt sued Lowe to recover for the injuries sustained in the attack. Lowe moved for summary judgment, arguing she was immune under Wis. Stat. § 895.481, which provides immunity for persons engaged in equine activities. Barritt, however, claimed that Lowe fell under an exception to the immunity statute because she had sold Cowboy to Barritt several weeks earlier. The trial court agreed and denied Lowe's motion for summary judgment. Lowe requested leave to appeal, which we granted.

Discussion

¶ 5. We review a denial of summary judgment de novo, and we apply the same standard as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). A party is entitled to summary judgment if there are no disputed issues of material fact and that party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). The parties do not dispute the facts and agree that the only issue is whether the exception to equine immunity found in Wis. Stat. § 895.481(3)(b) applies to Lowe.

¶ 6. The construction of a statute presents a question of law that we review de novo. State ex rel. Treat v. Puckett, 2002 WI App 58, ¶ 9, 252 Wis. 2d 404, 643 N.W2d 515. The predominant goal of all statutory interpretation is to ascertain legislative intent. In re Estate of Kuhn, 2000 WI App 113, ¶ 7, 235 Wis. 2d 210, 612 N.W.2d 385. Statutory interpretation begins with the plain language of the statute. Alberte v. Anew Health Care Servs., 2000 WI 7, ¶ 10, 232 Wis. 2d 587, 605 N.W2d 515. Generally, we construe words and phrases according to common and approved usage and, if necessary, may consult a dictionary. State v. Sample, 215 Wis. 2d 487, 499, 573 N.W2d 187 (1998); see also Wis. Stat. § 990.01(1). However, such reliance on a dictionary does not mean that the statute is ambiguous. Id.

¶ 7. Wisconsin Stat. § 895.481 states in part:

Civil liability exemption; equine activities. (1) In this section:
(a) "Equine" means a donkey, hinny, horse, mule or pony.
(b) "Equine activity" means any of the following:
2. Equine training or teaching.
3. Boarding of equines.
4. Riding, inspecting or evaluating an equine belonging to another, regardless of whether the owner of the equine receives monetary or other consideration for the use of the equine or permits the riding, inspection or evaluation of the equine.
5. Riding, training or driving an equine or being a passenger on an equine.
6. Riding, training or driving a vehicle pulled by an equine or being a passenger on a vehicle pulled by an equine.
9. Assisting a person participating in an activity listed in subds. 1. to 8.
(e) "Inherent risk of equine activities" means a danger or condition that is an integral part of equine activities, including all of the following:
1. The propensity of an equine to behave in a way that may result in injury or death to a person on or near it.
2. The unpredictability of an equine's reaction to a sound, movement or unfamiliar object, person or animal.
3. A collision with an object or another animal.
4. The potential for a person participating in an equine activity to act in a negligent manner, to fail to control the equine or to not act within his or her ability.
5. Natural hazards, including surface and subsurface conditions.
(2) Except as provided in subs. (3) and (6), a person, including an equine activity sponsor or an equine professional, is immune from civil liability for acts or omissions related to his or her participation in equine activities if a person participating in the equine activity is injured or killed as the result of an inherent risk of equine activities.
(3) The immunity under sub. (2) does not apply if the person seeking immunity does any of the following:
(b) Provides an equine to a person and fails to make a reasonable effort to determine the ability of the person to engage safely in an equine activity or to safely manage the particular equine provided based on the person's representations of his or her ability.

¶ 8. Wisconsin Stat. § 895.481 grants immunity to persons engaged in equine activities if a person is injured or killed when participating in the activity. This immunity does not apply if a person "provides an equine" to another without making a determination of that person's ability to safely engage in the equine activity. The parties agree that Lowe was engaged in an equine activity at the time of the accident because she was boarding and training Cowboy and that Barritt was injured while participating in the equine activity. Their only dispute is whether Lowe provided an equine to Lowe by selling her Cowboy and therefore is exempt from immunity under Wis. Stat. § 895.481(3) (b).

¶ 9. Lowe contends the court erred by determining she provided Barritt with an equine. She argues that "provides" as used in the statutory exception does not refer to a sale and, even if it does, she provided the horse when she sold it to Barritt eight weeks before the accident and should therefore not be held liable. Barritt contends that the plain meaning of "provides" includes sales and, consequently, Lowe is liable.

¶ 10. We determine the trial court erred when it concluded Lowe provided Barritt with an equine when she sold Cowboy to her. The court's rationale was that the meaning of "provides" includes sales. We, however, conclude that the two concepts are not necessarily equivalent. "Provide" means "to supply for use," and "may suggest equipping [or] stocking." Webster's Third New Int'l Dictionary 1827 (unabr. 1993). "Sale" means "transferring the absolute or general ownership of property from one person ... to another for a price." Id. at 2003. These are two different concepts. When a person sells something to another, the seller gives the buyer all of his or her interest in the item sold. Providing, on the other hand, suggests that the person supplying the item for use retains some interest in the item, for instance, its ownership. Because a sale is a transfer of ownership, and provide is not, we conclude "provides" does not include a sale under Wis. Stat. § 895.481(3)(b).

¶ 11. We find support for our conclusion in Patrick v. Sferra, 855 R2d 320 (Wash. App. 1993). There, Patrick was injured while riding a horse that Ofsthus had recently given her. Id. at 321. The horse had been boarded at Sierra's stable before the transfer and Patrick continued to board it there. Id. Patrick had been taking riding lessons at the stable and had ridden the horse before it was given to her. Id. The Washington Equine Activities statute, Wash. Rev. Code §§ 4.24.530, 4.24.540, like our statute, generally provides immunity from liability for equine activities, and also made an exception to this immunity similar to Wisconsin's. See Patrick, 855 P.2d at 322. Patrick sued both Ofsthus and Sferra, arguing that they provided her with the horse that injured her. Id. The Washington Court of Appeals disagreed, concluding that "provide" as used in the statute, "means to make available for use a horse that the sponsor either owns or controls. It does not encompass a horse that has been previously been given or sold to the individual claiming damages." Id. at 323. The court noted, however, that Ofsthus might have provided the horse prior to the transfer of its title. Id. Similarly, we are satisfied that the words "provides an equine" as used in Wis. Stat. § 895.481(3)(b) means to make available for use an equine that the provider either owns or controls and does not encompass an equine previously sold or given to the individual claiming damages.

¶ 12. Based on this reasoning, we conclude Lowe did not provide Barritt with Cowboy. When she sold Cowboy, Lowe gave up all her ownership and control of the horse to Barritt. Therefore, the statutory exception to immunity found in Wis. Stat. § 895.841(3)(b) does not apply, and Lowe is immune from liability for any injuries Barritt suffered as a result of her participation in equine activities.

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

       This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Petition for leave to appeal was granted January 29, 2003.

       Although the record is not entirely clear, it seems the parties do not dispute that Lowe failed to determine Barritt's ability to retrieve Cowboy from the pen.


author: NETTESHEIM, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Donald R. Wield, Defendant-Appellant.

    Court of Appeals

      No. 02-2242-CR.

      Submitted on briefs June 9, 2003.

    Decided July 30, 2003.

    2003 WI App 179
    (Also reported in 668 N.W.2d 823.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Donald T. Lang, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Sandra L. Nowack, assistant attorney general.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.

       Petition to review denied 10-1-03.

   NETTESHEIM, PJ.

¶ 1. Donald R. Wield appeals his life sentence without possibility of parole pursuant to the "persistent repeater" statute or "two strikes" law, Wis. Stat. § 939.62(2m)(a)lm, (b)2 and (c) (2001-02), after a conviction of first-degree sexual assault of a child contrary to Wis. Stat. § 948.02(1). Wield additionally appeals the trial court's decision that the "two strikes" law is constitutional under both the United States and Wisconsin Constitutions.

¶ 2. Wield first argues that the trial court's application of the "persistent repeater" penalty is erroneously based upon his prior convictions of first-degree child sexual assault for offenses committed in 1977 and 1978. Wield contends that those convictions were based on a former statute which is not comparable to Wis. Stat. § 948.02(1), the statute under which he is currently convicted. We reject Wield's argument. We conclude that the former statute is sufficiently comparable to the current statute to support the application of the persistent repeater statute.

¶ 3. We also reject Wield's challenge to the constitutionality of the' "two strikes" law based upon our supreme court's recent decision in State v. Radke, 2003 WI 7, 259 Wis. 2d 13, 657 N.W.2d 66.

¶ 4. We therefore affirm the sentencing provisions of the judgment of conviction.

FACTS

¶ 5. The State filed a criminal complaint on November 30, 2000, charging Wield with one count of first-degree sexual assault of a child contrary to Wis. Stat. § 948.02(1). The complaint alleged that on November 18, 2000, Deputy Andrew Colborn, an officer with the Manitowoc County Sheriffs Department, was contacted by an adult on behalf of Matthew D.F., d.o.b. July 27, 1990. Based on this contact, Colborn interviewed Matthew, who related the following events. While Wield was babysitting for him, Wield touched him inappropriately and exposed his genitals to him. Matthew also stated that Wield was the stepfather of his friend. Matthew showed Colborn an e-mail written by Wield stating his "love for boys" and that any sex between him and boys would be mutual.

¶ 6. At the preliminary hearing, Matthew testified to the events alleged in the complaint. He identified Wield as the person who babysat for him. He stated that he had spent the night at Wield's home and at one point he and Wield were sitting on a couch watching television. Wield invited Matthew to move over near him and proceeded to cover Matthew with a blanket. Wield unzipped his pants and placed hfatthew's hand on his privates. At that point, Matthew was able to see Wield's privates. Wield then held Matthew behind the back and told Matthew to pull his pants down. He then proceeded to "fiddle" with Matthew's privates and told him to "get it stiff." Wield's stepson then returned to the room and Wield stopped the activity. Based on Matthew's testimony, Wield was bound over for trial.

¶ 7. The State filed an information repeating the sexual assault charge alleged in the complaint. The information further alleged that Wield had previously been convicted of "first degree sexual assault and first degree sexual assault as a repeater... on October 8, 1982." As such, the information alleged that Wield was a "persistent repeater" and was subject, upon conviction, to a mandatory sentence of life imprisonment without the possibility of parole or extended supervision.

¶ 8. Wield filed a motion challenging the constitutionality of Wis. Stat. § 939.62(2m)(c). Later, Wield filed an additional motion seeking dismissal of the repeater portion of the information on grounds that the prior crimes were not "comparable" as required by § 939.62(2m)(a)lm.b. Specifically, Wield's motion contended that the statute did not apply "because neither of the prior convictions referred to in the Information meets the definition of a 'Serious child sex offense' set forth in [§] 939.62(2m)(a)lm."

¶ 9. Following a motion hearing, the trial court entered a written decision deferring a ruling on Wield's motion contending that the prior crimes were not comparable to the charged offense. Instead, the court determined that the State had until sentencing to prove beyond a reasonable doubt that Wield's prior offenses would constitute a felony under Wis. Stat. § 939.62(2m)(a)lm. However, the court rejected Wield's constitutional challenge on the merits, ruling that the application of § 939.62(2m)(c) did not violate the Wisconsin Constitution or the United States Constitution.

¶ 10. Thereafter, Wield entered pleas of guilty and not guilty by reason of mental disease or defect.

¶ 11. A jury trial was held on Wield's special plea of not guilty by reason of mental disease or defect. The jury answered "yes" to Wield having a mental disease but "no" to Wield lacking substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.

¶ 12. Prior to sentencing, the parties submitted briefs on the pending question of whether the prior offenses were comparable to the present offense. The trial court addressed these arguments at the sentencing hearing, ruling that the former statutes under which Wield had been previously convicted were comparable to the current Wis. Stat. § 948.02(1), that the prior convictions would constitute a felony under Wis. Stat. § 939.62(2m)(a)lm.b, and therefore Wield was a persistent repeater pursuant to § 939.62(2m)(c). The court sentenced Wield to life imprisonment without possibility of release to extended supervision. Wield appeals the sentencing provisions of the judgment of conviction.

DISCUSSION

Comparable Offenses

¶ 13. Wield challenges the trial courts application of Wis. Stat. § 939.62(2m)(c) to his sentence. Specifically, Wield contends that his prior offenses are not comparable within the meaning of § 939.62(2m)(a)lm.b. and therefore cannot constitute prior predicate felonies which would allow for an enhanced sentence. This issue involves the interpretation of the former and current child sexual assault statutes, an exercise presenting a question of law that we review de novo. See State v. Campbell, 2002 WI App 20, ¶ 4, 250 Wis. 2d 238, 241, 642 N.W.2d 230, review denied, 2002 WI 48, 252 Wis. 2d 150, 644 N.W.2d 686 (Wis. Apr. 22, 2002) (No. 01-0758-CR).

¶ 14. Pursuant to Wis. Stat. § 939.62(2m)(a)lm, (b)2 and (c), Wisconsin's "two strikes" law, a court is required to sentence a persistent repeat offender of a serious child sex offense to life imprisonment without the possibility of parole. A person is a persistent repeat offender if he or she "has been convicted of a serious child sex offense on at least one occasion at any time preceding the date of violation of the serious child sex offense for which he or she presently is being sentenced under ch. 973, which conviction remains of record and unreversed." Sec. 939.62(2m)(b)2. In addition to child sex offenses under current statutes, a "serious child sex offense" also includes "[a] crime at any time under federal law or the law of any other state or, prior to July 16, 1998, under the law of this state that is comparable to a crime specified in subd. lm.a." Sec. 939.62(2m) (a) lm.b.

¶ 15. Wield's current conviction is for first-degree sexual assault contrary to Wxs. Stat. § 948.02(1), which is a serious child sex offense under Wis. Stat. § 939.62(2m)(a)lm.a. Section 948.02(1) makes it a Class B felony to have "sexual contact or sexual intercourse with a person who has not attained the age of 13 years." For purposes of this statute, the term "sexual contact" is defined as:

Intentional touching by the complainant or defendant, either directly or through clothing by the use of any body part or object, of the complainant's or defendant's intimate parts if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant.

Sec. 948.01(5)(a).

¶ 16. Wield's previous convictions of first-degree sexual assault were under a statute which penalized sexual contact with "a person 12 years of age or younger," Wis. Stat. § 940.225(l)(d) (1977), and defined "sexual contact" as follows:

any intentional touching of the intimate parts, clothed or unclothed, of a person to the intimate parts, clothed or unclothed, of another, or the intentional touching by hand, mouth or object of the intimate parts, clothed or unclothed, of another, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification ....

Sec. 940.225(5)(b) (1977) (emphasis added).

¶ 17. Wield argues that the language of Wis. Stat. § 940.225(5)(b) (1977) is not comparable to Wis. Stat. § 948.01(5)(a) because the phrase "reasonably be construed" was eliminated in the current statute. Although both statutes are denominated "first degree sexual assault of a child," Wield contends that they are substantively different. Specifically, Wield argues that under the former statute, the State was not required to prove that the defendant actually engaged in the contact "for the purpose" of becoming sexually aroused or gratified but rather only needed to show that the contact could "reasonably be construed" as being for that purpose. Stated differently, Wield argues the language in the 1977 statute employed an objective sci-enter element, allowing a jury to find a person guilty of sexual assault even if it harbors a reasonable doubt that the person engaged in the contact for the requisite sexual purpose. Under the current statute, Wield argues that the test for the element of scienter is subjective. Given the difference in these elements, Wield reasons that the two statutes are not comparable.

¶ 18. While Wield recognizes that the language of statutes does not need to be "identical" under State v. Burroughs, 2002 WI App 18, ¶ 27, 250 Wis. 2d 180, 640 N.W.2d 190, review denied, 2002 WI 48, 252 Wis. 2d 150, 644 N.W.2d 686 (Wis. Apr. 22, 2002) (No. 01-0738-CR), he contends that we are obliged to employ an "elements only" analysis as set out in Blockburger v. United States, 284 U.S. 299 (1932). We disagree. Although the court applied the "elements only" test in Burroughs, nowhere did the court hold that this was the only methodology for assessing whether the statutes under inquiry are "comparable." In fact, in a subsequent case, this court conducted a "comparable" analysis by considering whether the defendant's conduct under the statute governing the prior conviction would constitute a felony under the current statute. See State v. Collins, 2002 WI App 177, ¶ 23, 256 Wis. 2d 697, 649 N.W2d 325, review denied, 2002 WI 121, 257 Wis. 2d 119, 653 N.W.2d 891 (Wis. Sept. 26, 2002) (No. 01-2185-CR). Thus, we are entitled to consider whether Wield's conduct which produced the prior convictions would be a "serious child sex offense" if performed under the current statute. If Wield's conduct would have been a serious child sex offense under the current statute, "then the court need not even consider the elements of the crime" under the former statute governing the prior conviction. See id.

¶ 19. Looking to the facts of Wield's prior convictions, it is readily apparent that the conduct underlying those convictions would constitute a "serious child sex offense" under the current statute. The 1977 offense was based on a complaint that Wield had "fondled and squeezed the testicles and penis of the male juvenile through his underwear." The 1978 offense was based on a complaint that Wield had "sucked on and fondled" the genitals of an eight-year-old boy. Pursuant to Wis. Stat. § 939.62(2m)(d), the trial court expressly found beyond a reasonable doubt that, if committed today, Wield's prior conduct in 1978 would fall under the current definition of "sexual contact" in Wis. Stat. § 948.01 (5) (a) ("Intentional touching by the ... defendant, either directly or through clothing by the use of any body part... of the complainant's . . . intimate parts if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant."). The correctness of the trial court's holding is beyond dispute, and it follows that the two statutes in question are comparable as required by § 939.62(2m)(a)lm.b. As such, the trial court properly applied the "persistent repeater" provision pursuant to § 939.62(2m)(c).

Constitutionality of Wis. Stat. § 939.62(2m)

¶ 20. Wield next argues that the "two strikes" portion of the persistent repeater statute violates the substantive due process and equal protection provisions of the Wisconsin and United States Constitutions. This argument presents a question of law that we review de novo. See State v. Coolidge, 173 Wis. 2d 783, 789, 496 N.W.2d 701 (Ct. App. 1993).

¶ 21. The Wisconsin Supreme Court has recently upheld the constitutionality of this statutory scheme in Radke, 259 Wis. 2d 13, ¶ 7. There, the defendant complained that under Wis. Stat. § 939.62(2m)(a)lm, a second conviction for a Class B felony "serious child sex offense" must be punished by life imprisonment without the possibility of parole whereas § 939.62(2m)(b)l provided the same punishment to a person convicted of a third Class A homicide felony. Radke, 259 Wis. 2d 13, ¶¶ 2-3. The defendant claimed that this dichotomy between the "two strikes" law and the "three strikes" law represented an irrational sentencing scheme in violation of the due process provisions of the Wisconsin and United States Constitutions. Id., ¶¶ 4-5. The court gave several reasons for upholding this statute, stating:

[W]e conclude that the legislature's interest in protecting the public from child sexual assault offenders, a particular subset of offenders with a perceived high rate of recidivism who victimize an especially vulnerable segment of the population, makes it rational for the legislature to impose a greater penalty on an offender convicted of a second Class B non-fatal child sexual assault than on an offender convicted of a second Class A felony homicide offense.

Id., ¶ 36. We conclude that the supreme court's decision upholding the constitutionality of the "two strikes" portion of the persistent repeater statute defeats ■' Wield's constitutional challenge.

CONCLUSION

¶ 22. We conclude that Wis. Stat. § 948.02(1) is comparable to the 1977 statute, Wis. Stat.

§ 940.225(1)(d). Thus, the trial court properly relied on Wield's prior convictions as a basis for the "persistent repeater" portion of the sentence. We also conclude that the "two strikes" law is constitutional pursuant to Radke. We therefore affirm the judgment of conviction.

By the Court. — Judgment affirmed.

       Wisconsin Stat. § 939.62(2m)(a)lm, (b)2 and (c) (2001-02) compose Wisconsin's "two strikes" law. State v. Radke, 2003 WI 7, ¶ 2 n.2, 259 Wis. 2d 13, 657 N.W2d 66. It provides:
      (2m) (a) In this subsection:
      lm. "Serious child sex offense" means any of the following:
      a. A violation of s. 948.02, 948.025,948.05, 948.055,948.06, 948.07, 948.08 or 948.095 or 948.30 or, if the victim was a minor and the convicted person was not the victim's parent, a violation of s. 940.31.
      b. A crime at any time under federal law or the law of any other state or, prior to July 16, 1998, under the law of this state that is comparable to a crime specified in subd. lm.a.
      (b) The actor is a persistent repeater if one of the following applies:
      2. The actor has been convicted of a serious child sex offense on at least one occasion at any time preceding the date of violation of the serious child sex offense for which he or she presently is being sentenced under ch. 973, which conviction remains of record and unreversed.
      (c) If the actor is a persistent repeater, the term of imprisonment for the felony for which the persistent repeater presently is being sentenced under ch. 973 is life imprisonment without the possibility of parole or extended supervision.
      Sec. 939.62(2m).
      All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise indicated.

       The complaint also alleged that Wield had exposed his genitals to a child contrary to Wis. Stat. § 948.10. However, this charge was not alleged in the information.

       The State also produced testimony from two other children regarding charges against Wield brought in a separate case.

       Pursuant to the plea agreement, the charges filed in the separate case were dismissed.

       Even applying the "elements only" test, we reject Wield's argument. While the wording of the two statutes facially supports Wield's contention that the 1977 statute stated an objective test for intent while the current statute is stated in more subjective terms, the jury instructions for both the former and current statutes reveal that the actual application of the prior statute was very similar to that of the current statute. The jury instruction for sexual contact under the current statute, Wis. Stat. § 948.01(5), addresses the issue of intent as follows: 'You cannot look into a person's mind to find intent. Intent must be found, if found at all, from the defendant's acts, words, and statements, if any, and from all the facts and circumstances bearing upon intent." Wis JI — CRIMINAL 2101A. This is similar to the jury instruction used in 1982, when the language "reasonably be construed" was part of the statute. That instruction stated:
      You cannot look into a person's mind to find out his intent. You may determine such intent directly or indirectly from all the facts in evidence concerning this offense .... [Y]ou must not find the defendant guilty unless you are satisfied beyond a reasonable doubt that the defendant had sexual contact with [the victim] with intent to . .. become sexually aroused or gratified.
      Wis JI — -CRIMINAL' 1207 (1980). Thus, the language by which a jury would determine a defendant's intent under the prior statute or the current statute uses the same subjective standards. As we have noted, statutes may be comparable even though they are worded differently. See State v. Burroughs, 2002 WI App 18, ¶ 27, 250 Wis. 2d 180, 640 N.W.2d 190, review denied, 2002 WI 48, 252 Wis. 2d 150, 644 N.W.2d 686 (Wis. Apr. 22, 2002) (No. 01-0738-CR). Here, although the statutes are worded differently, their practical application in the real world of the courtroom was similar.

       We note that in State v. Collins, 2002 WI App 177, ¶ 23, 256 Wis. 2d 697, 649 N.W2d 325, review denied, 2002 WI 121, 257 Wis. 2d 119, 653 N.W2d 891 (Wis. Sept. 26, 2002) (No. 01-2185-CR), the court was considering the comparability of an out-of-state statute to a Wisconsin statute. However, this distinction offers no basis for rejecting the application of Collins to this case.

       WISCONSIN Stat. § 939.62(2m)(d) provides as follows:

        If a prior conviction is being considered as being covered under par. (a)lm.b. ... as comparable to a felony under par. (a)lm.a. ... the conviction may be counted as a prior conviction under par. (b) only if the court determines, beyond a reasonable doubt, that the violation relating to that conviction would constitute a felony specified under par. (a)lm.a. ... if committed by an adult in this state.

       We are tempted to invoke waiver against Wield as to this issue because in the trial court his constitutional challenge was premised on ex post facto grounds whereas on appeal he argues due process and equal protection violations. However, the State does not argue waiver, and Wield concedes in his reply brief that Radke requires us to reject his constitutional challenge.

       In the trial court, Radke had raised both a due process and equal protection challenge. Radke, 259 Wis. 2d 13, ¶ 6. However, the supreme court's decision in Radke was limited to a due process challenge. Id., ¶ 5. As noted, Wield's constitutional challenge on appeal includes both a due process and an equal protection claim. However, since Wield concedes that Radke governs his constitutional challenges, we do not discuss the equal protection aspects of this case further.


text:
    In re the Commitment of Joseph Lombard: State of Wisconsin, Petitioner-Respondent, v. Joseph A. Lombard, Respondent-Appellant.

    Court of Appeals

      No. 00-3318.

      Oral argument January 29, 2003.

      Decided July 31, 2003.

    2003 WI App 163
    (Also reported in 669 N.W2d 157.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of and oral argument by David R. Karpe of Karpe Law Office, Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Eileen W. Pray, assistant attorney general, and James E. Doyle, attorney general. There was oral árgument by Eileen W. Pray.

      Before Dykman, Deininger and Lundsten, JJ.

       Petition to review granted 10-21-03.

   DEININGER, J.

¶ 1. Joseph Lombard appeals a judgment that determined him to be a sexually violent person and committed him for treatment under Wis. Stat. ch. 980 (1999-2000). He also appeals two orders denying his post-judgment motions. He claims error in the following: (1) the trial court's failure to give his requested instruction on "lack of volitional control"; (2) the unconstitutionality of 1999 Wis. Act 9 which removed the court's authority to grant immediate supervised release; (3) the trial court's instruction to the jury that sexually violent persons are eligible for supervised release; (4) the lack of sufficient evidence to establish the grounds for his commitment; and (5) a violation of his Fifth Amendment rights stemming from the State's use at trial of statements he made during a pre-petition psychological evaluation.

¶ 2. We conclude that the issue of a specific instruction on lack of volitional control has been decided adversely to Lombard by the Wisconsin Supreme Court, as has a portion of his constitutional challenge to Wis. Stat. § 980.06. We reject his separation of powers argument on the latter issue, as well as his claim that the court erred in giving a curative instruction regarding a ch. 980 committee's eligibility for release. We also conclude there was sufficient evidence for the jury to find that Lombard suffers from a mental disorder that makes it substantially probable he will engage in further acts of sexual violence. Finally, we conclude that our decision in State v. Zanelli, 223 Wis. 2d 545, 589 N.W.2d 687 (Ct. App 1998) (Zanelli II), disposes of Lombard's Fifth Amendment claim regarding statements he made during a psychological evaluation conducted for the purposes of ch. 980.

¶ 3. Accordingly, we affirm the appealed judgment and order.

BACKGROUND

¶ 4. Lombard was convicted in 1981 of first-degree sexual assault and five counts of second-degree sexual assault. Several days prior to his January 2000 mandatory release date, the State petitioned to have him committed under Wis. Stat. ch. 980 as a sexually violent person. The State's allegations were tried to a jury, which returned a verdict finding Lombard to be a sexually violent person. The trial court entered judgment on the jury's verdict and committed Lombard to the Department of Health and Family Services for institutional care and treatment in a secure mental health facility.

¶ 5. Lombard filed motions after verdict seeking a new trial on the grounds that the trial court had unduly restricted his cross-examination of the State's expert witness, erroneously excluded certain evidence, and erred in instructing the jury. He also challenged the constitutionality of the 1999 amendment to Wis. Stat. § 980.06 which eliminated the option of immediate supervised release for Wis. Stat. ch. 980 committees, and he requested a new trial "in the interest of justice." The court denied Lombard's motions, and he commenced this appeal. At his request, we remanded the case to the circuit court to permit Lombard to file an additional post-judgment motion asserting ineffective assistance of trial counsel. The circuit court denied the motion without a hearing.

¶ 6. Additional facts relating to the specific issues Lombard raises on appeal are included in the analysis which follows.

ANALYSIS

I — I

¶ 7. Lombard's first claim is that the trial court erred in refusing his request to modify the pattern jury instructions regarding the elements that the State must prove in order to establish that he is a sexually violent person. A trial court may exercise broad discretion in deciding whether to give a requested jury instruction. See State v. McCoy, 143 Wis. 2d 274, 289, 421 N.W2d 107 (1988). If the instructions given adequately cover the law applied to the facts, we will not find error in refusing special instructions even though, if given, they, too, would not be erroneous. See State v. Amos, 153 Wis. 2d 257, 278, 450 N.W.2d 503 (Ct. App. 1989).

¶ 8. Relying on Kansas v. Crane, 534 U.S. 407 (2002), Lombard asked the court to insert the following italicized language into Wis JI — Criminal 2502 (1999):

A petition has been filed alleging that Joseph Lombard is a sexually violent person. A sexually violent person is one who has been convicted of a sexually violent offense and is dangerous to others because he currently has a mental disorder that impairs his volitional control to the degree he cannot control his behavior, that makes it substantially probable that the person will engage in future acts of sexual violence.
"Mental disorder" means a condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence. In other words, the mental disorder must impair his volitional or emotional control to the degree that he cannot control his behavior. Mental disorders do not include merely deviant behaviors that conflict with prevailing societal standards. Not all persons who commit sexually violent offenses can be diagnosed as suffering from a mental disorder, nor are all persons with a mental disorder predisposed to commit sexually violent offenses. You are not bound by medical opinions, labels, or definitions.

The court denied Lombard's request, instructing the jury as quoted above but without the italicized language. Lombard contends this was reversible error.

¶ 9. The State responds, and we agree, that the supreme court has rejected the precise argument based on Crane that Lombard advances here. The court concluded in State v. Laxton, 2002 WI 82, 254 Wis. 2d 185, 647 N.W.2d 784, cert. denied, 537 U.S. 1114 (2003), that "proof that due to a mental disorder it is substantially probable that the person will engage in acts of sexual violence necessarily and implicitly includes proof that such person's mental disorder involves serious difficulty in controlling his or her sexually dangerous behavior. Wisconsin Stat. ch. 980, therefore, satisfies due process requirements." Laxton, 254 Wis. 2d 185, ¶ 23. More specifically, the supreme court determined that a jury instruction similar to the one given in this case, which informed jurors that "[mjental disorder means a. . . condition affecting the emotional or volitional capacity that predisposes the person to engage in acts of sexual violence," satisfied the due process concerns discussed in Crane. Id., ¶ 27.

¶ 10. We are of course bound by Laxton, and we apply its holding here to conclude that the court did not err in rejecting Lombard's proffered instruction and in giving the one it did. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (holding that only the supreme court has the power to overrule, modify or withdraw language from a previous supreme court opinion).

¶ 11. Wisconsin Stat. § 980.06 currently provides that, if someone is found to be a sexually violent person, the initial commitment order "shall specify that the person be placed in institutional care." Prior to the enactment of 1999 Wis. Act 9, however, the statute permitted the committing court to "specify either institutional care or supervised release" in the initial order of commitment. See Wis. Stat. § 980.06(2)(b) (1997-98). Lombard argues that the 1999 amendment removing the possibility for immediate supervised release renders the statute unconstitutional because it violates both due process and the separation of powers. We reject both assertions.

¶ 12. The due process challenge to the amended statute is easily disposed of. We have previously concluded that the amendment enacted in 1999 Wis. Act 9 does not violate the principles of equal protection. See State v. Williams, 2001 WI App 263, 249 Wis. 2d 1, 637 N.W.2d 791, review denied, 2002 WI 111, 256 Wis. 2d 63, 650 N.W2d 840 (Wis. Jul. 26, 2002) (No. 00-2899). More recently, the supreme court held in State v. Rachel, 2002 WI 81, 254 Wis. 2d 215, 647 N.W.2d 762, that the amendments to ch. 980 do not violate substantive due process. We are bound by both of these decisions.

¶ 13. Lombard's separation of powers argument also lacks merit. He contends that by eliminating the circuit court's authority to order immediate supervised release of a Wis. Stat. ch. 980 committee, the legislature has attempted to exercise judicial authority and has thus usurped "judicial power." Lombard cites no authority, however, for the proposition that courts possess the inherent or exclusive power to determine the settings in which mental health treatment will be provided to persons under commitment, and we are aware of none.

¶ 14. The legislature has granted circuit courts the authority in civil commitment proceedings to designate whether initial treatment is to be provided on an inpatient or outpatient basis, see Wis. Stat. § 51.20(13)(a)3, just as it previously did under Wis. Stat. § 980.06 (1997-98). This does not mean, however, that the legislature was required to delegate this determination to the courts. We agree with the State that determining dispositions in mental health commitments is similar to doing so in criminal prosecutions, which is an area of "shared powers" between the legislative, executive and judicial branches. Lombard has advanced no reason why the legislature may not "determine the scope" of a court's discretion in setting the initial disposition in a Wis. Stat. ch. 980 commitment, just as it is authorized to do with respect to a "sentencing court's discretion." See State v. Horn, 226 Wis. 2d 637, 646, 594 N.W2d 772 (1999).

I — I

¶ 15. A defense expert testified at trial that sex offender risk-assessment instruments employed by probation officers and correctional staff omit certain important factors that, in his view, should be considered. He went on to say that "at this level, you know, where we are looking at commitment for life because of a sex offense, I think you have to also consider some of the other powerful factors that are not included in that — in those instruments." The State objected to the witness's statement regarding a "commitment for life" as being an improper and incorrect reference to the disposition in proceedings under Wis. Stat. ch. 980. It requested that the court give a curative instruction.

¶ 16. The trial court agreed with the State and, over defense objection, gave the following curative instruction:

During the testimony yesterday by Dr. Lodi, there was a misstatement in his testimony as to what the law is in that Dr. Lodi testified regarding a commitment for life. That is a misstatement of the law. The Court will advise you that under Sec. 980.06(1) of the Wisconsin statutes, the law is that if a court or jury determines that the person who is the subject of a petition under Sec. 980.02 is a sexually violent person, the court shall order the person committed to the custody of the Department of Health and Family Services for control, care and treatment until such time as the person is no longer a sexually violent person. This can include institutional or supervised release with opportunities for periodic examination, with opportunities on a regular basis to petition the court for supervised release or for a petition for discharge either by the Secretary of the Department of Health and Family Services or by the person committed.

¶ 1-7. Lombard argues that the instruction "gave the jury a false sense that an S[exually] V[iolent] P[erson] finding could be met by a wide range of judicial disposition, which was simply not true." He contends that when the court chose to instruct jurors regarding Wis. Stat. ch. 980 dispositions, it was "obliged to tell them that if they found Lombard was an SVfi the court would commit him forthwith to institutional care." Lombard does not assert that the court's curative instruction misstated the law, only that it was incomplete and prejudicially so.

¶ 18. We agree with the State, and with Lombard's tacit admission, that the curative instruction correctly stated the law. We also conclude that the instruction properly served to correct any misimpression jurors might have gained from the expert's testimony that a "commitment for life" was at issue in the instant proceedings. As the supreme court has explained, a "trial court has broad discretion when instructing a jury .... If the overall meaning communicated by the instructions was a correct statement of the law, no grounds for reversal exist." Fischer v. Ganju, 168 Wis. 2d 834, 849-50, 485 N.W2d 10 (1992) (citations omitted). We conclude that the challenged curative instruction did not "probably" mislead the jury, see id., and accordingly, the court did not erroneously exercise its discretion in giving the quoted instruction.

IV.

¶ 19. Lombard's next challenge is to the sufficiency of the evidence to support the jury's verdict that he is a sexually violent person. Specifically, he claims there was "no foundation for a finding of dangerousness because the diagnosis of sexual sadism is so doubtful." He points out that only one of four experts who testified at trial concluded Lombard was a sexual sadist who presented a substantial probability of engaging in future acts of sexual violence.

¶ 20. It is axiomatic, however, that jurors are not required to base their determinations of the weight and credibility of evidence on the number of witnesses who testify in favor of or against the existence of a disputed fact. In fact, jurors are expressly instructed to not base their conclusions simply on the number of witnesses appearing for one side. See Wis JI — Criminal 190. We thus reject Lombard's suggestion that because three defense experts contradicted the State's lone expert, the evidence was insufficient for the jury to find him to be a sexually violent person.

¶ 21. Moreover, our standard for reviewing the sufficiency of the evidence to support a jury's verdict" 'is not whether this court or any of the members thereof are convinced [that Lombard is a sexually violent person] beyond reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be so convinced by evidence it had a right to believe and accept as true.1" State v. Poellinger, 153 Wis. 2d 493, 503-04, 451 N.W.2d 752 (1990) (citation omitted). We conclude that the standard is met on this record. The State's expert, a psychologist who evaluated Lombard for the purpose of determining whether proceedings under Wis. Stat. ch. 980 should be instituted, diagnosed Lombard with sexual sadism, a mental disorder which the expert testified rendered Lombard dangerous and substantially likely to reoffend within the meaning of ch. 980. Lombard does not argue that this testimony was inherently incredible or incredible as a matter of law. Accordingly, the jury had a right to believe and accept the State's expert's testimony and opinions as true, even if Lombard presented conflicting testimony from other experts. See State v. Kienitz, 227 Wis. 2d 423, 438-41, 597 N.W.2d 712 (1999).

¶ 22. We conclude that, as in State v. Curiel, 227 Wis. 2d 389, 597 N.W2d 697 (1999), where only one of three experts testified that the respondent was much more likely than not to reoffend, the testimony of the State's expert is sufficient to support the jury's verdict. See id. at 420. The evidence at trial, "viewed most favorably to the state" and to the verdict, is not so lacking in probative value and force that no trier of fact, acting reasonably, could have found the criteria for commitment beyond a reasonable doubt. See Poellinger, 153 Wis. 2d at 507.

V

¶ 23. Lombard's final claim of error is that the trial court erred in permitting statements he made to the State's evaluating psychologist regarding his past sexual offenses to be used against him in the Wis. Stat. ch. 980 commitment proceedings. He asserts that the examiner did not advise him of his right to remain silent as required under Miranda v. Arizona, 384 U.S. 436 (1966), and thus he did not knowingly and voluntarily waive his right to silence when he gave information to the psychologist about his past offenses. The psychologist in turn used these statements to conclude that Lombard was substantially likely to reoffend and so testified before the jury. Lombard notes that Wis. Stat. § 980.05(lm) provides that persons subject to ch. 980 proceedings are entitled to all constitutional rights available to a criminal defendant and, at trial, to all of a criminal defendant's rights relating to the admission of evidence. He claims that the right to a Miranda warning comes within these rights, and that if a Miranda violation occurs, a person's statements cannot be admitted at trial in the State's case in chief.

¶ 24. Lombard also notes that we have recognized that the State may not comment at trial on the fact that a person subject to Wis. Stat. ch. 980 proceedings chose not to speak to an examining psychologist or psychiatrist. State v. Zanelli, 212 Wis. 2d 358, 370-72, 569 N.W.2d 301 (Ct. App. 1997) (.Zanelli T). He contends that a necessary corollary to our holding in Zanelli I is the right to prevent the State's use of any statements made to an examiner if the requirements of Miranda were not met at the time of the examination interview. Finally, Lombard points to Estelle v. Smith, 451 U.S. 454, 466 (1981), as establishing that Fifth Amendment safeguards apply when a psychiatrist interviews an in-custody criminal defendant, and he argues that the same safeguards should apply to persons subject to ch. 980 proceedings.

¶ 25. The State argues both that Lombard was not entitled to a Miranda warning at the commencement of his pre-petition psychological' interview and that, if he was so entitled, the examiner provided the "functional equivalent" of the Miranda warning. We agree with the State's first assertion and therefore do not address the second.

¶ 26. Lombard is correct that Zanelli I stands for the proposition that a person subject to commitment proceedings under Wis. Stat. ch. 980 has "a constitutional right against self-incrimination," which includes prohibiting the State from commenting at a ch. 980 trial on a respondent's "refusal to be interviewed." State v. Zanelli, 223 Wis. 2d 545, 569-70, 589 N.W2d 687 (Ct. App. 1998) (.Zanelli IT). It does not necessarily follow, however, that a person who is being evaluated for the potential filing of a ch. 980 petition is entitled to a Miranda warning before being interviewed. Although part of our analysis in Zanelli II suggests that incriminating statements made to a police officer in violation of Miranda cannot be admitted at a ch. 980 trial, we also noted that statements made regarding "matters for which Zanelli had already been convicted . . . could not subject Zanelli to future criminal prosecution." Zanelli II, 223 Wis. 2d at 568. We therefore concluded that

[t]he fact that such statements can be used in a ch. 980 . . . case does not mean that the statements could incriminate him in a pending or subsequent criminal prosecution as ch. 980 is a civil commitment proceeding, not a criminal proceeding. Accordingly the statements were admissible.

Id. (citation omitted).

¶ 27. Lombard does not argue that anything he told the State's examiner could "incriminate him in a pending or subsequent criminal prosecution." See id. We conclude, therefore, that the cited passage from Zanelli II, applied to the present facts, means that Lombard was not entitled to suppress the statements he made to the examining psychologist on the grounds that he was not given Miranda warnings before the interview. The purpose of the examiner's interview was to evaluate Lombard for the purpose of a potential "civil commitment proceeding, not a criminal proceeding," id., and the examiner was not required to comply with Miranda's dictates. Had the examiner, inadvertently or otherwise, elicited statements from Lombard which could subject him to future criminal prosecution, those statements might well be suppressible in a future prosecution under Estelle. We do not address whether any statements made to the examiner that would subject Lombard to future criminal prosecution may be excluded from a trial under Wis. Stat. ch. 980, as that question is not presented by the facts and arguments before us.

¶ 28. We acknowledge that our present conclusion and those in Zanelli I and 11 regarding a Wis. Stat. ch. 980 respondent's rights under the Fifth Amendment and Miranda may appear contradictory. It is clear that a "person who is the subject of [a ch. 980] petition" has a statutory right to "[r]emain silent," Wis. Stat. § 980.03(2)(b), but we have concluded that this right "plainly does not apply" to a pre-petition examination. Zanelli I, 212 Wis. 2d at 370. We have also concluded, however, that the State may not comment at a ch. 980 trial upon a respondent's "refus[al] to participate in [a] formal evaluation made prior to the filing of a [ch. 980] petition." Id. at 369. We conclude today that the State may use at a ch. 980 trial any statements made by the respondent to a pre-petition State examiner that could not subject the respondent to future criminal prosecution, regardless of whether the respondent was warned that the State may use those statements at a ch. 980 trial. See Zanelli II, 223 Wis. 2d at 568.

¶ 29. Were we writing on a clean slate, we might navigate this terrain differently, but we are not and feel compelled by the analysis in Zanelli II to reach the result we do here. See Cook, 208 Wis. 2d at 189-90. The supreme court may wish to address our conclusions and to clarify the interaction between Wis. Stat. § 980.05(lm) send Miranda in the pre-petition examination setting.

CONCLUSION

¶ 30. For the reasons discussed above, we affirm the appealed judgment and orders.

By the Court. — Judgment and orders affirmed.

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

       Lombard also requested a four-question verdict requiring the jury to make separate findings on each required element (conviction for a sexually violent offense, petition filed within ninety days of release, presence of a mental disorder, and dangerousness to others because of a substantial probability of engaging in future acts of sexual violence). Lombard's proposed verdict question regarding the presence of a mental disorder also included language relating to impairment of "emotional or volitional control." The court opted for a single-question verdict asking the jury to determine whether "Joseph A. Lombard is a sexually violent person." Lombard challenges only the court's refusal to give his requested modified instruction. He does not separately address the court's use of a single-question verdict.

       "The weight of evidence does not depend on the number of witnesses on each side. You may find that the testimony of one witness is entitled to greater weight than that of another witness or even of several other witnesses." Wis JI — Criminal 190. The trial court gave this instruction.

       The State used Lombard's statements during his pre-petition interview in two ways: its expert witness considered them in arriving at his diagnosis of sexual sadism, and some statements were related to the jury during the expert's testimony and cross-examination. Documents showing that Lombard had committed a number of rapes between 1978 and 1980 and describing the details of those offenses, including victim descriptions of them, were admitted into evidence by stipulation of the parties. Thus, it is not the fact of his prior sexual offenses that Lombard claims should have been excluded but the descriptions of his motivations and sensations during them, which were used to support the State examiner's diagnosis and prediction of dangerousness.
      We also note that Lombard did not object at trial to the admission of the State's psychologist's report and testimony. He moved for post-verdict relief on the grounds that he had not given informed consent for his examination interview. The trial court denied this motion, as well as Lombard's subsequent motion alleging ineffective assistance based on his counsel's failure to timely object to the report and testimony at issue. Because the question of whether Lombard was entitled to Miranda warnings at the commencement of his pre-petition examination by a State psychologist is at the heart of Lombard's claim of ineffective assistance of counsel, we address that question directly. Because we conclude he was not so entitled, he suffered no prejudice as a result of his counsel's failure to seek exclusion of the psychologist's report and testimony on Miranda grounds.

       Wisconsin Stat. § 980.05(lm) provides: "At the trial to determine whether the person who is the subject of a petition ... is a sexually violent person, all rules of evidence in criminal actions apply. All constitutional rights available to a defendant in a criminal proceeding are available to the person."

       The State's psychologist testified that he informs those whom he interviews for the purposes of Wis. Stat. ch. 980 that their participation in the evaluation process is voluntary and that they may refuse to answer any or all questions put to them. A form acknowledgment informs persons so evaluated that "you have the right not to participate in the examination or to answer any of the questions posed to you, hut this refusal will be used as part of the evaluation."

       Zanelli argued that a statement he had made to a police officer in 1977, "in which Zanelli graphically described his sexual conduct with several boys," was wrongly admitted into evidence at his Wis. Stat. ch. 980 trial because the State had not shown "that he had knowingly and intelligently waived his Miranda rights." State v. Zanelli, 223 Wis. 2d 545, 569-70, 589 N.W.2d 687 (Ct. App. 1998) (Zanelli II)- Based on the officer's testimony at the Miranda hearing, we concluded that "Zanelli was not in custody when he gave the 1977 statement; therefore Miranda warnings were not required." Id. at 569.