author: NETTESHEIM, PJ.

text:
    In re the Commitment of James Lalor: State of Wisconsin, Petitioner-Respondent, v. James Lalor, Respondent-Appellant.

    Court of Appeals

      No. 00-1957.

      Submitted on briefs January 23, 2003.

    Decided February 26, 2003.

    2003 WI App 68
    (Also reported in 661 N.W.2d 898.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of T. Christopher Kelly of Kelly & Habermehl, S.C. of Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Christopher G. Wren, assistant attorney general.
    Before Nettesheim, PJ., Brown and Anderson, JJ.

       Petition to review filed.

   NETTESHEIM, PJ.

¶ 1. James Lalor appeals from an order for commitment pursuant to Wis. Stat. ch. 980 (1999-2000) based on the trial court's finding that he is a sexually violent person. Lalor additionally appeals from an order denying his motion for a new trial. Lalor argues that (1) the actuarial data relied upon by the State's experts was insufficient to support a finding that he presented a substantial likelihood of reoffending, (2) the trial court violated his right to substantive due process when it failed to determine whether he is unable to control his behavior, and (3) the trial court failed to find that the State proved beyond a reasonable doubt that he was within ninety days of release when his commitment petition was filed.

¶ 2. We conclude that there was sufficient evidence to support a finding that Lalor is a sexually violent person within the meaning of Wis. Stat. ch. 980. We further conclude pursuant to State v. Laxton, 2002 WI 82, 254 Wis. 2d 185, 647 N.W.2d 784, cert. denied, 123 S. Ct. 870 (U.S. Wis. Jan. 13, 2003) (No. 02-6652), that Lalor's right to substantive due process was not violated by the trial court's failure to make an express finding that he is unable to control his behavior.

¶ 3. Finally, we conclude pursuant to State v. Thiel, 2000 WI 67, ¶ 1, 235 Wis. 2d 823, 612 N.W.2d 94 (Thiel I), that the State must prove that Lalor was within ninety days of release when the petition in this case was filed. Consistent with State v. Thiel, 2001 WI App 52, ¶ 19, 241 Wis. 2d 439, 625 N.W.2d 321 (Thiel II), we remand for a limited hearing to give the State the opportunity to do so.

FACTS

¶ 4. On February 8,1999, the State petitioned the trial court for an order to detain Lalor alleging that he is a "sexually violent person" within the meaning of Wis. Stat. § 980.01(7) (1993-94). The State alleged that Lalor had been convicted of first-degree sexual assault of a child in 1992 and that he was within ninety days of his discharge from the sentence imposed. In support of the petition, the State relied on the report of Hugh Moore, Ph.D., a licensed psychologist who examined Lalor in September 1998.

¶ 5. Moore diagnosed Lalor with pedophilia and anti-social personality disorder. Moore reported that Lalor's test results on the Rapid Risk Assessment for Sexual Offense Recidivism (RRASOR) suggested an approximately 49.8% chance that he would reoffend in the next five years and a 73.1% chance that he would reoffend in the next ten years. Lalor's overall score of five, out of a possible six, indicated a substantial probability to reoffend. Moore's evaluation of Lalor's potential psychopathy using the Psychopathy Checklist-Revised (PCL-R) was consistent with the label of psychopath.

¶ 6. On February 15, 1999, following a probable cause hearing, the trial court made a finding that there was probable cause to believe that Lalor is a sexually violent person. The trial court ordered that Lalor remain in custody for a court-ordered evaluation.

¶ 7. Sheila Fields, Ph.D, conducted the court-ordered evaluation. Fields concluded that Lalor's "mental disorders create a substantial probability that he will commit a sexually violent act as defined by [Wis. Stat.] Chapter 980, and that he is therefore a proper subject for commitment as a sexually violent individual." In arriving at her conclusion, Fields relied on Lalor's Department of Corrections records; the PCL-R; the Hanson (1997) RRASOR; the Minnesota Sex Offender Screening Tool (MnSOST/1997 version); the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R/1998 version); the Violence Risk Appraisal Guide (V-RAG); and discussions and consultations with other individuals.

¶ 8. On May 27, 1999, the trial court appointed Dr. Lynn Maskel as a defense expert to assist Lalor. The matter went to trial in February 2000. Moore, Fields and Maskel testified. While we will later describe their testimony in more detail, Moore and Fields generally testified as to the actuarial data contained in their reports and their conclusions that there is a substantial probability that Lalor will reoffend. Maskel's testimony was limited to exposing the problems associated with the testing instruments employed by Moore and Fields in arriving at the actuarial data they relied on in evaluating Lalor.

¶ 9. In its written decision, the trial court found that Lalor had been convicted of sexually violent offenses in 1984 and 1992; Lalor suffers from a mental disorder; and Lalor is dangerous to others because his mental disorder creates a substantial probability that he will engage in acts of sexual violence. The trial court ordered that Lalor be committed to the custody of the Department of Social Services.

¶ 10. On March 1, 2000, Lalor filed a motion for reconsideration and a new trial on grounds that the trial court erroneously admitted the results of a pl-ethysmograph test and the State had failed to prove beyond a reasonable doubt that Lalor's mental disorder creates a substantial likelihood that he will reoffend. The trial court denied Lalor's motion on April 19, 2000. Lalor appeals.

DISCUSSION

Reliance on Actuarial Data/Sufficiency of Evidence

¶ 11. Lalor first argues that the State failed to prove beyond a reasonable, doubt that there is a substantial likelihood that he will engage in sexually violent acts. Lalor frames this argument in terms of whether the State met its burden of proof, an issue we review de novo. See Hallin v. Hallin, 228 Wis. 2d 250, 258, 596 N.W.2d 818 (Ct. App. 1999) ("Whether a party has met its burden of proof is a question of law which this court may examine without giving deference to the trial court's conclusion."). Lalor acknowledges that in making this determination we defer to the credibility determinations made by the trial court unless the witness is incredible as a matter of law. See id. at 258-59.

¶ 12. Lalor contends that a de novo standard of review is appropriate because his challenge is not that the court erred in considering one expert more credible than another, but rather that the court erred by basing its decision on a misunderstanding of the statistical evidence presented by the expert witnesses. However, Lalor's specific contention that the expert testimony presented by Fields and Moore, premised on statistical evidence, "did not support the finding that Lalor is substantially likely to commit a future sex crime" presents a sufficiency of evidence issue.

¶ 13. In Wisconsin, scientific testimony is admissible if it is an aid to the jury or reliable enough to be probative. Green v. Smith & Nephew AHP, Inc., 2000 WI App 192, ¶ 21, 238 Wis. 2d 477, 617 N.W.2d 881, aff'd, 2001 WI 109, 245 Wis. 2d 772, 629 N.W.2d 727. Once the relevancy of the testimony is established and the witness is qualified as an expert, the reliability of the evidence is a weight and credibility issue for the fact finder and any reliability challenges must be made through cross-examination or by other means of impeachment. Id. Because weight and credibility are left to the fact finder, our role is to determine whether the facts found are sufficient to sustain the trial court's finding that Lalor is a sexually violent person. In doing so, we view the evidence in the light most favorable to the commitment. State v. Kienitz, 227 Wis. 2d 423, 434, 597 N.W.2d 712 (1999). We will not overturn the verdict unless the evidence is so insufficient in probative value and force that no reasonable trier of fact could have found the person to be sexually violent beyond a reasonable doubt. Id.

¶ 14. At the outset, we address Lalor's challenge to the trial court's reliance on the testing instruments. We recently upheld the admission of testimony regarding actuarial instruments in State v. Tainter, 2002 WI App 296, ¶ 20, 259 Wis. 2d 387, 655 N.W.2d 538, noting the trial court's finding that the instruments were "the type of information commonly and reasonably relied up [on] by experts in the field of sex offender risk assessment to draw conclusions about future risk." There, as here, the defendant was free to cross-examine the State's experts regarding the instruments as to their weight and credibility. Id.

■ ¶ 15. Here, Moore testified that he had conducted nine Wis. Stat. ch. 980 evaluations for the Wisconsin Department of Corrections. Moore met with Lalor for approximately two hours in September 1998. In preparation for that meeting, Moore reviewed Lalor's community corrections files, his social services file and his clinical services file. In arriving at his opinion, Moore considered, among other things, reports from other mental health professionals, Lalor's presentence investigation report describing his background, and the dynamics of his last offense.

¶ 16. During the course of that meeting, Moore asked Lalor questions pertaining to his prior sex offenses, how he felt about his previous diagnoses, his family, his drug and alcohol use, and his fantasies. With respect to his prior convictions, Lalor admitted raping a fifteen-year-old girl and molesting two of his nephews. Lalor told Moore that he had committed eighty sexual assaults with approximately ten to twelve victims. Moore additionally testified as to the results of the RRASOR and PCL-R documented in his report. Moore stated his opinion that Lalor is at "a very high likelihood to reoffend."

¶ 17. Fields testified that she has special training in Wis. Stat. ch. 980 work and that she has conducted approximately 132 ch. 980 evaluations. Lalor declined to meet with Fields, but Fields reviewed Lalor's records, including his social background, any psychological evaluations, any testing, correctional information, criminal information and any formal diagnoses.

¶ 18. Fields testified regarding the actuarial tests and results contained in her report. Fields determined that Lalor's score on the RRASOR indicated that approximately 50% of people with a similar score will reoffend after five years and approximately 73% will reoffend after ten years. Like Moore, Fields determined that Lalor met the definition of a psychopath. On the MnSOST, Lalor scored significantly above the high risk mark and on the MnSOST-R, Lalor scored in the moderately high to extremely high range. On the V-RA.G, which assesses the risk of reoffending for any type of violence, Lalor's scores suggested a "seven year reoffending rate ... in the 55 percent range and ten years, 64 percent range." Fields testified to a reasonable degree of psychological certainty that Lalor suffers from paraphilia, pedophilia and anti-social personality disorder.

¶ 19. Fields relied on "a combination of a variety of characteristics" including:

the elevation of the scores on the instruments . . ., the fact that Mr. Lalor has offended against not only children but people his own age but offended against— sexually offended against both males and females, that he's offended outside of his family, that he's used force genital to genital contact in his offending, that even after having been arrested, he goes on to offend and sometimes had at a fairly rapid rate after being released, that he does have this very serious ... antisocial personality disorder, that he seems to have very poor control over all of his impulses, that he did not complete a long-term comprehensive treatment program for sex offending, that he does have this history, when he is released .. . outside of an institution... he seems to have an issue with alcohol.

Based on the above, Fields determined that Lalor is "dangerous and a substantial risk as a sex offender."

¶ 20. Maskel testified that she has consulted on at least twenty Wis. Stat. ch. 980 cases and had a current case load of thirty cases. Maskel testified that she is very familiar with the actuarial instruments used in ch. 980 evaluations. Maskel testified as to problems with the MnSOST and the MnSOST-R, and the limitations of the V-RA.G in predicting sexual violent recidivism. She also offered criticism regarding Fields' report and her diagnosis of Lalor as a psychopath. However, Maskel offered no opinion as to whether she disagreed with Fields' conclusion that Lalor qualified for ch. 980 commitment. Maskel testified on cross-examination that in conducting a ch. 980 evaluation in a case such as Lalor's, she would probably use the RRASOR but would not use the MnSOST. Maskel would also look to deviant sexual arousal and psychopathy but did not have an opinion as to whether Lalor qualifies as a psychopath.

¶ 21. In its written decision, the trial court noted the actuarial data submitted by the experts and the opinion of both Moore and Fields that there is a substantial probability that Lalor will reoffend sexually. Based on our review of the record, we conclude that there is sufficient evidence to support the trial court's finding.

¶ 22. Finally, we turn to Lalor's particular concern that the trial court misunderstood the data as reflecting Lalor's individual propensity to reoffend as opposed to the statistical frequency with which persons with a similar score have reoffended in the past. Lalor points to the trial court's statement that "the RRASOR suggests that there is approximately a 49.8% chance of sexual reoffense in the next five years and a 73.1% chance of sexual reoffense in the next ten years" and that there is a "high probability of reoffense when we look at percentages."

¶ 23. We disagree with Lalor's contention that the trial court did not "personalize" the expert testimony to his individual propensities to reoffend. In its written decision, the court likened Lalor's RRASOR and MnSOST-R scores to those who produced similar scores and who had reoffended in the past. The court wrote that the RRASOR indicated, "those in [Lalor's] position would have a sexual offense recidivism rate of 50% after 5 years and 73% after 10 years" and that the MnSOST-R indicated, "individuals similarly situated as [Lalor], would sexually reoffend in a moderately high range." (Emphasis added.) The court could not predict Lalor's propensities to reoffend in a vacuum. The court required the assistance of the expert testimony and the studies that such experts employ. The court then applied such evidence to Lalor's particular situation.

¶ 24. In the final analysis, the trial court found credible the testimony of two experts who determined that there is a substantial probability that Lalor will reoffend sexually. We review the trial court's findings in the light most favorable to commitment. Contrary to Lalor's argument, the record reflects that the trial court understood the data before it.

¶ 25. The evidence presented was sufficient in probative value and force such that a reasonable trier of fact could find beyond a reasonable doubt that Lalor was a sexually violent person. See Kienitz, 227 Wis. 2d at 434. We uphold the trial court's findings.

Substantive Due Process

¶ 26. Lalor next contends that his right to substantive due process was violated because the trial court did not determine whether he is unable to control his behavior. Whether Lalor's constitutional rights have been violated presents a question of law that we review de novo. See Door County DHFS v. Scott S., 230 Wis. 2d 460, 465, 602 N.W.2d 167 (Ct. App. 1999).

¶ 27. Lalor relies on Kansas v. Crane, 534 U.S. 407, 413 (2002), for the proposition that in cases where lack of control is at issue, "there must be proof of serious difficulty in controlling behavior" and that the mental abnormality causing that difficulty "must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case."

¶ 28. Lalor acknowledges that our supreme court recently considered Crane in Laxton, holding:

Wisconsin ch. 980 satisfies this due process requirement because the statute requires a nexus between the mental disorder and the individual's dangerousness. Proof of this nexus necessarily and implicitly involves proof that the person's mental disorder involves serious difficulty for the person to control his or her behavior. The definition of a sexually violent person requires, in part, that the individual is "dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence." Wis. Stat. § 980.01(7) (emphasis added). As we recognized in [State v. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995)], these statutory requirements do not sweep too broadly. The nexus — linking a mental disorder with dangerousness by requiring that the mental disorder predispose the individual to engage in acts of sexual violence — narrowly tailors the scope of ch. 980 to those most dangerous sexual offenders whose mental condition predisposes them to re-offend.
We conclude that the same nexus between the mental disorder and the substantial probability that the person will engage in acts of sexual violence, necessarily and implicitly requires proof that the person's mental disorder involves serious difficulty for such person in controlling his or her behavior. It is settled law that "substantially probable" means "much more likely than not." State v. Curiel, 227 Wis. 2d 389, 406, 597 N.W.2d 697 (1999). Thus, 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. Chapter 980, therefore, satisfies due process requirements. Proof that a person is sexually violent necessarily and implicitly includes proof that the person's mental disorder includes serious difficulty in controlling his or her behavior, and this requisite proof distinguishes a dangerous sexual offender who has serious difficulty controlling his or her behavior from a dangerous but typical recidivist. Chapter 980 is narrowly tailored to meet compelling state interests.

Laxton, 2002 WI 82 at ¶¶ 22-23. Lalor preserves this issue for further review, arguing that the Laxton holding is incorrect. Lalor argues that it is not inevitable that a person who has a mental disorder such as pedophilia and who has committed sex crimes in the past will have serious difficulty controlling his or her behavior.

¶ 29. Lalor acknowledges that this court is bound by the opinions of our supreme court, see Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997), but contends that Laxton and Crane are in conflict and thus, we are governed by the United States Supreme Court ruling, see State v. Jennings, 2002 WI 44, ¶ 18, 252 Wis. 2d 228, 647 N.W.2d 142. However, Laxton discussed Crane and expressly found that Wis. Stat. ch. 980 law complies with the holding in Crane. Absent a conflict, we remain bound by Laxton.

¶ 30. We conclude that Lalor was not denied his right to substantive due process by the trial court's failure to make an express finding that he is unable to control his behavior.

Proof of Release Date

¶ 31. In Thiel I, our supreme court held that the State is required to prove beyond a reasonable doubt "that the subject of the petition is within 90 days of release or discharge from a sentence imposed on the basis of a sexually violent offense." Thiel I, 2000 WI 67 at ¶ 1. Because Lalor's case had not been finalized prior to the release of Thiel I, Lalor argues that it applies retroactively and his commitment must be reversed because the court did not find that the State proved beyond a reasonable doubt that he was within ninety days of release when his commitment petition was filed.

¶ 32. The State concedes that the record does not contain any evidence regarding the date of Lalor's discharge and that Thiel I should be applied retroactively to Lalor's commitment proceedings. However, the State contends that reversal is not appropriate. Rather, the State argues that consistent with our decision in Thiel II, the case should be remanded for an evidentiary hearing confined to the issue of the timeliness of the petition. Thiel II, 2001 WI App 52 at ¶¶ 9, 30.

¶ 33. In Thiel II, we remanded the case for an evidentiary hearing because the trial court, the State and Thiel all "shared the mistaken belief that it was not necessary to prove beyond a reasonable doubt that Thiel was within ninety days of release." Id. at ¶ 30. Lalor argues that there was no shared mistaken belief in this case and that there would be no justification for holding such a belief because a prudent prosecutor would have recognized the necessity of proving the ninety-day element based on State v. Kienitz, 227 Wis. 2d 423, 429 n.6, 597 N.W.2d 712 (1999); and State v. Curiel, 227 Wis. 2d 389, 396 n.4, 597 N.W.2d 697 (1999), both decided before his trial.

¶ 34. Lalor relies on our statement in Thiel II that the supreme court in Thiel I observed "the result . . . was preordained because both [Kienitz] and [Curiel] correctly stated the law that the State had the burden of proving beyond a reasonable doubt all of the allegations in the petition for commitment, including that the person was within ninety days of discharge." Thiel II, 2001 WI App 52 at ¶ 3. However, even post -Kienitz and Curiel, there was uncertainty regarding the question of whether the State must affirmatively prove that the subject of a Wis. Stat. ch. 980 commitment petition is within ninety days of release or discharge. This is evidenced by our certification of that issue in Thiel I, the supreme court's acceptance of that certification, and the resolution of the uncertainty in Thiel I. We therefore reject Lalor's assertion that this issue was resolved with certainty prior to Thiel I.

¶ 35. Consistent with our decision in Thiel II, we conclude that the proper remedy in this case is to remand for an evidentiary hearing limited to the issue of whether the State can prove beyond a reasonable doubt that Lalor was within ninety days of his release at the time the petition was filed. See Thiel II, 2001 WI App 52 at ¶¶ 30-31.

CONCLUSION

¶ 36. We conclude that there was sufficient evidence to support a finding that Lalor is a sexually violent person within the meaning of Wis. Stat. ch. 980. We further conclude pursuant to Laxton that Lalor's right to substantive due process was not violated by the trial court's failure to expressly find that he is unable to control his behavior. Finally, we conclude pursuant to Thiel I that the State must prove that Lalor was within ninety days of release when the petition in this case was filed. Consistent with Thiel II, we remand for a limited hearing to determine whether the State is able to do so.

By the Court. — Orders affirmed in part; reversed in part and cause remanded.

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

       We note that this appeal has been pending before this court for an unusual amount of time. The notice of appeal in this case was filed on July 17, 2000. Since that time, in addition to short extensions of time limits for filing of briefs, this case was (1) remanded to the trial court to permit Lalor the opportunity to file a motion for a new trial on grounds of ineffective assistance of counsel and have a hearing on that motion; (2) placed on hold pending the United States Supreme Court's decision in Kansas v. Crane, 534 U.S. 407 (2002); and (3) placed on hold pending the Wisconsin Supreme Court's decision in State v. Laxton, 2002 WI 82, 254 Wis. 2d 185, 647 N.W.2d 784, cert. denied, 123 S. Ct. 870 (U.S. Wis. Jan. 13, 2003) (No. 02-6652), in anticipation that it would address the effect of Crane on Wisconsin commitments. The final stay was lifted by order of this court dated July 2, 2002, following the release of the supreme court's decision in Laxton on July 1, 2002.

       We acknowledge, as did the trial court, that there was some dispute as to Lalor's scoring on the MnSOST. However, Fields, who scored the test, testified that Lalor was nevertheless appropriate for commitment.

       We note that Lalor alternatively argues that this case is distinguishable from Laxton because the trial court in this case relied on statistical evidence that was insufficient to show that Lalor is likely to reoffend. Because this argument is addressed earlier in this decision, we do not address it again here.

       We note that Lalor preserves his right to challenge the remand on double jeopardy grounds. This court has addressed and rejected the applicability of the Double Jeopardy Clause to a remand limited to providing the State the opportunity to present competent evidence regarding a release date. State v. Thiel, 2001 WI App 52, ¶ 30, 241 Wis. 2d 439, 625 N.W.2d 321 (Thiel IT).


source: Caselaw Access Project

author: ANDERSON, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jesse H. Swinson, Defendant-Appellant.

    Court of Appeals

      Nos. 02-0395-CR, 02-0396-CR.

      Submitted on briefs December 12, 2002.

    Decided February 26, 2003.

    2003 WI App 45
    (Also reported in 660 N.W.2d 12.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Pamela Pepper, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of William C. Wolford, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, Anderson and Snyder, JJ.

       Petition to review denied 7-9-03.

   ANDERSON, J.

¶ 1. Jesse H. Swinson appeals from a trial court judgment convicting him of fifteen counts of theft by fraudulent misrepresentation contrary to Wis. Stat. § 943.20(1)(d) (1999-2000). He argues that the evidence presented at trial did not support the venue chosen; that the information charging him was multiplicitous; that his rights under the Equal Protection Clause have been violated as a result of the fact that, unlike defendants charged with drug crimes, he had no protection against being prosecuted in both federal and state court for the same acts; and that his trial counsel was ineffective in failing to raise the above issues. Because we disagree with all of Swinson's arguments, we affirm.

Procedural History

¶ 2. On June 9, 1994, the State filed an information charging Swinson with fifteen counts of theft by fraudulent misrepresentation. Swinson moved for dismissal, claiming double jeopardy because he had already been prosecuted in federal court for the same acts alleged in the State's information. On November 16, 1994, the court denied Swinson's motion.

¶ 3. On Februrary 17, 1995, after a jury trial, Swinson was found guilty of fifteen counts of theft by fraudulent misrepresentation. Swinson did not appear at the May 3, 1995 sentencing. On May 17, 1995, the State filed a complaint charging Swinson with bail jumping and a criminal warrant for his arrest was issued. Four years later, on May 17, 1999, Swinson appeared in Sheboygan County Circuit Court where he was advised of the bail-jumping charge and ordered held without bond on the original theft-by-fraud convictions.

¶ 4. On August 6,1999, Swinson pled guilty to the bail-jumping charge and was sentenced to a combined total of twenty-nine years in prison for the theft convictions and the bail-jumping conviction.

¶ 5. On August 23,1999, Swinson filed a Notice of Intent to Pursue Postconviction Relief. On November 20, 2001, he filed an amended motion for a new trial and requested a Machner hearing. After an initial hearing on November 29, 2001, the trial court denied Swinson's arguments of insufficient proof of venue and ineffective assistance of counsel. Shortly thereafter, the court also denied Swinson's arguments on multiplicity and equal protection. Swinson appeals on the same four grounds advanced in his motion for a new trial.

Facts

¶ 6. The evidence adduced at trial is as follows. In 1986 or 1987, Kohler Company hired Swinson as an electrical engineer. Prior to that, Swinson had worked for Kohler on a contractual basis. At some point after being hired as an employee at Kohler, Swinson became heavily involved in the Mill Building Renovation project and eventually became the project manager. Project managers were allowed to contract with outside vendors for goods and services. By the time the Mill Building Renovation project was completed, the cost exceeded the original expectations.

¶ 7. In 1989, Kohler conducted an internal audit, with a partial purpose of determining whether any vendors had sold anything to Kohler that could not be accounted for. As part of this audit, internal audit manager Kevin Kelley obtained documents concerning Dynamic Control Engineering. Dynamic Control Engineering invoices and purchase orders were addressed to the Kohler Company in Kohler, Wisconsin, located in Sheboygan county. Kelley matched up requisitions, purchase orders, invoices, cancelled checks and other relevant documents for a variety of transactions between Kohler and Dynamic Control Engineering.

¶ 8. Kelley testified that Kohler only cut checks and made payments for work performed after the vendor had provided an invoice and there was verification that the work had been performed. He further testified that it would not be unusual for Swinson as the project manager to issue requisitions for purchase and to list his preferred vendor. He said that if there was not an actual "receiving document" to verify work was performed, an invoice initialed by the project manager was a "quite common" form of verification. Kelley testified to occasions where Swinson's initials on an invoice were the only indication that work was performed.

¶ 9. The billing address on the purchase orders from Dynamic Control Engineering was "KOHLER CO. ACCOUNTS PAYABLE DEPT. KOHLER WI 53044." Kohler paid Dynamic Control Engineering for the work specified on the invoices by checks written from a Sheboygan bank account.

¶ 10. Bank records from Valley Bank of Fredonia indicated that Swinson was a signatory on the Dynamic Control Engineering account, and a representative of the bank testified that she had dealt with Swinson in opening the account. FBI analyses of the account records indicated that $264,824.42 in Kohler checks had been deposited into the Dynamic Control Engineering account. The business address for Dynamic Control Engineering at the time was a Mail Plus store. A standard contract rental agreement for a box at the Mail Plus store bore the name and signature of Jesse Swinson for Dynamic Control Engineering.

¶ 11. Kelley next sought to determine whether the goods or services that Dynamic Control Engineering had sold to Kohler were actually on Kohler premises; he gave the task to one of Kohler's engineering management personnel, Charles Edward Farrell. In fifteen instances — those charged in the information— Farrell was unable to find the particular parts and/or services for which Kohler had paid Dynamic Control Engineering. Based on Farrell's findings, Kelley concluded that Dynamic Control Engineering was the only company that sold items to Kohler that could not later be found.

¶ 12. Kelley testified that he had reviewed "gate logs" to see if he could find any documentation proving deliveries of items from Dynamic Control Engineering to Kohler; he could find no such documents. Kelley further testified that he searched for any record of competitive bidding on the Dynamic Control Engineering purchases and could not find any documentation indicating that such bidding had taken place.

¶ 13. In the fall of 1989, Kelley participated in a meeting involving Swinson and his attorney. According to Kelley, the purpose of the meeting was "to allow Mr. Swinson the opportunity to come in and identify any of the products or services that were invoiced by Dynamic Control Engineering." Kelley testified that at the meeting "either Mr. Swinson or his attorney indicated that there was no purpose in going into the plant to find [the products or verify the services in question]." Kelley testified that Swinson and his attorney indicated that it was their belief that the items "were already moved or that something would have been done in order to disguise what might have been performed."

¶ 14. James Vasatka, who preceded Swinson as project manager for the Mill Building Renovation project, testified that there were cost overruns incurred by problems that were encountered along the way, such as processing problems with one of the smelters. John Schiro, the attorney who had represented Swinson in the fall 1989 meeting, testified that during this meeting, Swinson offered to go and physically find the items that Dynamic Control Engineering had sold to Kohler, but that Kohler representatives did not want Swinson to do so.

¶ 15. Swinson testified in his own defense. He stated that in his capacity as project manager at Kohler, he had requisitioned the work on the products or services at issue, and he — -through his company, Dynamic Control Engineering — had either actually done the work listed on the invoices or had provided the products necessary to do the work. Swinson testified that the reason Farrell and others would not have been able to find these items during their inventory of the Kohler facility was because some of the items were "cannibalized" — that is, taken to be used on other projects in different areas. He claimed that other items were delivered but were not installed due to changes in or problems with the project. He said that storage for items of this size was a problem at Kohler and therefore items moved from floor to floor during the day.

¶ 16. Additionally, Swinson said that sometimes design specifications required an item to be rebuilt altogether. He claimed that with certain wiring projects it would be difficult for someone else to tell if any prior work had been done. He stated that during the fall 1989 meeting he asked to schedule a time to "help explain any of the items or what we did with them or how we used them or locate them, if possible." He said that Kohler never scheduled a time for him to do this.

¶ 17. Finally, Swinson admitted that contrary to the bank documents, mailbox rental documents and other Dynamic Control Engineering records, there were no employees working at the company other than he. He admitted that the names used on these documents "came from a group of resumes that I had solicited."

¶ 18. Venue. We address each of Swinson's arguments in order. Swinson contends that the State failed to produce sufficient evidence to show that any of the elements of the offense occurred in Sheboygan county. The State responds that Swinson has waived his ability to challenge venue; however, it does respond to the merits of this challenge. We do reach the merits of Swinson's venue challenge because he also raises an ineffective assistance of counsel challenge, which in part claims that his counsel should have challenged venue.

¶ 19. This court will not reverse a conviction based on the failure of the State to establish venue unless the evidence, viewed most favorably to the State and the conviction, is so insufficient that there is no basis upon which a trier of fact could determine venue beyond a reasonable doubt. State v. Corey J.G., 215 Wis. 2d 395, 407-08, 572 N.W.2d 845 (1998). First, we note that although venue in Wisconsin must be proved beyond a reasonable doubt, it is not an element of the crime, but rather a matter of procedure, which refers to the place of trial. State v. Dombrowski, 44 Wis. 2d 486, 501-02, 171 N.W.2d 349 (1969). Second, venue may be established by proof of facts and circumstances from which it may be reasonably inferred. See Smazal v. State, 31 Wis. 2d 360, 363-64, 142 N.W.2d 808 (1966).

¶ 20. We agree with the trial court that the State produced sufficient evidence to establish venue in She-boygan county. Wisconsin Stat. § 971.19(2) provides: "Where 2 or more acts are requisite to the commission of any offense, the trial may be in any county in which any of such acts occurred." (Emphasis added.) The requisite elements to establish theft by. fraud are:

First, that the defendant made a false representation to (name owner of property).
Second, that the defendant knew that such representation was false.
Third, that the defendant made such representation with intent to deceive and to defraud (name owner of property).
Fourth, that the defendant obtained title to the property of (name owner of property) by such false representation.
Fifth, that (name owner of property) was deceived by such representation.
Sixth, that (name owner of property) was defrauded by such representation.

Wis JI — Criminal 1453.

¶ 21. Thus, the offense of theft by fraud requires "2 or more acts" and if any element occurs in Sheboygan county, then that county can be the place of trial. We agree with the State that the evidence supports that at least one of the elements occurred in Sheboygan county, and therefore venue in that county is proper.

¶ 22. First, the record shows that the invoices were addressed to the Kohler Company at the She-boygan county address and this is sufficient circumstantial evidence to establish that the invoices were received in Sheboygan county. See Smazal, 31 Wis. 2d at 363-64. The record establishes that an element occurred in Sheboygan county because it establishes that Kohler was deceived by Swinson's false representation in Sheboygan county.

¶ 23. Second, the record shows that purchase orders were "billed to" Kohler's accounts payable department at the Sheboygan county address. This is sufficient circumstantial evidence that the relevant checks were cut from the accounts payable department located at the Sheboygan county address. Swinson makes a point of arguing that the bank location from which each check was drawn was not proved by the State; the bank location can be significant to prove venue but is not controlling because also significant is the location where the check is "cut." Once a check is "cut" or signed in Sheboygan county, Kohler has parted with money. That is, it has been defrauded by acting on the false representation in Sheboygan county. This also establishes the occurrence of an element in Sheboygan county.

¶ 24. Swinson makes much of the fact that the State put forth no evidence that the invoices were prepared in Sheboygan county. Swinson admitted that he prepared the invoices — the location where the invoices were prepared is not controlling. It is the act of making the false statement and not the manner in which it is made that is important. Cf. State v. Timblin, 2002 WI App 304, ¶ 30, 259 Wis. 2d 299, 657 N.W.2d 89 (in Timblin, we affirmed a conviction for theft by fraud where all the false statements were passed through a conduit to the victims). We are satisfied that the evidence sufficiently establishes that Kohler was deceived and defrauded in Sheboygan county. The State sufficiently proved venue in Sheboygan county.

¶ 25. Swinson also contends that the trial court erred in failing to instruct the jury on venue. Swinson concedes that the trial court did not do so because he did not request such an instruction. Nevertheless, Swinson contends that the trial court erroneously exercised its discretion in failing to instruct on venue because the State failed to meet its burden of proving venue beyond a reasonable doubt. He also contends that because there was no instruction on venue, he should receive a new trial because the real controversy was not tried. We disagree.

¶ 26. A specific instruction on venue needs to be given only when venue is contested. Wis JI — Criminal 267 n.l. Swinson did not request a specific instruction on venue; therefore, the trial court did not erroneously exercise its discretion in failing to give such an instruction. The real issue in controversy was fully tried; therefore, this case is not appropriate for discretionary reversal. See Wis. Stat. § 752.35. As already discussed, the State proved venue in Sheboygan county.

¶ 27. Multiplicity. Swinson argues that the fifteen counts of theft by fraud were multiplicitous and therefore his conviction on each of these counts violates his double jeopardy rights. The State, as it did with Swinson's venue challenge, responds that Swinson has waived his ability to challenge multiplicity; however, it does respond to the merits as well. Like our decision to reach the merits of Swinson's venue challenge, we will reach the merits of his multiplicity challenge because his ineffective assistance of counsel challenge in part claims that his counsel should have challenged multiplicity.

¶ 28. The double jeopardy clauses of our federal and state constitutions protect against multiple punishments for the same offense. State v. Derango, 2000 WI 89, ¶ 26, 236 Wis. 2d 721, 613 N.W.2d 833. In Derango, the supreme court recently reiterated the standards that guide this court's review of multiplicity challenges:

Multiplicity (and therefore double jeopardy) is implicated only to the extent of preventing a court from imposing a greater penalty than the legislature intended. In other words, because double jeopardy protection prohibits double punishment for the "same offense," the focus of the inquiry is whether the "same offense" is actually being punished twice, or whether the legislature indeed intended to establish separate offenses subjecting an offender to separate, although cumulative, punishments for the same act....
We have established a two-part test for analyzing multiplicity challenges. The first part consists of an analysis under Blockburger v. United States, 284 U.S. 299, 304 (1932), to determine whether the offenses are identical in law and fact.... The second part, which we reach if the offenses are not identical in law and fact, is an inquiry into legislative intent.
The Blockburger test requires us to consider whether each of the offenses in this case requires proof of an element or fact that the other does not. If, under this test, the offenses are identical in law and fact, then charging both is multiplicitous and therefore unconstitutional. If under the Blockburger test the offenses are different in law or fact, a presumption arises that the legislature intended to permit cumulative punishments for both offenses. This presumption can only be rebutted by clear legislative intent to the contrary.

Derango, 2000 WI 89 at ¶¶ 28-30 (citations omitted; emphasis added).

¶ 29. It is only the first part of the multiplicity test that involves the constitutional double jeopardy provisions. State v. Trawitzki, 2001 WI 77, ¶ 22, 244 Wis. 2d 523, 628 N.W.2d 801. If the charged offenses are not identical in law and fact, then we are no longer concerned with a double jeopardy violation. Id. The second part of this test is not a constitutional inquiry, but rather a question of statutory interpretation. Id. The second part of the test focuses on the legislative intent as to the allowable unit of prosecution under the statute in question. Id.

¶ 30. We apply the first part of the multiplicity test and conclude that the charges against Swinson are not identical in law and fact. Both parties concede that the charges are identical in law because they arise under the same criminal statute, Wis. Stat. § 943.20(1)(d). See State v. Anderson, 219 Wis. 2d 739, 747, 580 N.W.2d 329 (1998).

¶ 31. However, the charges against Swinson are not identical in fact, and the parties concede this as well. The test for whether charges are not identical in fact is whether "the facts are either separated in time or of a significantly different nature." Id. at 749. To be of a significantly different nature, each charged offense must require proof of an additional fact that the other charges do not. Id. at 750. In this case, each theft charge against Swinson requires proof of an additional fact that the other charges do not, namely, the proof of the existence of each individual invoice. Because each charge alleges that Swinson falsely represented that a product or service was provided, the State must prove the existence of the specific invoice on which Swinson made this false representation, that the invoice deceived the receiver, Kohler, and that Kohler by acting upon it was defrauded by Swinson's false representation.

¶ 32. Furthermore, the charges are different in fact because they are separated by time and involve separate volitional acts. State v. Davis, 171 Wis. 2d 711, 717, 492 N.W.2d 174 (Ct. App. 1992). Separate volitional acts occur when the offender has sufficient time between acts to reflect on his or her actions and to recommit to the criminal conduct. Id. at 717-18. Here, separate volitional acts occurred because Swinson had sufficient time between preparing each separate invoice to reflect on his actions and to recommit to the criminal conduct. See id.

¶ 33. Having determined that the charges against Swinson are not identical in law and fact, we apply the second part of the multiplicity test: whether the legislature intended multiple offenses to be brought as a single count. Anderson, 219 Wis. 2d at 746. Because the charges against Swinson are not identical in fact, we presume that the legislature intended separate charges for his actions. See id. at 751. Swinson may rebut this presumption only by a clear indication of legislative intent to the contrary. See id. We consider four factors in discerning legislative intent for a multiplicity challenge: "1) statutory language; 2) legislative history and context; 3) the nature of the proscribed conduct; and 4) the appropriateness of multiple punishment." Id. at 751-52.

¶ 34. We apply this, four-factor examination and conclude that Swinson has not overcome the presumption that the legislature intended separate charges for his separate acts of preparing fifteen fraudulent invoices at fifteen different times causing Kohler to be misled and to part with its money on fifteen distinct occasions.

¶ 35. First, the statutory language of Wis. Stat. § 943.20(1) states that one who makes a false representation under that subsection may be penalized as provided in subsec. (3). Paragraph (3)(c) states that if the value of the property exceeds $2500, the violator is guilty of a Class C felony. In this case, each of the fifteen counts involved the theft of money in excess of $2500. The State's theory of the case was that each invoice submitted to Kohler by Swinson's company, Dynamic Control Engineering, was a separate false representation that work had been done for Kohler by that firm for which the firm was entitled to be paid. Swinson argues that under the State's theory of the case, there was only one false representation — that Dynamic Control Engineering was an entity other than Jesse Swinson. However, this is not an accurate description of the State's theory and Swinson does not succeed in advancing it as such. The statutory language does not indicate that the legislature intended these fifteen counts to be charged as one.

¶ 36. The second factor we consider in discerning legislative intent is the legislative history. Swinson informs us in his brief that "counsel was unable to track down the legislative history of section [Wis. Stat. §] 943.20(l)(d)." It is Swinson's burden to rebut the presumption that the legislature intended his actions to be charged separately. His inability to "track down" the legislative history of the statute fails as a sufficient rebuttal to overcome the presumption.

¶ 37. Under this second factor, we also examine the context of the statute. Trawitzki, 2001 WI 77 at ¶ 33. Swinson relies on Trawitzki to show that the context of the relevant statute rebuts the presumption that the legislature intended his acts to be charged separately. Swinson's reliance on Trawitzki to meet his burden of rebuttal is again unsuccessful. Trawitzki is factually distinguishable from the case at bar and, furthermore, rather than help Swinson, its reasoning supports the State's position.

¶ 38. In Trawitzki, members of a criminal gang burglarized a residence. Id. at ¶ 4. Members of the gang took ten firearms from various rooms and wrapped them all in a sheet in order to carry the firearms out of the home. Id. The firearms were then placed in the trunk of a gang member's car and taken to another's residence, where they were stored in the basement. Id. The next morning, several of the gang members took five of the stolen firearms and hid them near a bridge. Id. Subsequently, members of this gang, including Trawitzki, traveled to Minnesota where they were taken into custody near Duluth. Id. Some of the firearms were found in their possession. Id.

¶ 39. The State charged Trawitzki with one count of armed burglary as a party to a crime and in associartion with a criminal gang, in violation of Wis. Stat. §§ 943.10(1)(f), 943.10(2)(b), 939.05, and 939.625(1)(a) (1997-98). Trawitzki, 2001 WI 77 at ¶ 5. The State also charged Trawitzki with ten counts of theft for taking and carrying away a firearm as a party to a crime and in association with a criminal gang, in violation of Wis. Stat. §§ 943.20(1)(a), 943.20(3)(d)5, 939.05, and 939.625(1)(a) (1997-98). Trawitzki, 2001 WI 77 at ¶ 5. Lastly, the State charged Trawitzki with five counts of concealing stolen property as a party to a crime and in association with a criminal gang, in violation of §§ 943.20(1)(a), 943.20(3)(d)5, 939.05, and 939.625(1)(a) (1997-98). Trawitzki, 2001 WI 77 at ¶ 5.

¶ 40. Trawitzki pled not guilty to all charges. Id. at ¶ 6. After a jury found Trawitzki guilty of all charges, he filed a postconviction motion claiming that the charges were multiplicitous and therefore in violation of the constitutional prohibition against double jeopardy. Id. at ¶¶ 1, 10.

¶ 41. In Trawitzki, the supreme court referred to context as the "part of a text or statement that surrounds a particular word or passage and determines its meaning." Id. at ¶ 33 (citation omitted). The Trawitzki court directed that in examining context, we look at the structure of the penalty section of the statute that surrounds the specific penalty provision regarding the type of theft at issue. See id. In the penalty section of the statute, there are three classifications for the taking or concealing of property. Wis. Stat. § 943.20(3). For punishment purposes, these classifications are treated differently. The first classification relates to general property, which is punished according to the value of the property. Sec. 943.20(3)(a)-(c); Trawitzki, 2001 WI 77 at ¶ 33. The second classification relates to property under certain circumstances, such as property taken after a physical disaster, punished as a Class D felony. Sec. 943.20(3)(d); Trawitzki, 2001 WI 77 at ¶ 33. The third classification relates to certain kinds of property, such as a firearm or a domestic animal, punished as a Class D felony. Sec. 943.20(3)(d); Trawitzki, 2001 WI 77 at ¶ 33.

¶ 42. The Trawitzki court concluded: "Since the legislature separated the taking or concealing of a firearm from the taking or concealing of other kinds of property, it follows that the legislature intended separate charges for each firearm involved." Trawitzki, 2001 WI 77 at ¶ 33. It further stated:

The fact that the penalty section of the statute divides property into three classifications leads ... us to reject Trawitzki's argument that absurd results will follow from our decision. According to Trawitzki, the decision to allow multiple charges will lead to arbitrary and absurd results, such as charging a person with two counts of theft for stealing one pair of shoes. This comparison is inappropriate because shoes and firearms are treated differently by the statute. A pair of shoes falls under the first classification, punished according to the value of the property. A firearm falls under the third classification, punished as a Class D felony regardless of the firearm's value. Therefore, a defendant accused of stealing one pair of shoes will be charged according to the value, not the number, of the shoes.

Id. at ¶ 34 (footnote omitted).

¶ 43. Swinson claims that the above reasoning in Trawitzki is "helpful" because it supports the proposition that "in a case of theft of general property — that is, property that is not a firearm or domestic animal [e.g. a pair of shoes, five compact discs] — a defendant may not be charged multiple times for the number of items he takes." We disagree with Swinson's interpretation.

¶ 44. First, Swinson ignores the fact that the court's above reasoning referred to the hypothetical theft of a pair of shoes taken in one episode of theft and the hypothetical theft of five compact discs taken in one episode of theft. His case concerns the theft of fifteen separate amounts of money taken in fifteen distinct episodes of theft. Second, Swinson's interpretation of Trawitzki improperly redefines the second part of the multiplicity test, which states that when the multiple charges against a defendant are not identical in law and fact, we must presume that the legislature intended separate charges for his or her actions. See Anderson, 219 Wis. 2d at 746, 751. Swinson's interpretation is tantamount to the claim that the presumption that the legislature intended separate charges for actions not identical in law and fact exists only in the case of firearm or domestic animal thefts. We cannot agree. Swinson has not convinced us that the legislature or the Trawitzki court intended to narrow the applicability of this presumption. Swinson fails to show by a clear indication of legislative intent to the contrary that in the context of the legislative history, his acts are not meant to be charged separately.

¶ 45. The third factor we examine to determine legislative intent in a multiplicity analysis is the nature of the proscribed conduct. Swinson contrasts his case with Trawitzki, 2001 WI 77 at ¶ 35, in which the court stated that each stolen firearm increased the threat to society. Swinson seems to conclude that the court meant to imply that without a showing of an increased danger to society, multiple charges for multiple acts such as his cannot be considered separately. His conclusion is misguided. Moreover, Swinson ignores that the Trawitzki court was faced with explaining why multiple charges for one episode involving the theft of multiple firearms was not multiplicitous. Swinson's case is distinguishable because each act of preparing each fraudulent invoice occurred at a different time and each fraudulent invoice required a separate volitional act. Swinson has not succeeded in rebutting the presumption that the nature of his conduct is a type meant to be charged separately.

¶ 46. The fourth factor we examine to determine legislative intent in a multiplicity analysis is the appropriateness of multiple punishments. Swinson contends that multiple punishments were not appropriate because he faced a maximum penalty of 150 years' imprisonment. We again disagree. If Swinson were charged with only one count, there would be no deterrent to continued criminal activity. See State v. Grayson, 172 Wis. 2d 156, 166, 493 N.W.2d 23 (1992). Moreover, multiple punishments would provide proportionality between the harm caused and the punishment received. See id. at 166-67. The total money obtained from Kohler by Swinson was approximately $250,000. Swin-son has not convinced us that he should not be subject to a greater penalty than one who obtains $2501 from a fraud victim.

¶ 47. Swinson has failed to show a clear indication of legislative intent that there be no multiple charges or multiple punishments for his actions under Wis. Stat. § 943.20(l)(d). The charges are not multiplicitous.

¶ 48. Equal Protection. Swinson claims that his equal protection rights were violated when he was prosecuted by the State after being prosecuted federally for the same acts. In particular, Swinson contends that:

[The] application of Wis. Stat. § 939.71, after the Supreme Court's decision in [State v. Hansen, 2001 WI 53, 243 Wis. 2d 328, 627 N.W.2d 195], denies him equal protection of the law, in violation of the Equal Protection Clause of the Fourteenth Amendment. Specifically, Swinson argues that after [Hansen], defendants who have been prosecuted in another jurisdiction for controlled substances offenses are protected from subsequent prosecution in Wisconsin under Wis. Stat. § 961.45, while defendants who are charged with non-drug offenses do not have that protection, and may be charged with violations of Wisconsin law even after they have been convicted or acquitted for the same act in another jurisdiction.

¶ 49. We first discuss the statutes referenced in Swinson's equal protection argument — Wis. Stat. §§ 939.71 and 961.45. Section 939.71 provides:

If an act forms the basis for a crime punishable under more than one statutory provision of this state or under a statutory provision of this state and the laws of another jurisdiction, a conviction or acquittal on the merits under one provision bars a subsequent prosecution under the other provision unless each provision requires proof of a fact for conviction which the other does not require.

Under this statute, a subsequent prosecution is not prohibited if each provision requires proof of a fact for conviction which the other does not require, even if the same conduct was involved in the two prosecutions. In contrast, § 961.45 provides:

If a violation of this chapter is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.

The supreme court interpreted § 961.45 in Hansen. There, the court held that a person covered by § 961.45 could not be prosecuted in state court for a drug offense after a federal prosecution for the same act even if the provisions under which the two jurisdictions prosecuted the person were not the same. Hansen, 2001 WI 53 at ¶¶ 1, 4.

¶ 50. Based on Hansen, Swinson concludes "there is no rational basis to support the disparate impact of section 939.71 in contrast to section 961.45." He argues that drug offenders should not enjoy greater protection from multiple prosecutions than non-drug offenders.

¶ 51. The State counters that the equal protection issue was not raised before or at trial and is waived; the State also responds to the merits. We choose to reach the merits. On the merits, the State argues that the "legislature reasonably could have chosen to provide more protection for drug defendants from dual prosecution than for other defendants because it recognized that federal authorities are more likely to be involved in drug prosecutions than in prosecutions relating to other state crimes." The State concludes that there are plausible explanations for the classification made by the two statutes, that therefore a rational basis exists for the classification and that Swinson has failed to prove the unconstitutionality of the classification.

¶ 52. We agree with the State that Swinson has failed to prove the unconstitutionality of the application of Wis. Stat. § 939.71. However, we provide additional explanation. In reaching our conclusion, we are guided by the supreme court's analysis regarding Wis. Stat. § 161.45 (1991-92) in State v. Petty, 201 Wis. 2d 337, 357-60, 548 N.W.2d 817 (1996). In Petty, the issue was whether Petty's plea to a federal charge of conspiracy to distribute cocaine required that his earlier state conviction for possession of cocaine with intent to deliver be vacated under the terms of § 161.45 (1991-92). Petty, 201 Wis. 2d at 342-43.

¶ 53. In its analysis, the Petty court observed that "the language of the statutory bar to prosecution within the Controlled Substances Act clearly indicates the legislature's intent to abolish the dual sovereignty doctrine by statute, with regard to substantially identical drug offenses based on the same act." Id. at 357-58. However, the court also noted "[t]he United States Supreme Court and courts of numerous states have held that a state prosecution following a federal prosecution does not constitute a violation of the defendant's constitutional protection against being placed in double jeopardy." Id. at 358 (emphasis added). In Abbate v. United States, 359 U.S. 187, 194 (1959), the United States Supreme Court discussed the doctrine of dual sovereignty, observing:

"We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory.... Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other."
"It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the Federal Government... and the double jeopardy therein forbidden is a second prosecution under authority of the Federal Government after a first trial for the same offense under the same authority." (Citation omitted.)

¶ 54. The Petty court acknowledged that despite this directive regarding the doctrine of dual sovereignty, a number of states, focusing upon the individual's interest in being free from repeated prosecutions for the same alleged acts, have enacted legislation aimed at alleviating continued prosecution, depending upon the similarity of the state and federal charges and upon whether the state and federal laws were designed to protect the same governmental interests. Petty, 201 Wis. 2d at 358-59. The court then concluded that Wis. Stat. § 161.45 (1991-92) "is representative of the type of legislation instituted by those jurisdictions precluding continuing prosecution, as permitted under the doctrine of dual sovereignty." Petty, 201 Wis. 2d at 359.

¶ 55. We note that while Wis. Stat. § 939.71 adheres to the dual sovereignty doctrine, Wis. Stat. § 961.45 does not. We therefore conclude, as the supreme court did in Petty, that § 961.45 is representative of the type of legislation instituted by our legislature seeking to preclude continuing prosecution in the drug arena as is otherwise permitted under the doctrine of dual sovereignty. See Petty, 201 Wis. 2d at 358-59. That is, in deciding not to abrogate the dual sovereignty doctrine in nondrug cases, the legislature could have rationally considered that in the nondrug arena the interests of the state and federal governments are different. Swinson has not persuaded us of the unconstitutionality of § 939.71 as applied to him.

¶ 56. Ineffective Assistance. Swinson's last claim is that his trial counsel's performance was ineffective because he failed to raise the issue of insufficiency of the evidence regarding venue and the issue of multiplicity. Accordingly, he argues that his conviction must be reversed. We do not agree.

¶ 57. We review the circuit court's findings of fact regarding counsel's conduct under a clearly erroneous standard. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711 (1985). Whether those facts constitute deficient performance and prejudice are questions of law that we review independently. State v. Tulley, 2001 WI App 236, ¶ 5, 248 Wis. 2d 505, 635 N.W.2d 807, review denied, 2002 WI 2, 249 Wis. 2d 581, 638 N.W.2d 591 (Wis. Dec. 17, 2001) (No. 00-3085-CR).

¶ 58. The test for ineffective assistance of counsel has two prongs: (1) a demonstration that counsel's performance was deficient, and (2) a demonstration that the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient performance, a defendant must establish that his or her counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. The defendant must overcome a strong presumption that his or her counsel acted reasonably within professional norms. State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990). To satisfy the prejudice prong, the defendant must show that counsel's errors were serious enough to render the resulting conviction unreliable. Strickland, 466 U.S. at 687. We need not address both components of the test if the defendant fails to make a sufficient showing on one of them. Id. at 697.

¶ 59. We easily dispose of Swinson's ineffective assistance of counsel argument. It is apparent from our earlier discussion of venue and multiplicity that a motion raising either of these issues would have been unsuccessful. Thus, Swinson has not shown that the resulting conviction on either of these issues is unreliable. See id. at 687. Our discussion is therefore complete — Swinson fails to make a sufficient showing on one prong of the test for ineffective assistance of counsel, so we need not address the other prong. See id. at 697. Trial counsel's failure to bring a meritless motion does not constitute deficient performance. State v. Wheat, 2002 WI App 153, ¶ 14, 256 Wis. 2d 270, 647 N.W.2d 441, review denied, 2002 WI 111, 256 Wis. 2d 65, 650 N.W.2d 841 (Wis. July 26, 2002) (No. 01-2224-CR).

¶ 60. Swinson was properly convicted of fifteen counts of theft by fraudulent misrepresentation contrary to Wis. Stat. § 943.20(l)(d). We hold that the evidence presented at trial supports the venue chosen and that the information charging Swinson was not multiplicitous. We further hold that Swinson's rights under the Equal Protection Clause have not been violated as a result of the fact that, unlike defendants charged with drug crimes, he did not have protection against being prosecuted in both federal and state court for the same acts. Finally, we do not deem his trial counsel ineffective in failing to raise the above issues.

By the Court. — Judgment and order affirmed.

       Wisconsin Stat. § 943.20(l)(d) (1999-2000) provides that whoever does the following may be penalized under the statute:
      Obtains title to property of another person by intentionally deceiving the person with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made. "False representation" includes a promise made with intent not to perform it if it is a part of a false and fraudulent scheme.
      All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       In 1991, a federal grand jury indicted Swinson on seventeen counts of mail fraud. In 1993, a jury convicted Swinson of mail fraud in violation of 18 U.S.C. § 1341 concerning a scheme whereby Swinson had defrauded the Kohler Company of nearly $300,000. United States v. Swinson, 993 F.2d 1299, 1300 (1993).
      The case was appealed and the Seventh Circuit Court of Appeals concluded that the prosecution failed to produce sufficient evidence of a mailing. Id. at 1303-04. The court reversed and remanded with instructions for the district court to enter a judgment of acquittal. Id.

       Swinson's brief explains that the time lag between his Notice of Intent to Pursue Postconviction Relief and his post-trial motions occurred because of difficulties he had with obtaining counsel.

        State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).

       Tom Hodgert, who was appointed electrical manager after Swinson left Kohler, also conducted an audit under the new project manager, Tony Bartel. His findings were similar to those of Farrell. Bartel gave similar testimony at trial.

       The language of Wis. Stat. § 161.45 (1991-92) is identical to the language in Wis. Stat. § 961.45 (1999-2000):

        If a violation of this chapter is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.


text:
    State of Wisconsin, Plaintiff-Respondent, v. Wyatt Daniel Henning, Defendant-Appellant.
    Court of Appeals

      No. 02-1287-CR.

      Submitted on briefs January 23, 2003.

      Decided February 26, 2003.

    2003 WI App 54
    (Also reported in 660 N.W.2d 698.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jack E. Schairer, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Stephen W. Kleinmaier, assistant attorney general.
    Before Nettesheim, PJ., Brown and Snyder, JJ.

       Petition to review granted.

   NETTESHEIM, PJ.

¶ 1. This case brings to mind the words of the poet Robert Burns:

The hest-laid schemes o'mice an' men
Gang aft a-gley

¶ 2. The State charged Wyatt Daniel Henning with three counts of bail jumping and two counts of possession with intent to deliver a controlled substance. The basis for the bail jumping charges was Henning's alleged commission of the possession with intent to deliver charges. Pursuant to a stipulation between Henning and the State, the trial court instructed the jury that Henning had no defense to the bail jumping charges if the jury found him guilty of either of the possession with intent to deliver charges. The jury, however, threw a monkey wrench into this well-intended effort to narrow the issues by asking whether Henning could be found guilty of the bail jumping charges based upon simple possession of controlled substances as opposed to possession with intent to deliver. Over Henning's objection, the trial court instructed the jury that it could do so. The jury then returned verdicts of guilty on the bail jumping charges, but not guilty on the possession with intent to deliver charges.

¶ 3. Henning appeals from the bail jumping convictions and from an order denying postconviction relief. Henning argues that the trial court's answer to the jury's question was contrary to the parties' stipulation which told the jury that Henning's fate on the bail jumping charges rested exclusively on the jury's resolution of the possession with intent to deliver charges. According to Henning, this created a risk that the jury's guilty verdicts on the bail jumping charges might be based on noncriminal conduct or that the verdicts might not be unanimous.

¶ 4. We agree. When the trial court allowed the jury to consider the crimes of simple possession of a controlled substance, the court did not provide the jury with any accompanying instructions regarding the law of lesser-included offenses. Nor did the court provide the jury with any verdicts inquiring as to such crimes. As a result, the grounds for the jury's determination that Henning had violated the conditions of his bond are uncertain. We reverse the bail jumping convictions. We also hold that Henning's double jeopardy protections bar a remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 5. On January 25, 2001, the Burlington police department was aware of an outstanding Racine county arrest warrant for Henning. On that day, Burlington police officer David Krupp observed a person, later identified as Jeff Willis, going to and from a vehicle parked across the street from a McDonald's restaurant. The vehicle was registered to Henning's brother, Heath, and to Henning's mother. Krupp had also been advised by another officer that other persons from the restaurant had entered the vehicle. Krupp stopped the vehicle and observed four occupants. Heath was the driver, and Henning and Willis were in the backseat. Krupp arrested Henning on the outstanding warrant. A search of Henning revealed a cell phone, charger, postal scale, a piece of paper with numbers on it, and $30. Krupp also discovered suspected marijuana and LSD packaged in a fashion ready for delivery in the armrest between the backseats. Heath was also searched, revealing $260 on his person.

¶ 6. The police had stopped this same vehicle operated by Heath the night before. Marijuana was found in the vehicle at that time. Heath admitted that the marijuana was his. Henning was not in the vehicle at that time.

¶ 7. Willis stated that he saw a "bag of weed" in the backseat when he entered the vehicle and that he saw Henning place the drugs in a package and put the package in the armrest. Willis said that he believed the drugs belonged to Henning.

¶ 8. Prior to these events, Henning had been released under conditions of release in two misdemeanor cases and one felony case. Pursuant to Wis. Stat. §§ 969.02(4) and 969.03(2) (1999-2000), one condition of release was that Henning "shall not commit any crime." Therefore the State charged Henning not only with possession of a controlled substance (THC) with intent to deliver pursuant to Wis. Stat. § 961.41(lm)(h)l, and possession of a controlled substance (LSD) with intent to deliver pursuant to § 961.41(lm)(f)3, but also two counts of misdemeanor bail jumping and one count of felony bail jumping pursuant to Wis. Stat. § 946.49(l)(a) and (b), respectively.

¶ 9. The matter proceeded to a jury trial. Prior to the presentation of evidence, Henning and the State stipulated in writing that if the jury found Henning guilty of either of the possession with intent to deliver charges, Henning had no defense to the bail jumping charges. The trial court approved the stipulation, and the State advised the jury of the stipulation during its opening statement. The State also reminded the jury that Henning was not charged with simple possession of the controlled substances, but rather with possession with intent to deliver the substances. As a result, the evidence in the case focused exclusively on the possession with intent to deliver charges, not the bail jumping charges.

¶ 10. During his final argument to the jury, Henning's counsel echoed the State's opening statement, cautioning the jury that it could not premise any findings of guilt on any of the charges based upon a determination that Henning merely possessed the controlled substances. Rather, counsel reiterated that the charges against Henning were possession with intent to deliver and that those charges were also the basis for the bail jumping charges.

¶ 11. In its final instructions, the trial court instructed the jury per the parties' stipulation that if the jury found Henning guilty of either of the possession with intent to deliver charges, Henning had no defense to the bail jumping charges. The trial court did not instruct the jury under the law of simple possession of a controlled substance, nor did the court provide any instructions under the law of lesser-included offenses. Likewise, the verdicts submitted to the jury did not address simple possession of controlled substances. Instead, the instructions and the verdict were limited to the charges alleged in the information and those addressed by the parties at trial — possession with intent to deliver controlled substances and bail jumping.

¶ 12. The first sign that the parties' and the trial court's "best laid scheme" might go awry arose during the deliberations when the jury inquired as to the conditions of Henning's release. The State contended that the proper response was that Henning was not to commit any further crimes. Henning contended that the proper response was to remind the jury of the parties' written stipulation that a finding of guilty on the bail jumping charges had to be premised on a finding of guilty on either of the possession with intent to deliver charges. The trial court adopted the State's proposal and advised the jury, "the condition of the bond was that [Henning] not commit a new crime while out on bond such as possession with intent to deliver LSD or THC."

¶ 13. Shortly thereafter the jury returned with a further question, asking whether it could find Henning guilty of bail jumping on the basis of simple possession of controlled substances as opposed to possession with intent to deliver. The State asked that the trial court answer this question "yes." Henning asked that the trial court answer the question "no." In support, Henning noted that he had tried the case based on the stipulation which provided that the predicate for the bail jumping charges was his alleged possession of the controlled substances with intent to deliver charges, Henning also noted that he had argued to the jury that the charge against him was not mere possession of the controlled substances, but rather possession with intent to deliver.

¶ 14. The trial court adopted the State's argument and answered the question "yes." The court did not' give any further instructions relating to the law of lesser-included offenses. Nor did the court provide the jury with any verdicts pertaining to simple possession of controlled substances.

¶ 15. The jury returned verdicts finding Henning not guilty of the possession with intent to deliver controlled substances charges, but guilty of the bail jumping charges. Following the denial of his postverdict motions, Henning takes this appeal.

DISCUSSION

¶ 16. Henning offers two principal arguments in support of his request for outright reversal of the bail jumping convictions. First, Henning contends that there is no certainty that the jury based the bail jumping guilty verdicts on his commission of a further crime. Second, Henning argues that even if the jury found criminal conduct, there is no certainty that the jury unanimously agreed as to such conduct.

¶ 17. The State responds that Henning has no reason to fear that the jury premised the bail jumping verdicts upon noncriminal conduct. In support, the State correctly notes that the jury's inquiry as to the possible basis for finding Henning guilty of bail jumping was not open-ended. Instead, the jury inquired whether a guilty verdict on the bail jumping charges could be premised upon mere possession as opposed to possession with intent to deliver. As to Henning's unanimity concern, the State correctly notes that the THC and the LSD were packaged together in a single container. From this the State reasons that Henning's possession of one also constituted possession of the other.

¶ 18. While the State's responses are all borne out by the record, they do not ameliorate the fundamental problem posed by the facts of this case. Henning's defense to the bail jumping charges rested squarely on his defense to the possession with intent to deliver charges. To that end, the parties stipulated that Hen-ning had no defense to the bail jumping charges if the jury found him guilty of either of the possession with intent to deliver charges. The State informed the jury of this stipulation in its opening statement and further reminded the jury that Henning was not charged with mere possession of controlled substances, but rather with possession with intent to deliver those controlled substances.

¶ 19. As a result, the evidence in the case focused exclusively on the facts and circumstances pertaining to the possession with intent to deliver charges. At the jury instructions conference, neither the State nor Henning sought any lesser-included offenses pertaining to simple possession of the controlled substances. Nor did the trial court broach that subject. Echoing the State's opening statement, Henning's final argument reminded the jury that Henning was not charged with mere possession of controlled substances and cautioned that the jury could not premise a guilty verdict upon a belief that Henning had merely possessed the controlled substances. The State never disputed these statements in its rebuttal argument and never argued for guilty verdicts premised upon simple possession of a controlled substance.

¶ 20. As the trial court noted, the jury's question functionally transformed this case into a lesser-included offense case. And therein lies the fundamental problem. While the jury instructions on the possession with intent to deliver offenses included language regarding simple possession, see Wis JI — CRIMINAL 6035, the jury was not provided the "bridging" or "transition" instructions set out in Wis JI — Criminal 112 for lesser-included offenses. As a result, the jury was not provided any guidance as to how it should conduct its deliberations in such a setting. In addition, and more troubling, is the absence of any verdicts pertaining to simple possession of a controlled substance.

¶ 21. Given the State's failure to seek a lesser-included offense, we can only assume that the State saw this case as an "all or nothing" contention that Henning possessed the controlled substances for purposes of delivery. Consistent with that approach, the State entered into the stipulation providing that Henning's violation of his bond rested on these same grounds, and the State stressed that point in its opening statement to the jury. We do not quarrel with the State's right to make this strategic choice. But having made it, the State has to live with it.

¶ 22. We also note that when the State prevailed upon the trial court, over Henning's objection, to allow the jury to consider the lesser-included offense of simple possession of controlled substances, the State did not seek any supplemental instructions relating to the law of lesser-included offenses. Nor did the State seek verdicts inquiring as to such charges.

¶ 23. Admittedly, it is an open question whether Wisconsin law would even permit the introduction of a lesser-included offense after the jury has commenced its deliberations. But having persuaded the trial court to adopt such a procedure, the State should have perceived the necessity for such additional instructions and verdicts. This was especially so in this case where the parties had stipulated that Henning's fate on the bail jumping charges rested squarely on the jury's verdicts on the possession with intent to deliver charges. If the verdicts on those greater charges were to be supplanted by the lesser charges, the jury should have been provided verdicts as to those lesser charges. Because such verdicts were not provided, we have no documentation of the jury's supposed determination that Henning possessed controlled substances.

¶ 24. The prejudice to Henning is compounded by the fact that Henning's counsel correctly reminded the jury in his final argument (as did the State in its opening statement) that Henning was not charged with simple possession. Relying on the parties' stipulation, counsel therefore properly cautioned the jury that it could not premise any guilty verdict upon a finding of simple possession. However, when the trial court later authorized the jury to find Henning guilty of bail jumping based on simple possession, Henning's final argument on this point was thoroughly discredited and he was made to look the fool.

¶ 25. We appreciate that State v. Hauk, 2002 WI App 226, 257 Wis. 2d 579, 652 N.W.2d 393, review denied, 2002 WI 121, 257 Wis. 2d 122, 653 N.W.2d 893 (Wis. Sept. 18, 2002) (No. 01-1669-CR), holds that a bail jumping conviction premised upon the commission of a further crime does not require proof of conviction of the further crime, but does require "evidence sufficient to allow a reasonable jury to conclude beyond a reasonable doubt that [the] defendant intentionally violated his or her bond by committing a crime." Id. at ¶ 19. We think it self-evident that when a bail jumping charge is premised upon the commission of a further crime, the jury must be properly instructed regarding the elements of that further crime. We think it equally self-evident that when a bail jumping charge is premised upon the commission of a lesser-included offense of such further crime, the jury must be properly instructed under the law of lesser-included offenses.

¶ 26. The question in this case is not the sufficiency of the evidence. In fact, we would readily uphold a jury verdict finding Henning guilty of bail jumping based upon the lesser-included crime of possession of controlled substances. Rather, the question here is whether the jury was adequately instructed as to that lesser-included offense. We hold it was not.

¶ 27. In addition, we have already noted the problem posed by absence of any verdicts pertaining to the lesser-included offense. In the ordinary bail jumping case, the trial court need not submit a separate verdict inquiring as to the defendant's guilt on the further crime. But where, as here, the further crime is separately charged and the court decides to submit a lesser-included offense, we conclude that the jury must be provided verdicts inquiring as to the lesser-included offense. Without such guidance and focus, we cannot confidently state: (1) that the jury premised its verdict upon criminal conduct; or (2) even if premised upon criminal conduct, that the verdict was unanimous.

¶ 28. In the final analysis, we are asked to uphold an undocumented lesser-included jury finding based upon incomplete lesser-included jury instructions. We cannot do that.

¶ 29. That brings us to the question of the remedy. The State argues that if we reverse Henning's bail jumping convictions, we should remand for a new trial. However, two offenses are considered the "same offense" for double jeopardy purposes unless each offense requires proof of a fact that the other does not. Dowling v. United States, 493 U.S. 342, 355 (1990) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)). The core protection of the Double Jeopardy Clause attaches to an acquittal and prohibits retrial for the "same offense" after an acquittal. Dowling, 493 U.S. at 355. Pursuant to the "elements only" test of Blockburger, possession of a controlled substance is clearly a lesser-included offense of the greater offense of possession of a controlled substance with intent to deliver. Since Hen-ning has been acquitted of the greater offense, he cannot be retried for bail jumping based on a lesser-included offense. We reverse outright.

By the Court. — Judgments and order reversed.

       Burns, Robert, "To A Mouse, On Turning Her Up in Her Nest With The Plough." "Gang aft a-gley" translates to "go off the planned line."

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

       Wisconsin Stat. § 946.49(1) (a) and (b) provides that if the charge on which the defendant has been released is a misdemeanor, the ensuing bail jumping charge is a misdemeanor, and if the charge on which the defendant has been released is a felony, the ensuing bail jumping charge is a felony. In other words, the degree of the bail jumping charge is determined by the degree of the original charge, not by the degree of the new charge.

       Henning also requested that the trial court provide the jury with the parties' written stipulation.

       In his original brief, Henning argued for reversal and remand for a new trial on the bail jumping charges. In a supplemental brief, Henning argued for outright reversal.

       Henning bases this argument on the fact that he was charged with possession with intent to deliver THC and possession with intent to deliver LSD. He reasons that some of the jurors may have believed he possessed THC, while others may have believed he possessed LSD.

       Bail jumping consists of three elements: (1) the defendant was previously arrested for a felony or misdemeanor; (2) the defendant was previously released from custody on bond; and (3) the defendant intentionally failed to comply with the terms of the bond. Wis. Stat. § 946.49; Wis JI — CRIMINAL 1795. By the stipulation, Henning conceded the first two elements and disputed the third.

       Henning cannot be faulted with failing to seek these measures since he had objected on a threshold basis to the trial court's submission of the lesser-included offenses.

       Courts from other jurisdictions have approved this procedure in the appropriate case. In United States v. Welbeck, 145 F.3d 493 (2nd Cir. 1998), the court approved such a procedure after examining the law of other jurisdictions, noting that "[t]he weight of state authority holds that 'it would not be appropriate to adopt a per se rule which would declare the belated giving of any [lesser included offense] instruction to be prejudicial error.' " Id. at 496 (citation omitted). In those cases where a reversal has occurred, it is not because the practice is forbidden per se, but rather because the defendant was prejudiced under the particular facts of the case (i.e., the procedure coerced a deadlocked jury, the defendant was denied an opportunity to address the jury regarding the belated lesser-included offense, or the defendant made strategic concessions in the original jury summation which were damaging to the later lesser-included offense). See id. at 497.

       In State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998), the defendant was convicted of obstructing an officer and of bail jumping premised upon the obstructing charge. Id. at 233. The supreme court reversed the obstructing conviction because the defendant was denied the right to a jury trial. Id. at 243. The court additionally reversed the bail jumping conviction because "the bail jumping conviction was premised solely upon the Defendant's obstructing conviction." Id. at 245.