author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Appellant-Cross-Respondent, v. James F. Brienzo, Defendant-Respondent-Cross-Appellant.

    Court of Appeals

      No. 01-1362-CR.

      Submitted on briefs June 24, 2003.—

      .Decided September 10, 2003.

    2003 WI App 203
    (Also reported in 671 N.W.2d 700.)

      On behalf of the plaintiff-appellant-cross-respondent, the cause was submitted on the briefs of Peggy A. Lautenschlager, attorney general, and Jeffrey J. Kassel, assistant attorney general.
    On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the briefs of Jerome F. Buting of Buting & Williams, S.C., of Brook-field.
    Before Anderson, PJ., Brown and Nettesheim, JJ.

       Petition to review denied 11-17-03.

   BROWN, J.

¶ 1. This case arises from a prosecution for child enticement and attempted sexual assault resulting from an ongoing Internet "sting" operation conducted by the Wisconsin Department of Justice. The State appeals from an order dismissing the charge, against James F. Brienzo for child enticement and Brienzo cross-appeals from the order, which denied his motion to dismiss the charge of attempted sexual assault.

¶ 2. The primary issue in the State's appeal is whether the circuit court erred in determining that the First Amendment barred the application of Wis. Stat. § 948.07 (2001-02), the child enticement statute, to Brienzo's conduct because the alleged child enticement was initiated over the Internet without any face-to-face contact. We conclude that pursuant to State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287, a case decided after the circuit court issued the order, the application of the child enticement statute to Brienzo's alleged attempt to entice a child over the Internet does not violate his First Amendment constitutional rights. We also conclude that the complaint charges Brienzo with attempted child enticement, not the completed act of child enticement, and alleges sufficient facts to establish probable cause that Brienzo attempted to entice a child. Accordingly, we order that the circuit court, on remand, reinstate the child enticement charge.

¶ 3. In his cross-appeal challenging the denial of his motion to dismiss the attempted sexual assault charge, Brienzo raises an issue of first impression in Wisconsin. Brienzo submits that the charge of attempted sexual assault of a child by means of sexual intercourse is an impermissible prosecution of an attempt to commit a crime that lacks an element of specific intent. We hold that although attempted sexual assault of a child by means of sexual intercourse does not contain a formal element of intent, sexual intercourse necessarily involves intentional touching and, therefore, attempted sexual assault of a child by means of sexual intercourse is a crime known to law. Brienzo also challenges the circuit court's denial of his motion to dismiss on several other grounds, arguing that: (1) the attempted sexual assault charge is duplicitous and must be dismissed, (2) the attempted sexual assault charge is unconstitutional as applied to the facts of this case, and (3) the complaint fails to establish probable cause that Brienzo attempted to sexually assault a child. We conclude that even if the attempted sexual assault charge is duplicitous, the remedy for an improper charging document is not to dismiss the complaint, but rather to require the State to elect the alternative it will pursue at trial. We also conclude that the attempted sexual assault statute is constitutional as applied to Brienzo's conduct and the complaint alleged facts sufficient to establish probable cause that he attempted sexual assault. Accordingly, we affirm the order denying the motion to dismiss the sexual assault charge and remand for proceedings consistent with this opinion.

¶ 4. The complaint alleges that a special agent of the Wisconsin Department of Justice, while working in an undercover capacity, signed onto America Online as "Alexl4t00." Alexl4t00's AOL profile, which was available to all AOL users, identified Alexl4t00 as a fourteen-year-old boy named Alex who was a freshman in high school. While logged onto AOL, Alex received an instant message from an AOL user with the screen name "LiftMetal." LiftMetal is the screen name assigned to Brienzo, whose AOL profile identified him as a forty-six-year-old man from Blue Island, Illinois. LiftMetal told Alex that he had been checking his profile and asked Alex to exchange pictures. Alex agreed and sent a picture of a sheriffs deputy when the deputy was about fifteen years old. LiftMetal sent a picture of himself wearing only white shorts.

¶ 5. LiftMetal told Alex that he would be driving past Racine and said he wanted to meet Alex. Alex agreed. LiftMetal told Alex that he wanted to kiss, masturbate and engage in oral sex with Alex. LiftMetal suggested going to a hotel and asked Alex if there were any in the area. The two agreed to meet that evening at a Dairy Queen in the town of Mount Pleasant. Lift-Metal said that he would be driving a black Camaro. Law enforcement officers placed the Dairy Queen under surveillance but did not observe a black Camaro.

¶ 6. The next day LiftMetal sent Alex an email stating that he had been at the meeting place, but "freaked out cause [I] saw two guys sitting in their car and thought something funny was up." On the following day, LiftMetal sent Alex an email in which he said that he would be in Milwaukee the next week and asked Alex if he wanted to meet. The two agreed to meet the following week at a McDonald's restaurant in Racine county; LiftMetal noted that there were hotels in that area. LiftMetal sent Alex a photograph in which he was pulling down his briefs past his buttocks and almost past his penis.

¶ 7. LiftMetal and Alex had several online conversations over the next two days in which they finalized their plan to meet at the McDonald's at 6:30 p.m. on January 19, 2001. The two discussed what they would do sexually after they met. Alex told LiftMetal that he loved "69," which LiftMetal said was cool with him too. Alex told LiftMetal that he never "did anal" and Lift-Metal responded that it was not a problem and they did not have to do that together. LiftMetal also stated, "We will have fun, we'll have to shower together ... I love showering with another guy." On January 19, police officers set up surveillance at a McDonald's located in Mount Pleasant. At approximately 6:30 p.m., Brienzo entered the restaurant, where he was arrested. The police identified Brienzo by a picture that LiftMetal had sent to Alex. Brienzo told the police that he had an AOL account, that he was a math teacher at a Chicago area high school, and that he had been at the Dairy Queen on January 13 at about 6:30 p.m.

¶ 8. Brienzo was charged in a criminal complaint with child enticement contrary to Wis. Stat. § 948.07 and attempted sexual assault of a child by means of "sexual contact or sexual intercourse" contrary to Wis. Stat. §§ 948.02(2), 939.50(3)(6c), and 939.32. He filed a motion to dismiss those charges, arguing that the complaint failed to state probable cause as to either count, that the complaint was jurisdictionally defective because the counts were charged in the disjunctive, and that the charges were unconstitutional as applied to the facts of this case. The circuit court granted the motion with respect to the child enticement charge, but denied it with respect to the attempted sexual assault charge. This appeal and cross-appeal followed.

¶ 9. The standards of review relevant to this appeal are as follows. The applicability of the child enticement statute to an Internet "sting" operation that involves an adult undercover officer posing online as a child is a question of law that we review de novo. See State v. Jensen, 2000 WI 84, ¶ 12, 236 Wis. 2d 521, 613 N.W.2d 170. The sufficiency of the allegations in the complaint is also a question of law that we review independently. State v. A.S., 2001 WI 48, ¶ 26, 243 Wis. 2d 173, 626 N.W.2d 712. In addition, the constitutionality of a statute as applied to the facts of a case is determined without deference to the lower courts. State v. Johnson, 2001 WI 52, ¶ 10, 243 Wis. 2d 365, 627 N.W.2d 455, cert. denied, 534 U.S. 1043 (2001).

¶ 10. We begin our analysis with the State's appeal of the order dismissing the child enticement charge. In dismissing the charge, the circuit court relied on the supreme court's decision in State v. Weidner, 2000 WI 52, 235 Wis. 2d 306, 611 N.W.2d 684, and concluded that the child enticement statute, as applied to Brienzo's conduct, violated the First Amendment. The State submits that Robins, a case decided subsequent to the circuit court's ruling, mandates reversal.

¶ 11. In Robins, the defendant was charged with attempted child enticement arising from an Internet "sting" operation conducted by the Wisconsin Department of Justice. Robins, 253 Wis. 2d 298, ¶ 1. Citing our supreme court's decisions in Weidner and State v. Zarnke, 224 Wis. 2d 116, 589 N.W.2d 370 (1999), Robins argued that the child enticement statute is unconstitutional as applied to enticements over the Internet. Robins, 253 Wis. 2d 298, ¶ 39. The court rejected the argument, holding that Weidner and Zarnke were inapplicable because those cases involved First Amendment challenges to various obscenity statutes. Robins, 253 Wis. 2d 298, ¶ 39. The court held that unlike the obscenity statutes at issue in Weidner and Zarnke, the child enticement statute regulates conduct rather than speech or expression and, therefore, its prosecution does not implicate the First Amendment. Robins, 253 Wis. 2d 298, ¶¶ 41-43. According to the court, the fact that an act of child enticement is initiated or carried out in part by means of language does not make the child enticement statute susceptible of First Amendment scrutiny. Id., ¶ 43.

¶ 12. Here, like the defendant in Robins, Brienzo has been charged with child enticement arising from an Internet sting operation. As Brienzo himself recognizes, Robins teaches that the First Amendment does not protect attempted child enticements initiated through Internet communications. Id., ¶ 44. Brienzo, however, attempts to distinguish Robins by arguing that centred to the court's ruling was its belief that a defendant cannot be convicted of the crime of attempted child enticement by Internet communications alone and, here, unlike the defendant in Robins, the State has disjunctively charged Brienzo with "caus[ing] or attempting] to cause" a child enticment. Brienzo asserts that the First Amendment is "most certainly implicated if the prosecution is for a completed act of enticement carried out entirely by means of communications over the internet." (Emphasis omitted.)

¶ 13. However, we need not even address whether the holding in Robins embraces a charge of completed child enticement. A fair reading of the entire criminal complaint reveals that the State is charging Brienzo with attempted child enticement and not the completed act. The allegations of the complaint make clear that there was no actual child involved and that the State's theory is that Brienzo committed child enticement by attempting to cause a person whom he believed to be a child to go into a prohibited place with the intent to cause sexual contact. Further, if there is any doubt about our conclusion, the State has expressly made its election in its brief-in-chief to charge Brienzo with attempted child enticement on appeal. See State v. Miller, 2002 WI App 197, ¶ 26, 257 Wis. 2d 124, 650 N.W.2d 850, review denied, 2002 WI 121, 257 Wis. 2d 118, 653 N.W.2d 890 (Wis. Sept. 26, 2002) (No. 01-1406-CR) (noting that if a complaint is found to be duplicitous, the State must then -either elect the act upon which it will rely or separate the acts into separate counts). While the State did not voice an election to charge Brienzo with attempted child enticement until this appeal, we hold that the State may properly do so. Clearly, the State is entitled to make the election in the trial court and we can see no reason why the State cannot make the election at the appellate level as well.

¶ 14. Brienzo next argues that Robins was wrongly decided because it conflicts with prior United States Supreme Court decisions and, pursuant to State v. Jennings, 2002 WI 44, 252 Wis. 2d 228, 647 N.W.2d 142, we need not follow Robins. However, the supreme court held in Jennings that the court of appeals is not bound by a decision of the Wisconsin Supreme Court when that decision conflicts with a subsequent decision of the United States Supreme Court on a matter of federal law. Jennings, 252 Wis. 2d 228, ¶ 19. All of the United States Supreme Court decisions Brienzo cites were decided before Robins. Accordingly, Jennings does not authorize this court to decline to follow Robins. We recognize that the circuit court did not have the benefit of Robins when rendering its decision. Had Robins been available, perhaps the circuit court's decision would have been otherwise. Regardless, Robins compels reversal of the circuit court's holding that the child enticement statute as applied to Brienzo violates the First Amendment.

¶ 15. Brienzo raises several alternative arguments as to why the circuit court's dismissal of the enticement charge was correct. Brienzo contends that the child enticement count is duplicitous and should be dismissed because it charges both an attempt to entice and a completed enticement in a single count. Brienzo also argues that it was impossible for him to commit the completed act of child enticement since there was not a child involved. However, as discussed above, a sensible and fair reading of the complaint demonstrates that the State charged Brienzo with attempt and not the completed act. In any event, even if the child enticement count is duplicitous, the proper remedy is not dismissal of the complaint, but rather to require the State to elect which charge it will pursue at trial; thus, the State's election on appeal to charge Brienzo with attempted child enticement moots the issue. See Miller, 257 Wis. 2d 124, ¶ 26 (noting that if a complaint is found to be duplicitous, the State must then either elect the act upon which it will rely or separate the acts into separate counts); see also State v. Nye, 100 Wis. 2d 398, 407, 302 N.W.2d 83 (Ct. App. 1981), aff'd per curiam, 105 Wis. 2d 63, 312 N.W.2d 826 (1981) (holding that the proper remedy for a duplicitous charging document is not dismissal of the case, but rather amendment of the document).

¶ 16. Finally, Brienzo argues that the facts alleged in the complaint do not establish probable cause that he caused a child to enter into a prohibited place for purposes of sexual activity. The allegations in the complaint supporting this charge against Brienzo are similar to those in Robins. In Robins, the complaint alleged that after some sexually explicit conversations on the Internet with someone he believed to be a child, the defendant suggested that he and the child get a hotel room. Robins, 253 Wis. 2d 298, ¶¶ 5-8. They set a meeting time and place, and the defendant drove to that place at the assigned time, where he was arrested. Id., ¶¶ 11-14. The court concluded these allegations easily established probable cause "that [the defendant] attempted the crime of felony child enticement; that is, that he possessed the intent to entice a child for sexual intercourse and that he engaged in unequivocal acts in furtherance of that criminal objective such that it was improbable that he would desist of his own free will." Id., ¶ 38.

¶ 17. We reach the same conclusion in this case. The complaint alleges that Brienzo communicated via the Internet with "Alex," a person he believed to be a fourteen-year-old boy. During these communications, Brienzo expressed an interest in having sexual contact with Alex and suggested that they go to a hotel. Brienzo and Alex agreed to meet at a fast food restaurant on January 19, 2001, and Brienzo noted that there were hotels in the area. Brienzo drove to the restaurant at the agreed upon meeting time and was arrested when he entered the restaurant. While the agent posing as a minor conducted much of the discussions regarding the putative sexual activity, Brienzo's appearance at the prearranged site signals probable cause to believe that he had the intent to proceed with the criminal sexual activity discussed between the two and that he would have proceeded except for the intervention of the police. Therefore, none of Brienzo's alternative arguments prevent us from reversing the circuit court's ruling. We order that the circuit court, on remand, reinstate the charge of attempted child enticement.

¶ 18. We now turn to Brienzo's cross-appeal challenging the circuit court's denial of his motion to dismiss the second count in the criminal complaint, which alleges that Brienzo "attempt[ed] to have sexual contact or sexual intercourse" with a child under the age of sixteen. Brienzo's core argument in the cross-appeal is that he cannot be guilty of attempted sexual assault of a child by means of sexual contact or sexual intercourse because the crime carries no element of specific intent. Brienzo likens this charge to those cases in which courts have held that an attempt cannot lie to an offense that does not carry the element of specific intent. See State v. Briggs, 218 Wis. 2d 61, 66-67, 579 N.W.2d 783 (Ct. App. 1998) (holding that attempted felony murder is not a crime because the crime of felony murder does not include intent).

¶ 19. The statute governing attempt crimes requires that one have the intent to commit acts which would constitute a crime. Criminal attempt is defined in Wis. Stat. § 939.32(3):

An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that the actor does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that the actor formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.

As the State correctly observes, in State v. Grimm, 2002 WI App 242, 258 Wis. 2d 166, 653 N.W.2d 284, we held that an attempt charge would lie as to the crime of sexual assault by means of sexual contact because "sexual contact" is defined as only "intentional touching" and, therefore, the crime necessarily includes an element of intent. Id., ¶ 13; see also Wis. Stat. § 948.01(5). Thus, Grimm forecloses Brienzo's challenge to the charge of sexual assault by sexual contact. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). Grimm, however, left open the question of whether attempted sexual assault of a child by means of sexual intercourse is a crime known to law.

¶ 20. Unlike the definition of "sexual contact," the definition of "sexual intercourse" in Wis. Stat. § 948.01(6) does not include a formal element of intent; however, contrary to Brienzo's assertions, this does not end our inquiry. For purposes of an attempt analysis, the offense of attempted sexual assault of a child by sexual intercourse is analogous to the offense of attempted heat-of-passion manslaughter, which the supreme court held to be a crime in State v. Oliver, 108 Wis. 2d 25, 321 N.W.2d 119 (1982), despite statutory language requiring that the defendant have acted without the intent to kill. See id. at 28-29. The court stated that it is a legal fiction that a person acting in the heat of passion acts without the intent to kill. Id. at 28. While heat of passion negates the distinct intent required for first-degree murder, the court held that a defendant acting in the heat of passion may still intend to actually kill a person and thus may be guilty of attempted manslaughter. Id.

¶ 21. This same reasoning applies to the offense of sexual assault of a child by sexual intercourse. Our supreme court has recognized that even though the statutory definition of sexual intercourse does not formally include an intent element, the act of sexual intercourse is necessarily an intentional act. As our supreme court has held, "sexual intercourse" necessarily involves "sexual contact," so that

it is impossible to conceive of sexual intercourse which does not involve "intentional touching . . . directly ... 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."

State v. Dodson, 219 Wis. 2d 65, 79, 580 N.W.2d 181 (1998) (citation omitted), review denied, 2003 WI 91, 262 Wis. 2d 501, 665 N.W.2d 375. It logically follows from this construction of "sexual intercourse" that the crime of attempted sexual assault of a child by means of sexual intercourse is a crime known to law. A defendant may have the intent to engage in sexual intercourse with a child and may engage in acts in furtherance of that intent. When he or she does, he or she is liable for that attempt.

¶ 22. Brienzo's remaining arguments concerning the validity of the second count parallel the arguments he made with respect to the attempted child enticement charge and they fare no better here. The first parallel argument is that the sexual assault charge is duplicitous because it charges in the disjunctive that he attempted "to have sexual contact or sexual intercourse" with a child under the age of sixteen and should be dismissed. The State appears to concede that the charge is duplicitous, but contends that the proper remedy is not dismissal of the complaint. The State is correct; once again, the remedy for such an improper charging is to require the State to elect the alternative it will pursue at trial. See Miller, 257 Wis. 2d 124, ¶ 26 (noting that if a complaint is found to be duplicitous, the State must then either elect the act upon which it will rely or separate the acts into separate counts); Nye, 100 Wis. 2d at 407 (holding that the proper remedy for a duplicitous charging document is not dismissal of the case, but rather amendment of the document). We therefore reject Brienzo's argument that the complaint must be dismissed on these grounds.

¶ 23. The second parallel argument Brienzo raises is a First Amendment challenge to the sexual assault of a child statute as applied to attempted sexual assaults initiated over the Internet, citing Weidner and Zarnke. Brienzo contends that because his conduct consisted of speech that would be constitutionally protected if directed at an adult, and because he had no face-to-face contact with his intended victim that would have allowed him to determine the victim's age, the sexual assault statute may not be constitutionally applied to his conduct.

¶ 24. Our supreme court rejected that same argument in Robins when it held that the application of the child enticement statute to an attempt to entice a child over the Internet does not violate the First Amendment. Robins, 253 Wis. 2d 298, ¶¶ 39-44. The court explained that the child enticement statute regulated conduct, not speech and, therefore, the fact that an act of child enticement was initiated over the Internet does not make the statute susceptible to First Amendment scrutiny. Id., ¶¶ 41, 43. The rationale and holding of Robins apply with equal force to the attempted sexual assault charge in this case. Like the child enticement statute, the child sexual assault statute regulates conduct, not speech. It protects children from harmful sexual contact and not from speech or ideas. Thus, that Brienzo's attempt to have sexual contact or sexual intercourse with a child was initiated or carried out in part by means of language does not make the attempted child sexual assault charge susceptible of First Amendment scrutiny. Hence, we reject Brienzo's constitutional challenge.

¶ 25. Lastly, Brienzo raises the same challenge to the sufficiency of the complaint as he did with regard to the child enticement charge — that the complaint fails to establish probable cause that he attempted to sexually assault a child. The facts alleged and their reasonable inferences permit the conclusion that Brienzo intended to have sexual contact with a person he believed to be under the age of sixteen. Arranging a time and a place to meet that person, arriving at that place at the assigned time, and getting out of the car and entering the restaurant that was the agreed-upon meeting place are acts in furtherance of that criminal objective. It is reasonable to infer from those acts, in light of the preceding Internet communications, that Brienzo would have committed the crime except for the intervention of the extraneous factor that the person with whom Brienzo communicated was an adult law enforcement officer rather than an actual fourteen-year-old boy. More specifically, the facts alleged and their reasonable inferences show that, had a fourteen-year-old boy rather than a law enforcement officer met Brienzo at the McDonald's, Brienzo would have had sexual contact with the boy. We therefore conclude that the facts alleged in the criminal complaint and their reasonable inferences establish probable cause that Brienzo attempted to sexually assault a child under the age of sixteen.

By the Court. — Order affirmed in part; reversed in part and cause remanded with directions.

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

       Wisconsin Stat. § 948.01(6) states:
      "Sexual intercourse" means vulvar penetration as well as cunnilingus, fellatio or anal intercourse between persons or any other intrusion, however slight', of any part of a person's body or of any object into the genital or anal opening either by the defendant or upon the defendant's instruction. The emission of semen is not required.


source: Caselaw Access Project

license: Public Domain

text:
    Laurie L. Gruber and James Gruber, Plaintiffs-Appellants, v. Village of North Fond du Lac and Employers Insurance of Wausau, A Mutual Company, Defendants-Respondents.
    Court of Appeals

      No. 03-0357.

    Oral argument August 12, 2003.

    Decided September 10, 2003.

    2003 WI App 217
    (Also reported in 671 N.W.2d 692.)

      On behalf of the plaintiffs-appellants, there were briefs and oral argument by Kristi L. Fry of Fry Law Office, S.C. of Fond du Lac.
    On behalf of the defendants-respondents, there was a brief and oral argument by Peggy E. Van Horn of Law Offices of Stilp & Cotton of Brookfield.
    Before Anderson, PJ., Brown and Snyder, JJ.
   BROWN, J.

¶ 1. Wisconsin Stat. § 81.15 (2001-02) prohibits an action against a public authority to recover damages for injuries sustained by a natural accumulation of snow or ice upon a highway unless the condition existed for three weeks. The corollary, established by case law, is that actions based on artificial accumulations are actionable without the three-week requirement. Laffey v. City of Milwaukee, 4 Wis. 2d 111, 114-15, 89 N.W.2d 801 (1958). After examining the statute and case law, the trial court granted summary judgment to the Village of North Fond du Lac and dismissed the slip-and-fall complaint filed by Laurie L. Gruber and her husband James Gruber because it found as a matter of law that the ice was a natural accumulation and three weeks had not passed. We agree with the trial court that the ice was caused by natural accumulation. We further hold that the Grubers have waived the issue of whether the natural condition existed for longer than three weeks because it is raised for the first time on appeal. We affirm.

¶ 2. We will begin with the law. In Wisconsin, where land is graded or structures are built in the usual and ordinary way, and not for the purpose of accumulating and discharging water on a public sidewalk, drainage that results only incidentally and is not caused by negligent maintenance is deemed natural and ordinary. Corpron v. Safer Foods, Inc., 22 Wis. 2d 478, 484, 126 N.W.2d 14 (1964). On the other hand, where the presence of a normal amount of water would be anticipated, but where it is allowed to accumulate because of the negligent omission of the party sought to be liable, such as a failure to keep a drainage system in repair, then it is an artificial condition and the governmental entity may be held responsible. Sambs v. City of Brook-field, 66 Wis. 2d 296, 306, 224 N.W.2d 582 (1975).

¶ 3. Our task is to determine which of the two categories the facts in this case falls into. Whether the condition is artificial or natural is a question of law. Id. at 305. We appreciate that we decide the case de novo without any deference paid to the trial court. However, that is not to say that we do not value the trial court's input. We do, especially when the trial court has engaged in a thoughtful and thorough review of the law, as was done here. See Scheunemann v. City of West Bend, 179 Wis. 2d 469, 475-76, 507 N.W.2d 163 (Ct. App. 1993). We therefore will discuss the trial court's reasoning and explain why we agree with it.

¶ 4. Since this comes before us as a review of a summary judgment, we entertain our review using the same methodology as the trial court. Roebke v. Newell Co., 177 Wis. 2d 624, 632, 503 N.W.2d 295 (Ct. App. 1993). The summary judgment methodology has been repeated often in appellate courts opinions and need not be recited again in great detail here. Id. Essentially, summary judgment should be granted where there is no genuine issue of material fact, and the moving party is entitled to summary judgment as a matter of law. Id. The summary judgment record reveals the following information:

¶ 5. Gruber slipped and fell on -a patch of ice near the driveway/sidewalk area of 67 Harrison Street in the Village of North Fond du Lac. That area of Harrison Street runs perpendicular between Wisconsin Avenue on the west and Michigan Avenue on the east. There is an alley running parallel to Wisconsin Avenue and Michigan Avenue that is just to the west of where Gruber fell. The alley links up with Harrison Street. The address at 67 Harrison Street is the residence of the Hansens, friends of the Grubers.

¶ 6. At the time of her fall, Gruber was waiting to get into a Jeep that her husband was pulling up to the driveway after visiting the Hansens. At her deposition, Gruber testified that "there was water on top of the ice and my foot slipped out from underneath me and my ankle gave and I collapsed onto my leg because it was so slippery." Gruber also testified that the Hansens had warned her about the build-up of ice on the sidewalk. As a result of the fall, Gruber sustained a broken fibula, a broken tibia, torn ligaments and a dislocated foot.

¶ 7. Lori Hansen swore in a written statement that "[w]hen it rains or snow melts, the water runs down the alley to the street. Some of it runs towards our property, and runs down the sidewalk to our driveway." In another statement, she stated that she has lived there for three years and, for at least two of these years, she and her husband have had to deal with constant water/snow runoff from the adjacent alley. She said that the water runs from the alley, "down our sidewalk and onto our drive where it pools and freezes." She averred that "we have had to continually fight this ice. We salt, sand and chop it, but it keeps coming back." She stated that "[f]or at least [two] years, I have complained to the village and asked them to fix this condition. First, they said it was just cosmetic." After Gruber fell, the Village added a catch-basin in the alleyway, which remedied the problem.

¶ 8. Michael Tolvstad, the Village public works director, was also deposed. He testified to his observations of the problem and one of Hansen's prior complaints. He testified that Hansen had contacted the Village about unusual summer water flow down the alley and sidewalk that had washed [grass] seed off her terrace. He said of that incident that there was a volume of water great enough to wash dirt off the terrace. Nonetheless, he saw no reason to repair the excess water flow since the only damage was loose dirt and seed.

¶ 9. Tolvstad also testified that he inspected the area after the Gruber slip-and-fall incident. He stated that "[w]e found in most situations the water would cross the sidewalk and go down the driveway approach coming into the alley and onto the street, and very heavy flows, then it would want to go across the terrace, but because of snow blocking the terrace, that it would divert down the sidewalk in those cases." Tolvstad also stated that water flows (east) down the sidewalk because the grade is higher on Wisconsin Avenue than Michigan Avenue. He stated that the sidewalk then became a sheet of ice because the water continually flows down the sidewalk and freezes. Tolvstad remarked that the catch-basin, once installed, alleviated the problem because the function of the basin was to intercept the water before it left the alleyway such that it would no longer cross or run down the sidewalk.

¶ 10. Charles Hagberg, a registered professional engineer, was the Grubers' expert and was also deposed. He testified that a substantial amount of water drains down the alley because the elevation is higher towards the back of the alley and towards the sidewalk abutting Harrison Street. In his opinion, the water flow was the substantial source of the ice that formed on the Hansen property. He further opined that the alley was "designed and constructed in a manner that the water from the alley would go across the sidewalk at the alley and allow water to run down the sidewalk toward the Hansen property itself." Hagberg termed this to be an "alley drainage system" and he also opined that, before installation of the catch-basin, the system was inadequate. He based his conclusion on the reasoning that "the alley sloped towards the street and towards the sidewalk where the alley meets the street and the apron there, and they did not have a catch basin or some device that would prevent drainage of the excess water from the alley to the property." He called the slope "noticeable." He viewed the "system" as defective and believed the defect caused the accumulation of ice.

¶ 11. The trial court reviewed this same record and discussed each pertinent published decision on the subject. The court then focused on Sambs, which the trial court thought was the most definitive decision on the subject. The trial court read Sambs as requiring some evidence of faulty maintenance of an existing drainage system as a condition precedent to erasing immunity. It focused on the term used in Sambs where that court referred to a "negligently maintained drainage system." The trial court determined that there really was no evidence that the Village had, in this case, a drainage system. "It was just an alley and the sidewalk. There is nothing that the City [sic] did not maintain properly or negligently." At another point in the decision, the trial court reasoned:

And when I look at the facts of the Gruber case, our case, well, there really was nothing to tinker with or repair. It's just that's the way it was. There were no downspouts to be maintained. There were no culverts to clean or drainageways to keep open. It was just the way it was.

¶ 12. The trial court also found it instructive that the Sambs court saw the distinction being between whether the governmental authority was alleged to be negligent in failing to remove or in the manner in which it attempted to remove ice once it accumulated as opposed to whether the governmental authority caused its accumulation. If it was the former, it would not be actionable; if the latter, it would be. The trial court then said:

There really is no evidence that the accumulation of snow and water and ice was the City's [sic] cause. It didn't dump the snow there by its trucks, or it didn't cause a fire worker to come back and spray the water. The snow — in my view, the snow and its water [were] there by act of Wisconsin weather.

¶ 13. In their brief, the Grubers provide a history of the trial court's decision that is not consistent with the record. For example, the Grubers stated, "The Defendants in this case argued that the accumulation of water, which constantly pooled into a sheet of ice on the Hansens' property, was a natural accumulation, using as a basis the fact that the Village's drainage system, even if defectively designed, was working as designed at the time of Laurie's accident. The trial court appeared to accept that argument... in granting summary judgment." The Grubers then make various arguments all with the assumption that a drainage system did in fact exist and that the trial court had so found. For example, at one point in the brief, the Grubers argue that there was "nothing incidental about the accumulation of water in the alley and the intention to funnel it. It was simply tunneled to a place not intended." At another point in the brief, the Grubers allege that "this is not a 'winter in Wisconsin' case, but rather a case where the Village's defectively designed drainage system was not working, and the failure of the Village's drainage system caused an artificial accumulation of ice." Based on our reading of the Grubers' brief, the Grubers claim that there was a drainage system in place, that it was negligently designed because it was unable to handle excess flow, that the trial court so found and also determined that the system was working properly at the time.

¶ 14. We disagree that this is the state of the record. The trial court never found as an undisputed fact that the alley next to 67 Harrison Street was "designed" to allow drainage to run down the alley towards Harrison Street where the water would enter a storm sewer. Rather, the trial court found the opposite as we pointed out above. Thus, the trial court did not accept as fact the allegation that there was a drainage system in place which was working properly at the time.

¶ 15. Based on that lack of evidence, the trial court determined that this was a case where mere topography created the flow. The topography, occasioned by the fact that certain streets were elevated in comparison to other streets, was not enough in the trial court's opinion to decree that the resultant water flow was artificial rather than natural.

¶ 16. Having clarified the state of the record, we now undertake our de novo review. The Grubers appear to make two contentions. First, they continue to read the record as showing that the alleyway was part of a drainage design system. From this, they argue that the design was flawed because it did not work when there was a heavy flow of water and therefore the water flow must be viewed under the law as artificial. Second, they appear to assert that, even if there was no actual drainage design system in place, the water flow must still be regarded as artificial because the Village knew or should have known that the way it paved its streets and alleys, with certain elevations and pitches, created a hazardous condition on Harrison Street which it then had á duty to address. We will discuss each of these contentions in turn.

¶ 17. First, our review of the record leads us to the same determination that the trial court reached. There is absolutely nothing in the record to show that the alleyway was part of a drainage design system or that the alleyway was designed to pitch water from the alley onto Harrison Street and then into a storm sewer. Therefore, the facts show that the only forces causing the accumulation were the climate and topography and not unnatural diversions created by any man-made drainage system design flaw.

t6, 7]

¶ 18. Case law teaches that the presence or absence of a design system is integral to the success of the Grubers' case. There must be evidence that something man-made — such as a drainage system design or a downspout — was defective and that the defect caused the icy condition. For example, snow piled high on a curb, while man-made, is not "defective" such that it creates an artificial condition, at least in Wisconsin. Kobelinski v. Milwaukee & Suburban Transp. Corp., 56 Wis. 2d 504, 515-16, 202 N.W.2d 415 (1972). Neither is leaving snow on the sidewalk considered to be a man-made "defective" condition rendering it artificial. Stippich v. City of Milwaukee, 34 Wis. 2d 260, 269-71, 149 N.W.2d 618 (1967). And where a man-made downspout is properly working and water finds its way from the rear of the building to a sidewalk, the accumulation is not considered artificial because while it was man-made, it was not defective. Plasa v. Logan, 261 Wis. 640, 644-47, 53 N.W.2d 720 (1952).

¶ 19. On the other hand, if ice forms on a sidewalk because the city firemen discharged water thereon, it is a man-made diversion that defectively causes an accumulation. Laffey, 4 Wis. 2d at 112-15. If allegedly clogged and defective gutters on a roof causes an accumulation of water from melted snow in one spot which overflows into a gutter and forms ice on the sidewalk below, it is a man-made, defective condition which causes the problem and is considered artificial. Smith v. Congregation of St. Rose, 265 Wis. 393, 400-01, 61 N.W.2d 896 (1953) (overruled in part by Widell v. Holy Trinity Catholic Church, 19 Wis. 2d 648, 657, 121 N.W.2d 249 (1963), which created a new rule abolishing the immunity of religious institutions for negligence actions). Finally, where it is alleged that the driveway culverts are inadequate and the drainage ditches therefore overflow onto the road every time there is a substantial thaw, it is considered to he a negligently maintained man-made drainage system which causes the condition and is thus artificial. Sambs, 66 Wis. 2d at 301, 306-07.

¶ 20. Therefore, there must be evidence of something man-made and a defect in it must have diverted water for it to be considered artificial. As instructed by Sambs, a drainage system design is considered man-made and a flaw in the design may be considered to have caused an artificial flow. But there must be a record of it.

¶ 21. Here, there is no record of any man-made drainage system design. There is only a record of Wisconsin Avenue having a higher elevation than Michigan Avenue such that water flowing from an alley diverted to the east and onto the sidewalk in front of the Hansens' residence.

¶ 22. This brings us to the Grubers' second contention. They appear to seize upon the following language in Sambs, which states:

The rule with regard to the improper drainage of runoff water forming ice has been stated to be that there is a duty to provide proper drainage where it is known to the public authority that a dangerous condition exists. In this case there is evidence that the city had notice that its failure to provide an adequate drainage system created a hazardous situation, and, therefore, it had a duty to remedy the defect.

Id. at 306 (citation omitted). At oral argument, the Grubers argued that Sambs stands for the proposition that if a municipality knows of a dangerous condition caused by an abnormally high flow of water, it is duty bound to provide a proper drainage remedy. In other words, if the Village knows that the topography within its borders has various elevations and water flow resulting therefrom creates a hazardous water flow, the Village has a duty to fix the problem.

¶ 23. We do not agree that the quotation in Sambs creates the duty asserted by the Grubers. In the very next sentence after the above-cited quote, the Sambs court wrote: "Also, because of such notice the city had a duty to inspect the system it provided for its continued adequacy and to prevent blockages and obstructions having the same result." Id. at 306-07. This sentence tells us that if a man-made drainage design is in place, then the city has a duty to maintain it. But if there is no design — if it is just streets and alleyways and topography — then the rule in Corpon controls. The rule is that when structures are built in the usual and ordinary way and not for the purpose of accumulating and discharging water on a public sidewalk, then drainage which incidentally results and is not caused by negligent maintenance is deemed natural. Thus, an essential piece of the puzzle is missing. The Grubers had to provide evidence that not only was there water flow occasioned by certain elevations and pitches in the Village's streets, but that the Village paved these streets as part of a drainage system design plan. They did not provide this essential piece.

¶ 24. Thus, we hold, as a matter of law, that the flow of water and the formation of ice were natural. The Village is not required to create a drainage system capable of removing all water from the alleyway and appurtenant sidewalks. Every highway, every parking lot, and every alleyway involves some grading or change in the natural state of the earth. Grading, by itself, does not equal a drainage design system. To be actionable, the grading must be part of a drainage design plan or the grading must be shown to divert water from other sources onto the sidewalks. If not, the grading, by itself, does not create an artificial condition on the land even if the Village had notice that a hazardous condition existed. The condition was created by natural conditions and, according to the statute, the Village then had three weeks to address the problem.

¶ 25. The Grubers contend that even if the condition was natural, the Village let the problem linger for more than three weeks and the Village should not be afforded the immunity of Wis. Stat. § 81.15. In particular, the Grubers allege that the trial court found that the actual identical ice itself must have existed for three weeks rather than deciding whether an icy "condition" lasted for three weeks. The Grubers concede that the Hansens cleaned up the ice on a daily basis, but contend that the predicament existed throughout the winter and thus the icy condition was a seasonal problem lasting more than three weeks.

¶ 26. First, the trial court never made the distinction between "identical ice" and "icy conditions" as claimed by the Grubers. In fact, all the court said about the three-week rule was that the Village was "entitled to have the three-week notice of immunity under the statute." There is good reason why the court never addressed the distinction the Grubers now make. The Grubers never raised the three-week issue before the trial court. We thus hold that this issue is waived.

¶ 27. Although this court engages in summary judgment review de novo, we nonetheless may apply waiver to arguments presented for the first time on appeal. See, e.g., Hopper v. City of Madison, 79 Wis. 2d 120, 137, 256 N.W.2d 139 (1977). Application of the waiver rule is appropriate where a waived argument could have been rebutted with factual information. This is especially appropriate here. Hansen gave a written statement which is part of the record in which she said: "This winter we went out and cleared the walk by chopping and sanding and salting every morning, including the morning Laurie Gruber fell on it." That is the extent of the record about how long the "condition" continually existed. There is no mention of whether the condition lasted for one week, three weeks or the whole winter. The record appears to suggest that the water flowed due to a thaw, but we do not know when the thawing began. If the Grubers had raised the issue, the Village could have developed a record. And the Grubers could have developed a better record. And had the Grubers raised this issue with any prominence to the trial court, the trial court could have addressed it. This did not occur. We are loath to reverse a trial court on an issue that the trial court never had the opportunity to address. Because of the sparse record that we have on the issue and because the Grubers never made an issue of it until now, the waiver rule is appropriately applied here.

By the Court. — Judgment affirmed.

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

       We acknowledge that at points in the Village's trial brief and again in its appellate brief, it appears to assert that the alleyway was part of a drainage design system. However, on closer inspection, the Village really did not take that position. Rather, the Village was merely stating its understanding of the factual record. In particular, the Village paraphrased its own expert, Michael Tolvstad, to have said in his deposition that "[i]t is not uncommon for the design of alleys to pitch down towards the roads slightly to allow runoff to reach the storm sewers. In fact, the alley next to 67 Harrison Street was designed to allow drainage to run down the alley towards Harrison Street where the water would enter the storm sewer." In actuality, what' Tolvstad said was: "It's not unusual for water to run down sidewalks. The way the streets and sidewalks are constructed in most communities, they allow snow melt and rain to run down the sidewalk, typically to a driveway opening where it runs out onto a street." The Village's paraphrasing is erroneous. Tolvstad never said that the alley was part of a designed drainage system.


author: NETTESHEIM, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Scott Michael Harwood, Defendant-Appellant.
    Court of Appeals

      No. 03-0049-CR.

      Submitted on briefs June 24, 2003.—

      Decided September 17, 2003.

    2003 WI App 215
    (Also reported in 671 N.W.2d 325.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Patrick J. Schott, and Margaret G Zickuhr, of Schott, Bublitz & Engel, S.C. of Brookfield.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and David H. Perlman, assistant attorney general.
    Before Anderson, PJ., Brown and Nettesheim, JJ.
   NETTESHEIM, J.

¶ 1. Scott Michael Harwood appeals from a judgment of conviction for maintaining a place to store controlled substances contrary to Wis. Stat. § 961.42(1) and (2) (2001-02). Harwood contends that the trial court erred in denying his motion to suppress evidence stemming from a warrantless police entry into his apartment. We uphold the trial court's ruling that exigent circumstances allowed the police to enter Harwood's apartment without a search warrant. We therefore affirm the judgment of conviction.

FACTS

¶ 2. The facts underlying the police entry into Harwood's apartment are not disputed. Sergeant Michael Glider of the City of New Berlin Police Department testified at the suppression hearing that shortly after noon on May 19, 2002, he received a dispatch call of a burglary in progress at Apartment 206 of the Coachlight Apartments. The dispatcher reported that the tenant in Apartment 106 had observed two white males, "one boosting the other up to the window." The tenant believed the patio door to the apartment was being opened and the apartment was being entered illegally.

¶ 3. Glider was the first officer to respond to the call. Upon his arrival, he assigned other responding officers to perimeter positions around the building. While attempting to locate Apartments 206 and 106, Glider came upon two white males exiting Apartment 108. The two men closed the door quickly as if they "might he concealing something in 108." The men asked Glider why all of the officers were present and Glider replied that the tenant in 106 had seen another person boosting someone up onto the balcony of 206. The men responded that they were the two individuals the police were looking for. One of the men, later identified as Harwood, indicated that he lived in 206, had locked himself out, and had enlisted the help of the other man, his neighbor Jeremy Van Hoorbeck, "to boost him up to the balcony to enter the balcony so he could get his keys."

¶ 4. When asked for identification, Van Hoorbeck produced a driver's license that did not have his Coach-light address. However, he was able to produce mail from his apartment bearing his name and his Coach-light address. Harwood was unable to provide identification but did provide his full name and date of birth. Van Hoorbeck informed Glider that Harwood occupied Apartment 206.

¶ 5. When Glider asked Harwood where his keys were, Harwood stated that he did not have them and they were still in his apartment. Glider noted that Harwood seemed very nervous and was sweating. In Glider's opinion, "things didn't seem to be adding up." A female occupant of Apartment 108 then came out to the hallway, produced a key ring and said the keys belonged to Harwood, but Glider also noted that the name on the buzzer next to Apartment 206 was "Virjonna," not Harwood. Therefore, based on Harwood's "nervousness, his sweatiness, [that he] said he didn't have the keys, then had them, the name at apartment 206 didn't match his name, [he] didn't have any identification, him only being 17," Glider doubted that Harwood actually lived in Apartment 206 and believed that a burglary may have occurred or may still be occurring.

¶ 6. Glider sent Officer Mark Herbst to check out Apartment 206. Herbst entered the apartment using the keys provided by the female from Apartment 108. During his visual inspection of the apartment, Herbst observed material that he believed to be controlled substances and drug paraphernalia. After making sure that the apartment was clear, the police escorted Har-wood into the apartment and asked him to produce verification that he lived there, including any mail with name and address. Harwood was unable to do so. The officers then attempted to contact the apartment manager.

¶ 7. Another officer, Richard A. Helm Jr., testified at the suppression hearing regarding his contact with Harwood. According to Helm, he tried to corroborate Harwood's verbal identification by having Harwood produce evidence of his address, building number, and social security number. Harwood was unable to provide any of this information.

¶ 8. Based on the totality of their investigation, the police obtained a search warrant for Harwood's apartment. The ensuing search revealed the drug-related evidence that resulted in the charge of maintaining a place.used for manufacturing, keeping or delivering controlled substances contrary to Wis. Stat. § 961.42(1) and (2). Harwood filed a motion to suppress the evidence, contending that the police illegally searched his apartment without a search warrant. The trial court denied the motion, ruling that the officers' warrantless entry was justified under the circumstances.

¶ 9. Harwood subsequently pled guilty to maintaining a place used for manufacturing, keeping or delivering controlled substances. The trial court withheld sentence and placed Harwood on probation for five years with ten months' confinement as a condition of probation. Harwood appeals, challenging the circuit court's denial of his motion to suppress.

DISCUSSION

¶ 10. Appellate review of an order granting or denying a motion to suppress evidence presents a question of constitutional fact, which we review under two different standards. State v. Hughes, 2000 WI 24, ¶ 15, 233 Wis. 2d 280, 607 N.W.2d 621. We will uphold the circuit court's findings of fact unless they are clearly erroneous; however, our application of the law to those facts presents a question of law, which we review de novo. Id.

¶ 11. Although a police officer's warrantless entry into a private residence is presumptively prohibited by the Fourth Amendment to the United States Constitution, and article I, section 11, of the Wisconsin Constitution, the courts have recognized exceptions to the warrant requirement where the government can show both probable cause and exigent circumstances that overcome the individual's right to be free from government interference. Hughes, 233 Wis. 2d 280, ¶ 17. In this case, Harwood contends that there was neither probable cause nor exigent circumstances at the time of the search.

Probable Cause

¶ 12. In the search context, the quantum of evidence required to establish probable cause is a "fair probability" that contraband or evidence of a crime will be found in a particular place. Id., ¶ 21 (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). Harwood argues that the police did not have probable cause to believe that a crime was in progress when they entered his apartment or that evidence of a crime would be found in his apartment.

¶ 13. Harwood relies on our decision in State v. Paterson, 220 Wis. 2d 526, 583 N.W.2d 190 (Ct. App. 1998), in support of his argument. We first observe that Paterson was a community caretaker case. Id. at 529. The State made no claim that the police had probable cause to enter the residence, id. at 537, nor would the facts have supported a finding of probable cause. Therefore, we question the application of Paterson on this threshold basis.

¶ 14. Nonetheless, we address Paterson. There, the officers entered the residence based upon a dispatch report that a neighbor had called to report "suspicious activity at the residence and a possible burglary in progress." Id. at 529. The neighbor had reported "that there [were] lights going on and off in the upper level of the residence characteristic with somebody moving about from room to room . . . turning on lights momentarily, turning them off and proceeding to another room." Id. The neighbor had telephoned the Paterson residence and had received no response. Id. When the officers arrived at the residence they observed that the garage door was open and a pickup truck parked in the garage. Id. There was no sign of forced entry. Id. at 530. After attempting to contact the residence by telephone and announcing themselves at the residence with no response, the police entered the home to "see if there was something amiss." Id. In the course of inspecting the residence, the officers observed marijuana plants. Id. We held that these circumstances did not authorize the police entry under the law of community caretaker. Id. at 538.

¶ 15. Unlike the officers in Paterson who knew only that the lights in the residence had been turned on and off and nobody was answering the phone, the officers in this case had decidedly more suspicious information. Here, a resident of the apartment complex had reported a burglary in progress based upon his observation of one man boosting another onto the patio of an upper level apartment. The reporting resident did not identify either man as a resident of the apartment complex. When the police encountered Harwood and Van Hoorbeck in the building, Harwood appeared to be nervous and possibly concealing something in Van Hoorbeck's apartment. Although claiming to live in the apartment in question, Harwood could not recall the address of the apartment, could not recall his social security number, could not produce the keys to the apartment that he had just entered to retrieve, and his name did not match the name observed by the officers on the buzzer to the apartment. While a female occupant of Van Hoorbeck's apartment later produced keys and indicated they belonged to Harwood, the officers did not know the female occupant or her relationship to Harwood. Moreover, the female's production of Harwood's keys conflicted with Harwood's statement to the officers that his keys were in his apartment. We conclude that the totality of these observations established a "fair probability" that evidence of a crime would be found in Harwood's apartment. See Hughes, 233 Wis. 2d 280, ¶ 17 (citing Gates, 462 U.S. at 238).

. ¶ 16. Harwood also contends that once the officers had him in custody, any probable cause that a crime was being committed or that a burglary was in progress was eliminated. This argument, in part, is related to the exigent circumstances issue that we will address later. However, insofar as the argument bears on probable cause, it assumes that the police believed that any burglary involved only Harwood. But Glider's testimony is to the contrary. Based on Harwood's "nervousness, his sweatiness, [that he] said he didn't have the keys, then had them, the name at apartment 206 didn't match his name, [he] didn't have any identification, him only being 17," Glider doubted that Harwood lived in the apartment and "believed that a burglary may have occurred or may still be occurring up in 206." (Emphasis added.) Based on these suspicions, Glider concluded that it was necessary to "make sure that. .. there was nobody else in the apartment still burglarizing it."

¶ 17. In deciding whether an officer's actions are permissible under the Fourth Amendment, we need only determine that the law enforcement action was reasonable under the circumstances. Hughes, 233 Wis. 2d 280, ¶ 23. Here, the officers testified that there was very little that occurred during their conversation with Harwood that gave them reason to believe his version of the events. Although Harwood makes much of the fact that the officers eventually entered the apartment with keys provided by him, it remains that, absent any identifying information, the officers had no way of knowing whether the keys were rightfully in his possession. Nor did the production of Harwood's keys by the female eliminate the reasonable possibility that a burglary was ongoing.

¶ 18. Harwood also argues that the officers should have attempted to contact his apartment manager or check the license plate registration on his vehicle prior to entering the apartment. In support, Harwood again relies on Paterson, a community caretaker case. One of the factors to be considered in assessing community caretaker activity is the availability and effectiveness of alternatives to intrusion. Paterson, 220 Wis. 2d at 533-34. However, Paterson did not involve a claim of probable cause, which requires a wholly different inquiry — whether there is a "fair probability" that contraband or evidence of a crime will be found in a particular place. Hughes, 233 Wis. 2d 280, ¶ 17 (citing Gates, 462 U.S. at 238). Here both Glider and Herbst testified that they were concerned with the possibility that a crime could be ongoing in Apartment 206. As discussed above, the facts within the officers' knowledge at the time of the entry supported that determination.

¶ 19. Given the circumstances in this case, we conclude that the officers' actions were reasonable and supported by probable cause. We therefore turn to whether the State demonstrated that exigent circumstances existed to justify the warrantless entry into Harwood's apartment. Hughes, 233 Wis. 2d 280, ¶ 24 (once probable cause to search has been established, the State must also demonstrate exigent circumstances).

Exigent Circumstances

¶ 20. The existence of exigent circumstances is measured under an objective test. Id. This test inquires "whether a police officer, under the facts as they were known at the time, would reasonably believe that delay in procuring a search warrant would gravely endanger life, risk destruction of evidence, or greatly enhance the likelihood of the suspect's escape." Id. Wisconsin courts recognize the following four circumstances which, when measured against the time needed to obtain a warrant, constitute the exigent circumstances justifying a warrantless entry: (1) an arrest made in "hot pursuit," (2) a threat to the safety of a suspect or others, (3) a risk that evidence will be destroyed, and (4) likelihood that the suspect will flee. Id., ¶ 25 (citing State v. Smith, 131 Wis. 2d 220, 229, 388 N.W. 2d 601 (1986)).

¶ 21. The State contends that the resident's report of a possible burglary in progress, and the observations made by the police, coupled with Harwood's responses to the police inquiries, created a sufficient exigency of possible escape or harm to others to justify a warrantless entry into Harwood's apartment. Har-wood responds that there is no evidence of grave danger, risk of destruction of evidence, or escape because he was in handcuffs and being held by the officers. However, Harwood's argument again overlooks that the officers did not know at the time whether Harwood was involved in a burglary and, if so, whether he was acting alone.

¶ 22. Glider testified that after making contact with Harwood, he believed Harwood may have been a "co-conspirator." He sent officers to the apartment to "make sure there were no accomplices up there or somebody still burglarizing the apartment," and to check the patio doors for signs of forced entry because the officers could not see from the ground whether the door had been pried open. Herbst, the officer who first entered the apartment, stated that he entered to "make sure there was nobody else inside and to determine if there was a burglary in progress at that apartment." He made a visual "sweep" of the apartment during which he checked those places where a person might conceal himself or herself. He did not open any cabinets, closets or drawers.

¶ 23. The State cites to the supreme court's decision in State v. Richter, 2000 WI 58, 235 Wis. 2d 524, 612 N.W.2d 29, in support of its position that the officers in this case were faced with exigent circumstances. There, the court held that exigent circumstances justified a warrantless entry where an officer received a dispatch call which led him to believe that a burglary may be in progress; his response to the scene of the crime was immediate; he rapidly collected information regarding the whereabouts of the suspect; and his pursuit of the suspect was immediate and continuous upon his arrival on the scene. Id., ¶¶ 36, 38.

¶ 24. The facts confronting the police and the police reaction are similar to those of the officers in Richter. Glider received a dispatch to a possible burglary in progress. He arrived at Coachlight Apartments and organized police efforts to secure the building. He immediately entered the building in search of Apartment 206 and the suspect. Although Glider encountered Harwood while attempting to collect information about the suspect, as the State points out, this encounter did nothing to assuage Glider's concerns but rather exacerbated them.

¶ 25. Harwood argues that the officers could have done more to ascertain his identity prior to entering the apartment. However, this argument overlooks that, at the time, the officers believed that a burglary was possibly in progress and therefore time was of the essence. By definition, exigent circumstances require a prompt response by officers. "[W]e do not apply hindsight to the exigency analysis; we consider only the circumstances known to the officer at the time he [or she] made the entry and evaluate the reasonableness of the officer's action in light of those circumstances." Id., ¶ 43. That Glider later discovered that Harwood did reside in Apartment 208 does not negate the exigency prior to ascertaining that information.

CONCLUSION

¶ 26. We conclude that the officers' entry into Harwood's apartment was justified by both probable cause and exigent circumstances. We therefore uphold the trial court's order denying Harwood's motion to suppress and affirm the judgment of conviction.

By the Court. — Judgment affirmed.

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

       Harwood was also charged with possession of marijuana pursuant to Wis. Stat. § 961.41(3g)(e), and possession of drug paraphernalia pursuant to Wis. Stat. § 961.573(1). These charges were dismissed pursuant to a plea agreement following the denial of Harwood's motion to suppress.


text:
    In re the Paternity of Andrew Kowalski: Connie Kowalski, n/k/a Connie Bassel, Petitioner-Respondent, v. Scott Obst, Respondent-Appellant.

    Court of Appeals

      No. 03-0573.

      Submitted on briefs July 14, 2003.—

      Decided September 17, 2003.

    2003 WI App 218
    (Also reported in 671 N.W.2d 339.)

      On behalf of the respondent-appellant, the cause was submitted on the brief of Margaret W. Hickey of Becker & Hickey, S.C. of Milwaukee.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of George N. Kotsonis of Milwaukee.
    Before Anderson, PJ., Brown and Snyder, JJ.

       Petition to review denied 12-16-03.

   BROWN, J.

¶ 1. In this case, we are asked to consider whether changes in the statutory structure for child support mandate a different result in this case than in Mary L.O. v. Tommy R.B., 199 Wis. 2d 186, 544 N.W.2d 417 (1996). There, our supreme court held that a trial court may establish a trust for a child's postmi-nority educational expenses from funds paid for child support. Id. at 189-90. Here, Scott Obst appeals an order increasing his child support obligations from $1500 to $4000 per month with $500 pér month to be placed into a trust for his son's benefit, which can be used to fund his son's higher education if any money remains in the trust at the time his son obtains majority. Scott contends that because Wis. Stat. § 767.51(5)(e) (1993-94), the child support statute cited in Mary L.O., has been repealed, the trial court no longer has the authority to establish a trust from funds paid for child support for the purpose of funding a child's postminority educational expenses. We hold that when the legislature repealed § 767.51(5)(e), it did not intend to alter the import of Mary L.O. and the trial court had the authority to establish a trust from child support paid during Scott's son's minority, some of which may be used to fund his son's higher education. We also conclude that the trial court did not erroneously exercise its discretion when it vacated the January 2001 order and increased the amount of child support. We affirm.

¶ 2. Scott and Connie Kowalski, n/k/a Connie Bas-sel, have one minor child, Andrew, born on May 21, 1991. Prior to this action, the parties had last modified the support agreement in January 2001, after a motion brought by the child support enforcement agency. On January 17, the date of the modification hearing, Scott filed a financial disclosure statement showing his base monthly income as $16,250. The financial disclosure statement also stated that Scott's bonus income would vary depending on company performance, "CAN BE -0-TO $7,700." Based upon Scott's financial disclosure statement, the parties entered into a stipulation establishing child support payments at $1500 per month and $250 per month in arrears. Both parties' counsel and the court confirmed that the child support agreement was based upon Scott's weekly income of $3750, not on bonus income. The court approved the parties' agreement, and set the child support at $1500 per month and $250 per month on the arrears.

¶ 3. After Scott moved for placement with Andrew and filed an action for joint custody on March 26, 2002, Connie moved to modify support on April 11, 2002. Connie alleged that Scott had failed to fully disclose his income in 2001 and requested the court to set child support at seventeen percent of Scott's actual income.

¶ 4. Scott then filed another financial disclosure statement in which he listed his total monthly income as $25,854, an amount that represented his W-2 income only. At the modification hearing, Scott testified both that his weekly income was up to $4750, an amount based on the financial disclosure statement, and that he earned bonus income. On cross-examination, Scott was asked to produce his wage stub from the last pay period, which was June 2002. The wage stub indicated that his gross year-to-date income was $232,763, which Scott testified meant that he earned roughly $37,000 in monthly base income. The trial court noted that this would constitute about $8500 a week for the first 28 weeks of that year.

¶ 5. As for the bonus income, Scott testified that although he paid income tax on significant K-l income that he receives because he owns eight percent of the company, he does not actually receive the K-l amounts. Scott testified that his employer pays out only enough money for Scott to pay the income tax on the K-l amounts.

¶ 6. Connie testified that she had no income and that her husband told her he makes between $40,000 and $50,000 annually as a carpenter. Connie testified that Andrew's activities had changed significantly since January 2001. Connie also testified that the amount of child support ordered in January 2001 was sufficient to cover Andrew's expenses.

¶ 7. The trial court found that until recently Scott had done everything to avoid financial responsibility under the judgment of paternity. The court concluded that Scott had an obligation to notify the court and Connie of his change in income and his failure to do so was both unreasonable and unconscionable. The court found that in the January 2001 agreement Scott did not make a complete disclosure of his income or of his ownership interest in the company he works for and that this nondisclosure had been Scott's pattern in the past. According to the court, Scott's disclosed income was far different from his 2000 gross income and was significantly understated. The court found that had the court not required him to provide the 2002 pay stub, the court would not have had accurate income information.

¶ 8. The court stated it had no authority to modify the support retroactively. The court found that there was a change in circumstances due to the increase in Scott's income. The court found that Scott's income average was in excess of $425,000 per year and that given his June 2002 wage stub, his income would near $450,000 for 2002. Thus, the court found that Scott was a high-income earner. The court found that Scott's income was not likely to change in the future. The court found that there was no showing that Andrew's basic needs were not already being met. The court then concluded that pursuant to Mary L.O., it had the authority to set aside money for Andrew's future. After an analysis of the factors listed in Wis. Stat. § 767.25(lm) (2001-02), the court deviated from the percentage standard and ordered Scott to pay $4000 in child support (ten percent of his gross income), $500 of which was to be placed in a trust in a custodial account with both parents as trustees. The court ordered that the trust funds were to be used for Andrew's health and education. If money remained in the trust past Andrew's minority, the court ordered that the money was to be made available for Andrew's higher education. Scott appeals.

¶ 9. Scott raises several issues regarding the child support award. Determination of appropriate child support is discretionary with the trial court. Weidner v. W.G.N., 131 Wis. 2d 301, 315, 388 N.W.2d 615 (1986). An appellate court will sustain a discretionary act if it finds that the trial court examined the relevant facts, applied a proper standard of law and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. Id. (citing Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982)).

¶ 10. We begin our analysis with Scott's challenge to the creation of the trust. Scott submits that the trial court erred in concluding that Mary L.O. authorized it to set aside money for the future educational needs of Andrew. Scott contends that in Mary L.O., the supreme court relied upon Wis. Stat. § 767.51(5)(e) (1993-94) to uphold the use of a trust for postminority education. He observes that the legislature has repealed § 767.51(5)(e) (1993-94), and argues that this mandates a different result than in Mary L.O. because Wis. Stat. § 767.25(lm) (2001-02), which lists the factors courts are now to consider in making child support determinations, states that the court may consider the child's "educational needs," whereas § 767.51(5)(e) (1993-94) expressly authorized the court to look at the child's "higher education[al]" needs.

¶ 11. In Mary L.O., the child's father was a professional football player with an exceptionally high current income, but a limited career span expectancy. Mary L.O., 199 Wis. 2d at 190. The trial court determined that the father's ability to continue to support his child, based on his education and prior work experience, was questionable. Id. at 195-96. In order to ensure an adequate cash flow "over the period of time to meet the statutory criteria of child support and to meet the postminority responsibilities of going off to college," the court established a trust from funds paid for child support. Id. at 192. The father appealed, arguing that the trial court did not have the authority to create a trust to fund the child's education past the age of majority. Id. at 193. The court of appeals held that the creation of the trust was an erroneous exercise of discretion because it would compel the father to pay support for the child after the age of majority. Id. at 200.

¶ 12. The supreme court reversed, holding that the trust was permissible pursuant to Wis. Stat. § 767.51(5)(e) (1993-94), as long as the trust payments were made from child support paid while the child was still a minor. Mary L.O., 199 Wis. 2d at 200-01. The court explained that § 767.51(5)(e) (1993-94) allowed the family court in a paternity action to consider the "need and capacity of the child for education, including higher education" and concluded that this supported the actions of the family court in that case. Mary L.O., 199 Wis. 2d at 200. The court further reasoned:

After directing the family court to look to a child's need and capacity for higher education in setting support, which the family court in the present matter properly did, the legislature must mean to permit courts to undertake efforts in appropriate circumstances to see that a child's capacity for higher education is served by making preparations, including financial preparations, for attendance at an institution of higher learning. A trust is a logical and feasible device to accomplish this end.

Id.

¶ 13. In reaching its conclusion, the supreme court noted the discrepancy between paternity and divorce actions in the factors a court must consider when setting child support:

In divorce actions, the court is to consider "[t]he child's educational needs," see Wis. Stat. § 767.25(lm)(g) (1993-94), whereas in paternity actions the court is to consider "[t]he need and capacity of the child for education, including higher education," see Wis. Stat. § 767.51(5)(e). This difference has existed since 1979, when the legislature changed the paternity statute to its present wording. See § 25, ch. 352, Laws of 1979. We direct the legislature's attention to this discrepancy. We do not attempt to resolve the discrepancy in this case because the issue is not before the court.

Mary L.O., 199 Wis. 2d at 201 n.5. In fact, several of the child support factors in paternity cases were different from the child support factors listed in Wis. Stat. § 767.25(1m) (1993-94) for marital cases. Christopher D. Walther, Wisconsin's Custody, Placement, and Paternity Reform Legislation, 73 Wis. Law. 15, 48 (Apr. 2000). In order to harmonize marital and paternity law, the legislature eliminated the inconsistent paternity factors, including the factor formerly found in Wis. Stat. § 767.51(5)(e) (1993-94), "the need and capacity of the child for. . . higher education," and amended § 767.25(1) (2001-02) so that it now applies to both marital and paternity cases. Walther, supra, at 48. Section 767.25(lm)(g) (2001-02), which is one of the factors courts are to consider in making the child support determination both in paternity and marital cases, permits courts to assess "the child's educational needs."

¶ 14. We cannot assume, as Scott asks us to do, that when the legislature repealed the separate, redundant language in the paternity statute it intended to overrule Mary L.O. First, and most importantly, the rationale underpinning the supreme court's decision in Mary L.O. remains valid despite the statutory changes. In Mary L.O., the supreme court posited that because the percentage standards presume a higher standard of living commensurate with the payer's higher income, the child is entitled to the money over and above his or her needs and that the excess money in the trust can be used for his or her future educational needs. This would be in the child's best interests and put the child in the same position as if the child was in an intact high-income family; thus, accomplishing the goal of the child support statutes, ■ including Wis. Stat. § 767.25 (2001-02). Second, the language in Wis. Stat. § 767.25(lm)(g) (2001-02) permitting courts to consider a child's "educational needs" is clearly broad enough to encompass the higher educational needs of the child. To conclude otherwise would be to severely limit the trial court's discretion, especially in a high income earner situation. Thus, we are convinced that the statutory changes have not altered the import of Mary L.O.

¶ 15. We also note that case law interpreting Wis. Stat. § 767.25 (2001-02), the statute that now governs child support determinations in the context of paternity actions, suggests that a trust may be established for a minor child's higher education costs. In Hubert v. Hubert, 159 Wis. 2d 803, 817, 465 N.W.2d 252 (Ct. App. 1990), we held that § 767.25(2) provides the trial court with the necessary authority to establish trusts for the postmajority needs of the children. Section 767.25(2) reads:

The court may protect and promote the best interests of the minor children by setting aside a portion of the child support which either party is ordered to pay in a separate fund or trust for the support, education and welfare of such children.

We concluded that the statute "gives the court an attractive means of providing for the future educational needs of children with child support that is paid while the children are under the age of majority." Hubert, 159 Wis. 2d at 817. For the foregoing reasons, we hold that the trial court had the authority to establish a trust for Andrew's higher educational needs with child support paid while he is under the age of majority.

¶ 16. Referencing the factual context of Mary L.O., Scott also seems to argue that a trial court only has the authority to create a trust if the court finds that the high-income payer's ability to support the child in the future is questionable. However, we can find no language in Mary L.O. or Wis. Stat. § 767.25 (2001-02) so limiting the discretion of the trial court in creating a trust. As long as the trust is created from child support paid during the child's minority, the funds from the trust can be used for the higher education of the child. Here, the trial court determined that given Scott's high level of income, the expectation that children in high-income families will pursue higher education, and Andrew's best interests, a trust, created solely with child support paid during Andrew's minority, of which some portion may go towards Andrew's higher education, was appropriate. This determination is wholly within the trial court's province and was reasonable given the record before the court. Accordingly, we conclude that the trial court did not erroneously exercise its discretion when it ordered Scott to pay $500 of the child support into a trust for Andrew's benefit.

¶ 17. We now turn to Scott's final arguments. Scott contends that the trial court erroneously exercised its discretion by modifying his child support obligation. Scott obviously does not challenge the court's deviation from the percentage guidelines, but instead asserts that there is no basis for the court's decision to increase the child support to $4000 per month. Scott further submits that the trial court erred by not adhering to the parties' agreement in the January 2001 order to use his base income and not his bonuses in setting child support.

¶ 18. We disagree with Scott's assertion that the trial court modified the January 2001 order. Although the parties and the court spoke in terms of a modification, our review of the record demonstrates that the trial court actually vacated the January 2001 order based on Scott's continuous intentional and deliberate misrepresentation of his income and then issued a new order based on Scott's real income. We, therefore, analyze the case in that context.

¶ 19. A court may relieve a party of an order for the reasons stated in Wis. Stat. § 806.07(1), including for "[f]raud, misrepresentation, or other misconduct of an adverse party." Once the court has determined that grounds exist, its decision to grant relief is discretionary. Mogged v. Mogged, 233 Wis. 2d 90, 95, 607 N.W.2d 662 (Ct. App. 1999).

¶ 20. The trial court concluded that Scott had simply chosen not to fully and truthfully disclose his income both to Connie and the court prior to the January 2001 proceedings, that this withholding of information was consistent with his history of attempting to avoid his child support obligations, and that, as a result, the January 2001 order was based on incomplete information. The record supports the trial court's determination. Scott did not disclose his K-l income on the January 2001 financial disclosure statement. On his financial disclosure statement, Scott indicated that he earned $16,250 monthly and he had a bonus income anywhere from $0 to $7700 per month; however, Scott knew or should have known that he received $329,000 in the calendar year 2000 or $27,000 per month and had an average monthly bonus income of $11,232 — a far cry from what Scott had disclosed as his income. Accordingly, we conclude the trial court properly exercised its discretion in vacating the January 2001 order.

¶ 21. After analyzing the factors in Wis. Stat. 767.25(lm) (2001-02), the trial court then deviated from the percentage guidelines and ordered Scott to pay $4000 per month, the equivalent of ten percent of his income. We emphasize that the establishment and revision of child support are committed to the discretion of the trial court. See Edwards v. Edwards, 97 Wis. 2d 111, 116, 293 N.W.2d 160 (1980). Indeed, we have often said that "[b]ecause the exercise of discretion is so essential to the trial court's functioning, we generally look for reasons to sustain discretionary decisions." Schneller v. St. Mary's Hosp. Med. Ctr., 155 Wis. 2d 365, 374, 455 N.W.2d 250 (Ct. App. 1990), aff'd, 162 Wis. 2d 296, 470 N.W.2d 873 (1991). In reaching the amount of child support, the court considered Scott's substantial increased capacity to pay child support, Connie's income, Andrew's lack of financial resources, the transportation costs attendant to the placement order, Andrew's health care costs, the typical standard of living of children in high-income families, and Andrew's best interests. The court also noted that if Andrew lived with Scott's family, he would have the benefit of Scott's high income. These are all appropriate considerations. Further, we note that because the original order was based on fraud and misrepresentation, the court need not have adhered to the parties prior agreement to rely solely on Scott's base income. Therefore, we conclude that the trial court properly exercised its discretion in setting the amount of child support.

By the Court. — Order affirmed.