author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Shirley J. Peters, Defendant-Appellant.
    Court of Appeals

      No. 01-0555-CR.

      Submitted on briefs August 8, 2002.

    Decided September 18, 2002.

    2002 WI App 243
    (Also reported in 653 N.W.2d 300.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven P. Weiss, assistant state public defender, of Madison.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Christian R. Larsen, assistant attorney general.
    Before Nettesheim, EJ., Brown and Snyder, JJ.
   BROWN, J.

¶ 1. Shirley J. Peters appeals both from a judgment of conviction for first-degree intentional homicide for shooting and killing her husband, Marvin Peters, and an order denying her postconviction motion. Peters argues on appeal that the trial court erred when it ruled that she failed to satisfy the objective threshold showing for both perfect and imperfect self-defense and refused to issue the self-defense jury instructions she requested.

¶ 2. In light of the supreme court's recent decision, State v. Head, 2002 WI 99, No. 99-3071-CR, we reverse and remand to the trial court for two reasons. First, based on the supreme court's holding in Head that a defendant need not satisfy an objective threshold showing for imperfect self-defense, we determine that the real controversy of imperfect self-defense was not fully tried. We, therefore, exercise our statutorily recognized power of discretionary reversal under Wis. Stat. § 752.35 (1999-2000) to reverse the judgment and order. Second, applying the "some" evidence standard clarified in Head, we conclude that the trial court erred by refusing to instruct the jury on perfect self-defense and that this error was not harmless. We therefore reverse the judgment and order and remand the case to the trial court for a new trial.

¶ 3. Peters was charged with first-degree intentional homicide for shooting her husband, Marvin. Peters did not dispute that on the morning of Monday, October 5, 1998, she shot her husband six times and killed him. Rather, she claimed she acted in self-defense. The evidence proffered at trial pertinent to Peter's claim of self-defense can be summarized as follows.

¶ 4. Peters testified about the emotional and verbal abuse she suffered in the days and weeks before the shooting. According to Peters, Marvin would scream at her all of the time and shove her around, but he would not actually hit her. Marvin would not let Peters go anywhere on her own. Peters' son, Ed Zimmerman, testified that he had seen Marvin grab Peters and shove her around and yell at her.

¶ 5. Peters testified that the couple had guns in the house and that Marvin kept a gun within reach of the chair in which he usually sat in the dining room. Peters' neighbor, Paul Nord, and Zimmerman both testified that Marvin generally kept a loaded .22 rifle near the chair he normally sat in. Nord further testified that it would not be difficult for Marvin to reach over from his chair and grab the rifle. Peters also testified that in the ten days prior to the shooting, Marvin had been playing with his rifle and this frightened her.

¶ 6. Peters testified that on the day before the shooting she thought he was going to kill her. She stated that Marvin had pointed a .22 rifle at her while trying to install a scope on the rifle. Afterwards, she stated she was "to the point of where I was frightened that he was gonna shoot me." According to Peters, that same day Marvin also threatened her after the two discussed divorce. She stated that he brought bullets out of the bedroom, put them in his pockets and told her "there wouldn't be a divorce there. Somebody might die. But there wouldn't be a divorce." Zimmerman also testified that Peters had told him that Marvin had threatened her with the rifle.

¶ 7. Peters stated that on the morning of October 5, Marvin was sitting in his usual chair in the dining room and the two had been arguing. After Marvin stated that he was going to call his attorney, she testified that she had told Marvin that she wanted to leave and that she was going to call her son so she could have him come and pick her up. She testified that when she attempted to call her son, Marvin became angry, disconnected the phone and stated, "you're not going anyplace and you're not calling anybody."

¶ 8. Peters then left the dining room, went to her bedroom and retrieved a gun she purposefully had hidden in the headboard of her bed the night before. She testified that she then walked back to the dining room area and intended to frighten Marvin with the gun. According to Peters, when she walked back into the room She stated she thought that at the time he was going to get his rifle and shoot her. Peters testified that she then fired the gun.

[Marvin] pushed the chair straight back. He stood up and he was if — because he was a big man, he pretty well blocked the door, and when he seen I had a pistol, he said, I believe he said, I'm sorry Shirley, don't, I'm sorry, and I seen his right hand where the gun was, I seen him start to drop his right hand that way to where he usually kept the rifle [over in the corner].

¶ 9. After shooting Marvin, Peters reconnected the phone lines and called 911. She admitted shooting her husband to the 911 dispatcher and stated, "he's been so mean to me, I can't stand it anymore .... I had a pistol and I shot him." She also called Marvin's son, Stephen, who arrived at the home shortly thereafter and spoke with the 911 dispatcher. Stephen told the dispatcher that Marvin kept rifles in the home, including a .22 rifle, which he indicated was located near Marvin's body. The police dispatcher, the voice on the 911 tape, testified that Stephen did state to him that there was a .22 rifle in the room. The crime scene investigator, however, did not find a rifle lying in the area where Marvin was shot and killed. The crime scene investigator testified that they had only found a gun in the corner of the room behind a bookcase and covered in cobwebs.

¶ 10. Peters requested jury instructions on both perfect and imperfect self-defense. At the conclusion of the trial, the trial court determined that it had to evaluate whether or not Peters had a reasonable basis to believe that she faced unlawful interference. Based upon this standard, the court found that Peters had failed to establish a sufficient factual basis to warrant the submission of jury instructions on self-defense and denied her request. The jury convicted Peters of the first-degree intentional homicide charge.

¶ 11. The court sentenced Peters to life in prison without parole. Peters filed a postconviction motion arguing, in part, that the court's refusal to give jury instructions on self-defense constituted error requiring a new trial. The court denied the motion.

¶ 12. This case requires the court to review the trial court's decision not to submit a jury instruction on self-defense. Whether there are sufficient facts to allow the issuing of an instruction is a question of law which we review de novo. State v. Mayhall, 195 Wis. 2d 53, 57, 535 N.W.2d 473 (Ct. App. 1995). A court errs when it refuses to give an instruction on an issue raised by the evidence. Id. If we determine that a trial court has committed an error in refusing to give a jury instruction, we must assess whether the substantial rights of the defendant have been affected. Wis. Stat. § 805.18(2).

¶ 13. Since the trial court's ruling, we have had the benefit of the Wisconsin Supreme Court's instruction on perfect self-defense and unnecessary defensive force, the equivalent of imperfect self-defense. The supreme court's detailed analysis of the law of self-defense in Head controls this case. The facts in this case closely resemble the facts in Head and we begin our analysis with a brief discussion of that recent decision.

¶ 14. Debra Head was convicted by a jury of first-degree intentional homicide for shooting and killing her husband. Head, 2002 WI 99 at ¶ 1. Head asserted claims of perfect and imperfect self-defense. Id. at ¶ 2. In her statements to the police, Head related that her husband had been verbally, but not physically, abusive. Id. at ¶ 23. In support of her defense, Head testified that her husband had threatened to kill her if she ever filed for divorce, the couple kept several guns in the house, and at the time she shot him, she and her husband had been arguing and she thought that he had been attempting to move towards her and grab the gun. Id. at ¶¶ 14-18, 22, 28.

¶ 15. The trial court ruled that Head had failed to satisfy the objective threshold for imperfect and perfect self-defense and refused to issue a jury instruction on self-defense. Id. at ¶ 36. Consequently, the court instructed the jury only on first-degree intentional homicide and Head was convicted of the charge. Id. at ¶¶ 36-37. We affirmed, citing State v. Camacho, 176 Wis. 2d 860, 501 N.W.2d 380 (1993), for the proposition that imperfect and perfect self-defense both have objective and subjective components. Id. at ¶ 38. In affirming the conviction, we noted that "[Head] did not testify that her husband made a direct verbal threat against her, or that he engaged in any overtly'violent acts or gestures, in the moments leading up to the shooting." Head, 2002 WI 99 at ¶ 38 n.7.

¶ 16. After analyzing the revised statutes governing imperfect and perfect self-defense, the supreme court announced a new standard for unnecessary defensive force (imperfect self-defense). The court modified Camacho to the extent that it contained an objective threshold element requiring defendants to have a reasonable belief that they were preventing or terminating an unlawful interference with their person in order to raise the issue of unnecessary defensive force. Head, 2002 WI 99 at ¶ 104. The court held that defendants seeking a jury instruction on unnecessary defensive force to a charge of first-degree intentional homicide must present "some" evidence that they actually believed that they were in imminent danger of death or great bodily harm and actually believed that the force they used was necessary to defend themselves. Id. at ¶ 5. The court determined that based on the evidence presented at trial, Head was entitled to a jury instruction on imperfect self-defense. Id. at ¶ 7.

¶ 17. The court further clarified the standards for perfect self-defense. The court held that defendants seeking a jury instruction on perfect self-defense to a charge of first-degree intentional homicide must satisfy an objective threshold showing that they reasonably believed that they were preventing or terminating an unlawful interference with their person and reasonably believed that the force they used was necessary to prevent imminent death or great bodily harm. Id. at ¶ 4. According to the court, the threshold for perfect self-defense evidence logically is higher than the threshold for imperfect self-defense evidence because of the objective reasonableness component required for perfect self-defense. Id. at ¶ 116. The court instructed the trial court on remand to apply the correct standards for the perfect self-defense instruction. Id. at ¶¶ 4-5.

¶ 18. We now apply the law of self-defense as set forth in Head to the facts of this case. We first turn to the issue of the trial court's refusal to give a jury instruction on imperfect self-defense. We conclude that Peters should be granted a new trial in the interests of justice because the real controversy of imperfect self-defense was not fully and fairly tried. Wisconsin Stat. § 752.35 recognizes our authority to reverse a judgment or order appealed from and remand for a new trial, "if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried." We understand that the power of discretionary reversal is formidable. State v. Watkins, 2002 WI 101, ¶ 79, No. 00-0064-CR. We are convinced it should be applied here.

¶ 19. The trial court, operating without the benefit of the supreme court's guidance in Head, applied Camacho's objective threshold, and required Peters to establish a reasonable belief that she was preventing or terminating an unlawful interference with her person. Under the law of imperfect self-defense set out in Head, in order for Peters to be entitled to a jury instruction on imperfect self-defense, she would need to present only "some" evidence that she actually believed that she was in imminent danger of death or great bodily harm and actually believed that the force she used was necessary to defend herself. See Head, 2002 WI 99 at ¶ 5. Peters would be entitled to an instruction on imperfect self-defense if the trial evidence placed the mitigation defense in issue. See id. Imperfect self-defense is placed in issue when, under a reasonable view of the trial evidence, a jury could conclude that the State has failed to meet its burden to disprove either that Peters actually believed she was in imminent danger of death or great bodily harm or she actually believed the force she used was necessary to defend herself. Id.

¶ 20. Because the trial court applied the more demanding objective threshold requirement, it never addressed the question of whether Peters had formed an actual belief that she needed to act in self-defense. A jury instruction under imperfect self-defense would have permitted the jury to convict Peters of second-degree intentional homicide. Wis. Stat. § 940.01(2)(b). Without the self-defense jury instruction, the jury was left with only two options: convict Peters of first-degree intentional homicide or acquit. Thus, Peters never had the opportunity to fully and fairly try her case under the appropriate standards for imperfect self-defense. Accordingly, we reverse the judgment and order and remand the case for a new trial.

¶ 21. Next, we apply the standards articulated in Head for perfect self-defense to the facts of this case. We conclude that the trial court erred by refusing to deliver a jury instruction on perfect self-defense. As the court stated in Head, "[a] defendant is entitled to an instruction on perfect self-defense when the trial evidence places self-defense in issue." Head, 2002 WI 99 at ¶ 4. In order to place perfect self-defense in issue a defendant need present only "some" evidence supporting the claim of self-defense measured against the objective reasonable threshold for perfect self-defense announced in Head. See id. at ¶ 125. Once the evidence places perfect self-defense in issue, the State bears the burden of disproving the defense beyond a reasonable doubt. See id. at ¶ 106.

¶ 22. When applying the "some" evidence standard, the trial court must determine whether a reasonable construction of the evidence will support the defendant's theory "viewed in the most favorable light it will 'reasonably admit from the standpoint of the accused.' " Id. at ¶ 113 (citation omitted). If the evidence supports the defendant's theory and if that evidence viewed most favorably to the defendant would allow a jury to conclude that the State did not disprove the self-defense theory beyond a reasonable doubt, the factual basis for the defense theory has been satisfied and the court should submit the jury instruction. See id. at ¶¶ 5, 115.

¶ 23. The standard for reasonableness is "what a person of ordinary intelligence and prudence would have believed in the position of the defendant under the circumstances existing at the time of the alleged offense." Wis JI — Criminal 1014 (1994). The reasonableness of "that belief must be determined from the standpoint of the defendant at the time of his acts." Id. In applying the reasonableness standard, the court has recognized the relevance of some personal history evidence in the context of homicides in battered spouse situations. State v. Hampton, 207 Wis. 2d 367, 382, 558 N.W.2d 884 (Ct. App. 1996) (citing State v. Richardson, 189 Wis. 2d 418, 426, 525 N.W.2d 378 (Ct. App. 1994)).

¶ 24. Applying these standards to the facts, we conclude that, viewing the evidence in the light most favorable to Peters, a jury could conclude the State had not disproved the perfect self-defense theory beyond a reasonable doubt and that Peters reasonably believed she was preventing or terminating an unlawful interference with her person and reasonably believed the force she used was necessary to prevent imminent death or great bodily harm.

¶ 25. According to Peters, Marvin was psychologically and verbally abusive and she was afraid of him. Marvin kept guns in the house and, as Peters stated, he had been playing with the guns in the week before the shooting. The day before the shooting, Marvin looked down the scope of a gun at Peters and she was frightened he was going to shoot her. On that same day, when the couple had discussed divorce, Marvin told Peters that someone would die before there would be a divorce. The morning of the shooting the couple was arguing and Marvin picked up the phone to call a lawyer (as the State notes in its brief, presumably to discuss divorce). When Peters asked to call her son to have him come and pick her up that morning, Marvin pulled the phone cords out of the wall and told her she was not going anywhere.

¶ 26. Further, Peters testified that just before she shot Marvin she had thought that he had dropped his hand and was reaching for a gun that he usually kept near where he was sitting at the time. Nord and Zimmerman both testified that Marvin normally placed a gun near the chair he was sitting in when Peters shot him. Nord stated that he thought that it would not be difficult for Marvin to reach the gun from where he sat. Finally, when he arrived at the scene, Marvin's son, Stephen, stated to the 911 dispatcher, who confirmed that Stephen made the statement, that a rifle was located in the area of Marvin's body.

¶ 27. In support of its argument that the trial court properly rejected the perfect self-defense jury instructions, the State observes that the trial court took note of several credibility problems with Peters' version of the events in rendering its decision. The trial court recognized that the police found the rifle in the corner of the dining room behind a bookcase and covered in cobwebs, which contradicts the statements Stephen made to the 911 dispatcher, and noted that Peters did not tell police about seeing Marvin move his hand toward where he usually kept the rifle until six months after the shooting. Finally, in reaching its conclusion, the trial court, like the court of appeals in Head, placed great weight on the fact that Peters did not testify that Marvin had made any direct verbal threats against her or that he had engaged in any overtly violent acts or gestures at the time she shot him. These issues involve the weight and credibility of the evidence and the reasonableness of Peters' beliefs and, as such, are more properly addressed to a jury.

¶ 28. The question before us, as it was by law before the trial court, is not what the "totality of the evidence" reveals but rather, whether a reasonable construction of the evidence viewed in the light most favorable to the defendant will support the defendant's theory. See State v. Mendoza, 80 Wis. 2d 122, 153, 258 N.W.2d 260 (1977). If the question is answered affirmatively, then it is for the jury, not for the trial court or this court, to determine whether to believe the defendant's version of the events. Id. Peters has met her burden under the "some" evidence standard and it is for the jury to decide whether to believe her version of the events.

¶ 29. Since we have determined that the trial court committed error, we must therefore assess whether the substantial rights of Peters have been affected. An error does not affect the substantial rights of a defendant if it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. State v. Harvey, 2002 WI 93, ¶ 49, No. 00-0541-CR. If the jury had been properly instructed, it could have concluded that Peters did have a reasonable belief that she needed to act in self-defense and, therefore, may not have returned a guilty verdict. Thus, the error the trial court committed is not harmless and we reverse and remand the case to the trial court for a new trial.

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

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

       In Shirley Peters' initial statements to the police she did not relate that she had seen Marvin move his hand to where he usually kept the rifle at the time she shot him. Six months after the shooting, Peters mentioned in a statement to a corrections officer that she thought Marvin was dropping his right hand towards his rifle.

       Because this case may be retried, we note that it is important to make an observation concerning defense counsel's presentation of battered women's syndrome. At trial, counsel questioned two witnesses who worked in the domestic violence field, Debra Adams and Mary Beth Kelly, about the general dynamics of domestic abuse. Counsel did not ask either witness any questions or hypotheticals directly related to Peters. At the postconviction hearing, counsel testified that he understood the law to limit expert testimony to giving examples of the cycle of abuse, the type of conduct expected in an abusive relationship, and the responses of victims of abuse. This is an incomplete statement of the law regarding expert testimony and battered women's syndrome. Comparison testimony is permitted so long as it does not include conclusions about the battered person's actual beliefs at the time of the offense, about the reasonableness of those beliefs or about the person's state of mind before, during and after the criminal act. State v. Richardson, 189 Wis. 2d 418, 426, 525 N.W.2d 378 (Ct. App. 1994). Thus, counsel could have elicited testimony from Kelly and Adams comparing Peters' situation to the profile of a battered woman. Further, Jennifer Parker, a domestic violence expert retained for the purposes of the postconviction hearing, stated that she could have testified about the lasting impact of verbal and psychological abuse on victims generally and how Peters compared to the profile of the verbally and psychologically battered woman she had constructed. Comparison testimony from Kelly, Adams and Parker could have provided a context both from which the judge could have made an informed determination about whether to issue a self-defense jury instruction and from which the jury could understand, and in the case of perfect self-defense assess the reasonableness of, Peters' beliefs that she was in imminent danger of death or great bodily harm and that the force used was necessary to defend herself. See id. at 427.

       The "some" evidence standard is a relatively low threshold, in part because of the distinct functions of judge and jury. Walter Dickey, David Schultz & James Fullin, Jr., The Importance of Clarity in the Law of Homicide: The Wisconsin Revision, 1989 Wis. L. Rev. 1323, 1347. First, evaluating the weight and credibility of evidence is traditionally within the province of the jury. Id. Second, perfect self-defense has a significant objective component requiring the evaluation of the reasonableness of the defendant's belief or actions. See id. Such evaluations require the application of a community standard that also traditionally has been entrusted to the jury. Id.

       We appreciate that the facts in this case very much resemble those in Head and the law is directly from Head. But in Head, the supreme court was not convinced that the perfect self-defense instruction would have been given even had the trial court had the benefit of Head. For this reason, the court left it up to the trial court at the possible retrial to consider whether the perfect self-defense instruction should be given. State v. Head, 2002 WI 99, ¶ 4, No. 99-3071-CR. Here, we conclude that remand with directions similar to those given in Head would be inappropriate. In the first trial, there was "some" evidence from which the jury could find that a reasonable person in Peters' position would have felt that her life was in danger and that acting in self-defense was necessary. Therefore, if there is a new trial and the evidence produced by Peters is substantially similar to that produced in the first trial, the trial court must give the perfect self-defense instruction. By so holding, it is evident that we do not read Head to mandate a remand with the same directions as those announced in Head in every case.


source: Caselaw Access Project

author: VERGERONT, PJ.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Appellant, v. Thomas W Grimm, Defendant-Respondent.
    Court of Appeals

      No. 01-0138-CR.

      Submitted on briefs July 8, 2002.

    Decided September 19, 2002.

    2002 WI App 242
    (Also reported in 653 N.W.2d 284.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Jennifer E. Nashold, assistant attorney general, and James E. Doyle, attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Daniel W. Hildebrand of DeWitt Ross & Stevens S.C., Madison.
    Before Vergeront, PJ., Dykman and Deininger, JJ.
   VERGERONT, PJ.

¶ 1. The State of Wisconsin appeals an order dismissing the charges against Thomas Grimm of attempted child enticement contrary to Wis. Stat. § 948.07(1) (1999-2000), and attempted second-degree sexual assault of a child contrary to Wis. Stat. §§ 939.32 and 948.02(2). The issues on appeal are whether these crimes may be charged when the intended victim is actually an adult posing online as a child, and whether the allegations of the complaint are sufficient to establish probable cause that Grimm committed the crimes. We conclude that under State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287, and State v. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359, the State may properly charge attempted child enticement and attempted second-degree sexual assault of a child when the intended victim is actually an adult whom the defendant believes to be a child. We also conclude the allegations of the complaint are sufficient to establish probable cause for both crimes. Accordingly, we reverse the order dismissing the complaint and remand for further proceedings.

BACKGROUND

¶ 2. The amended complaint alleged as follows. On October 17, 2000, Division of Criminal Investigation Special Agent Eric Szatkowski signed on to America Online (AOL) as "BackdoorboyLOL," a fourteen-year-old boy named "Andre" from Portage. At approximately 4:34 p.m., BackdoorboyLOL entered an AOL town square chat room called "Wisconsin M4M." At about 4:42 p.m., BackdoorboyLOL received an "Instant Message" from "LA90405," later identified as Grimm, stating, "dude, what's up." Grimm and Szatkowski engaged in an Instant Message conversation for about forty-four minutes.

¶ 3. During that conversation, the two exchanged photographs through e-mail. BackdoorboyLOL sent a photograph of another officer taken when the officer was approximately fourteen years old. Grimm sent a picture of an adult male lying down on a couch wearing an unbuttoned long-sleeved shirt and a pair of shorts. After receiving the photograph of the fourteen year old, Grimm told BackdoorboyLOL he was "cute." Grimm also asked BackdoorboyLOL what his body and, specifically, his penis looked like, and what sexual acts he had performed with males. BackdoorboyLOL responded that he had engaged in "bj's, jo, kissin" and that he "always wanted to try anal." Grimm responded, "cool." Grimm then asked BackdoorboyLOL if the boy could travel to Madison, where Grimm was located. Back-doorboyLOL stated that he was too young to drive. Grimm then offered to pick him up. When Backdoor-boyLOL asked Grimm what specific acts they would engage in, Grimm said that they could do whatever BackdoorboyLOL wanted. BackdoorboyLOL then asked Grimm what he was "into," and Grimm responded that he was into "suckin, getting sucked, and fucking." During the conversation, BackdoorboyLOL sent to Grimm two. other photographs of the other officer at age fourteen. Grimm told BackdoorboyLOL to meet him back online at 6:15 p.m. because he had to wait for the person he worked with to bring back his vehicle. BackdoorboyLOL agreed, and the first conversation ended at approximately 5:28 p.m.

¶ 4. At about 6:15 p.m., Szatkowski was notified through BackdoorboyLOL's "buddy list" that Grimm was online. BackdoorboyLOL and Grimm then engaged in another Instant Message conversation for eighteen minutes. Grimm agreed to meet BackdoorboyLOL outside the McDonald's on U.S. Highway 51 near the intersection of Highway 51 and Interstate 39. Grimm told BackdoorboyLOL that he would be driving a blue vehicle, and that he would get there between 7:45 p.m. and 8:00 p.m. Grimm stated that he would get a hotel room in the area for himself and BackdoorboyLOL. BackdoorboyLOL told Grimm that he could stay out until 10:00 p.m., his curfew.

¶ 5. DCI Special Agent Michael Hoell and Columbia County Sheriffs Detective Lieutenant Wayne Smith undertook surveillance at the McDonald's restaurant. At 7:57 p.m., the officers observed a blue 2000 Ford Contour arrive in the parking lot. When a man got out of the car, Deputy Chad Roberts, who was posing as BackdoorboyLOL, asked him if he was "LA." The man responded he was. The man was identified as Grimm through identification discovered on his person.

¶ 6. Grimm moved to dismiss the complaint, asserting that commission of the crimes was "legally impossible" because the alleged victim was actually an adult, and that the complaint did not establish probable cause that Grimm committed the crimes charged. The court agreed with Grimm and granted the motion.

DISCUSSION

¶ 7. The first issue we address is whether a defendant may properly be charged with attempted child enticement and attempted sexual assault of a child when the intended victim is an adult whom the defendant believes to be a child. Since the resolution of this issue involves construction of statutes, it presents questions of law, which we review de novo. State v. Jensen, 2000 WI 84, ¶ 12, 236 Wis. 2d 521, 613 N.W.2d 170.

¶ 8. We conclude that Koenck, 2001 WI App 93, decided after the circuit court entered the order to dismiss, and Robins, 2002 WI 65, decided after briefing on appeal was completed, control the outcome of this issue.

¶ 9. In both Koenck and Robins, the defendants were charged with attempted child enticement when they attempted to meet in person with fictitious children they had met over the Internet for purposes of sexual contact; in both cases the persons with whom they had been communicating were actually adults. Koenck, 2001 WI App 93 at ¶¶ 2-6; Robins, 2002 WI 65 at ¶¶ 4-6. In Koenck, we concluded that the fact that the intended victim was actually an adult was not a bar to bringing the charge of attempted child enticement. 2001 WI App 93 at ¶ 28. Rather, the fictitiousness of the children was an extraneous factor beyond the defendant's control within the meaning of the "attempt" statute. 2001 WI App 93, ¶ 29. The "attempt" statute, Wis. Stat. § 939.32, provides in part:

Attempt. (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.

In Robins, the supreme court adopted the same reasoning and came to the same conclusion as we did in Koenck. 2002 WI 65 at ¶ 28. Therefore, it is now established that Grimm may be charged with attempted child enticement even though Backdoorboy-LOL was not a child.

¶ 10. With respect to the charge of attempted second-degree sexual assault of a child, the definition of attempt in Wis. Stat. § 939.32(3) is applicable to this crime as well as to attempted child enticement. Therefore, the reasoning in Koenck and Robins is equally applicable to the charge of attempted second-degree sexual assault of a child.

¶ 11. Grimm presents an additional argument regarding this charge, which, according to him, we did not address in Koenck. He asserts that second-degree sexual assault of a child cannot be "attempted" because Wis. Stat. § 948.02(2) is a "strict liability" offense with respect to the age of the child. Grimm points out that mistake as to the age of a minor is not a defense. Wis. Stat. § 939.43(2). See also Wis. Stat. § 939.23(6) (criminal intent does not require knowledge of the age of the minor even though age is a material element). He then cites State v. Briggs, 218 Wis. 2d 61, 66, 579 N.W.2d 783 (Ct. App. 1998), in which we held that attempted felony murder is not a crime because the crime of felony murder does not include intent.

¶ 12. Robins addressed this argument in the context of attempted child enticement and rejected it. The court in Robins held that, in contrast to felony murder, child enticement does have an intent element: Wis. Stat. § 948.07 is not violated unless the perpetrator committed or attempted the act of enticement with one or more of the specific enumerated prohibited intents. 2002 WI 65 at ¶ 30. The court therefore concluded that attempted child enticement was not an impermissible crime under the rationale of Briggs. Id.

¶ 13. The elements of second-degree sexual assault of a child are: (1) sexual contact or sexual intercourse, and (2) with a child who has not yet attained the age of sixteen. Wis. Stat. § 948.02(2). "Sexual contact" means only intentional touching for certain specified purposes. Wis. Stat. § 948.01(5)(a). Beyond asserting that the rationale of Briggs precludes a charge of attempted second-degree sexual assault of a child, Grimm does not develop an argument that is not foreclosed by the court's decision in Robins. We therefore do not address this point further.

¶ 14. Because we conclude that the reasoning of Koenck and Robins applies to the charge of attempted second-degree sexual assault of a child, we hold that Grimm may be charged with this crime even though BackdoorboyLOL was not a child.

¶ 15. We next address the issue whether the complaint alleges sufficient facts to establish probable cause that Grimm committed the crimes charged. This also is a question of law, and our review is therefore de novo. State v. Manthey, 169 Wis. 2d 673, 685, 487 N.W.2d 44 (Ct. App. 1992). The facts and reasonable inferences drawn from facts in a complaint must allow a reasonable person to conclude that a crime was probably committed and that the defendant was probably culpable. State v. Haugen, 52 Wis. 2d 791, 793, 191 N.W.2d 12 (1971). Where reasonable inferences may be drawn establishing probable cause to support a charge and equally reasonable inferences may be drawn to the contrary, the criminal complaint is sufficient. Manthey, 169 Wis. 2d at 688-89.

¶ 16. Turning first to the charge of attempted child enticement, Wis. Stat. § 948.07 provides in relevant part:

Whoever, with intent to commit any of the following acts, causes or attempts to cause any child who has not attained the age of 18 years to go into any vehicle, building, room or secluded place is guilty of a Class BC felony: (1) Having sexual contact or sexual intercourse with the child....

¶ 17. The allegations in the complaint supporting this charge against Grimm 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, Robins suggested that he and the child get a hotel room. 2002 WT 65 at ¶¶ 5-8. They set a meeting time and place, and Robins drove to that place at the assigned time, where he was arrested. Id. at ¶¶ 11-14. The court concluded these allegations "easily established] probable cause . . . that [the defendant] 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. at ¶ 38.

¶ 18. We reach the same conclusion in this case. It is reasonable to infer that Grimm saw BackdoorboyLOL's AOL profile, and from that inference and the conversations between Grimm and Back-doorboyLOL, including BackdoorboyLOL's comment that he was too young to drive, it is reasonable to infer that Grimm believed the person he was talking to was younger than sixteen. It is also reasonable to infer from the discussion of sexual activity that Grimm intended to have sexual contact with the person he believed to be younger than sixteen. The complaint alleges that Grimm told the person (over the Internet) he was going to get a hotel room, that he set a meeting time and place, that he arrived at the place at the assigned time, and that he got out of his car and spoke to the intended victim. It is reasonable to infer from these allegations that Grimm had the intent to entice a child into a "vehicle, building, room, or secluded place" for sexual contact or 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.

¶ 19. The circuit court here was of the view that more acts had to be alleged in furtherance of the criminal objective, such as attempts to have the child get into a vehicle or go into a hotel room or a secluded place. However, Robins makes it clear that going to meet at the planned time and place is a sufficient unequivocal act in furtherance of the criminal objective of child enticement, when earlier conversations provide reasonable inferences of that criminal objective.

¶ 20. Turning to the charge of attempted second-degree sexual assault of a child, we conclude the allegations of the complaint are sufficient to show probable cause for this crime as well. As we have already explained, the facts alleged and their reasonable inferences permit the conclusion that Grimm intended to have sexual contact with a person he believed to be under sixteen. Arranging a time and place to meet that person, arriving at that place at the assigned time, and getting out of the car and talking to the person are acts in furtherance of that criminal objective; and it is reasonable to infer from these acts, in light of the preceding conversations, that Grimm would have committed the crime except for the intervention of another person or some extraneous factor. More specifically, the facts alleged and their reasonable inferences are sufficient to show that, had a fourteen-year-old boy rather than a law enforcement officer met Grimm at the McDonald's parking lot, Grimm would have had sexual contact with the boy. Again, we disagree with the circuit court that the complaint was deficient because it did not allege acts more specifically related to sexual contact. Even if it were reasonable to infer from the complaint that Grimm might not have had sexual contact with the fourteen-year-old boy he expected to meet, it is equally reasonable, if not more so, to infer that Grimm would have done so.

¶ 21. Grimm relies on cases decided under an earlier statute in support of his argument that the complaint does not allege acts sufficient to show attempted second-degree sexual assault of a child: Lhost v. State, 85 Wis. 2d 620, 271 N.W.2d 121 (1978); Adams v. State, 57 Wis. 2d 515, 204 N.W.2d 657 (1973); and Oakley v. State, 22 Wis. 2d 298, 309, 125 N.W.2d 657 (1964). However, because of the differences between the earlier statute and Wis. Stat. § 948.02(2), these cases are not useful in analyzing the sufficiency of the charge against Grimm. The earlier statute, Wis. Stat. § 944.01 (1961), required sexual intercourse "by force and against [the] will [of the victim]," which was defined to mean "either that her utmost resistance is overcome or prevented by physical violence or that her will to resist is overcome by threats of imminent physical violence likely to cause great bodily harm." The fact that convictions for attempted rape under this statute were upheld in the first two cases, where the completion of the assault was thwarted by a scream or other resistance of the victim, sheds no light on what a complaint must allege for an attempted sexual assault under § 948.02(2), which requires no force.

¶ 22. For similar reasons, Oakley does not advance Grimm's position. Grimm points out that in Oakley the court reversed a conviction for attempted rape because the defendant desisted when the victim used verbal pleadings and pushed his hand away. 22 Wis. 2d at 309. According to Grimm, because that defendant went much further in the commission of a sexual assault than this complaint alleges Grimm did, this complaint is insufficient. However, the reason for the reversal in Oakley was that the relative ease with which the victim warded off the defendant cast doubt on the defendant's intent to have sexual intercourse "by force and against the will of' the victim. Id. Such an intent is not required for attempted second-degree sexual assault of a child under Wis. Stat. § 948.02(2).

¶ 23. Because we conclude the circuit court erred in dismissing the complaint, we reverse the order of dismissal and remand for further proceedings.

By the Court — Order reversed and cause remanded.

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

       We placed this appeal on hold pending the supreme court's decision in State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W 2d 287.

       In State v. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359, an adult woman pretended to be twin-twelve-year-old girls.

       In his brief, written before the supreme court decided Robins, Grimm argued that we erred in Koenck because our decision conflicted with State v. Smith, 202 Wis. 2d 21, 28, 549, N.W.2d 232 (1996), and we were therefore bound to follow Smith. Smith dealt with completed child enticement. We do not agree Koenck and Smith are in conflict. However, the more important point now is that Robins, not Smith, controls this case because Robins is concerned with an attempted, not a completed, crime.

       WISCONSIN Stat. § 948.01(5)(a) provides:
      (a) Intentional touching by the complainant or defendant, either directly or through clothing by the use of any body part or object, of the complainant's or defendant's intimate parts if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant.

       We emphasize that we are examining the complaint for probable cause, not to determine whether the facts as pleaded would establish guilt according to some higher standard.

       Wisconsin Stat. § 944.01 was repealed by Laws of 1975, ch. 184, § 7, effective March 27, 1976, and replaced by Wis. Stat. § 940.225.


author: ROGGENSACK, J.

text:
    Susan Ulrich, Plaintiff-Appellant, v. Glenn Zemke and Nekoosa Credit Union, Defendants-Respondents.

    Court of Appeals

      No. 01-2195.

      Submitted on briefs April 17, 2002.

    Decided September 19, 2002.

    2002 WI App 246
    (Also reported in 654 N.W.2d 458.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Dana W. Dunccm of Schmidt, Grace & Duncan of Wisconsin Rapids.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Sandra J. Zenor of LaChapelle, Rushevics & Lloyd of Wisconsin Rapids.
    Before Roggensack, Deininger and Lundsten, JJ.

       Petition to review denied 12-10-02.

   ROGGENSACK, J.

¶ 1. Susan Ulrich appeals the judgment which resulted from an action for unjust enrichment dividing Ulrich and Glenn Zemke's real and personal property. Ulrich argues that the court applied an improper standard of law to her claim to a parcel of real estate located on Badger Road in Adams County (Badger). Ulrich also argues that the circuit court made erroneous findings of fact regarding the value of the parties' real estate and credits to be afforded to each party and that the circuit court calculated the equalization payment incorrectly. Because we agree that the circuit court applied an improper legal standard to Ulrich's unjust enrichment claim, we reverse the judgment awarding Zemke sole ownership of Badger. Additionally, because the equalization payment does not currently include consideration of Badger, we remand to the circuit court to divide Badger and its proceeds and to adjust the equalization payment accordingly. In all other respects, we affirm the judgment.

BACKGROUND

¶ 2. Glenn Zemke and Susan Ulrich lived together in Friendship, Wisconsin from November 1989 to January 1997. They have two children together and Ulrich has two children from a previous marriage. During the period of their cohabitation, Zemke and Ulrich both worked for Georgia-Pacific and earned comparable incomes. They maintained separate checking accounts but shared living expenses, including grocery and medical bills, life insurance, clothing expenses for the children, mortgage payments, telephone bills, utilities and miscellaneous household expenses. They also acquired three parcels of land: their residence (Homestead), real estate located on Buttercup Avenue (Buttercup) and Badger.

¶ 3. Zemke purchased Homestead in June 1989 as a small cabin, with a tiny bathroom, kitchen and one bedroom. In 1991, Zemke re-deeded the house to himself and Ulrich as joint tenants. To pay for home improvements, Zemke and Ulrich invested personal funds and refinanced the house through Nekoosa Credit Union for $55,000 in 1991 and for $66,000 in 1992. Together Zemke and Ulrich made significant improvements to the cabin such as adding bedrooms, tile and stone work, painting, varnishing and re-insulating. It is now a six-bedroom house with 4,000 square feet of living space.

¶ 4. Zemke and Ulrich purchased their second parcel of real estate, Buttercup, in September of 1991. While Buttercup was titled in Zemke's name alone, both Ulrich and Zemke made regular monthly mortgage payments on the property. In May of 1996, Ulrich and Zemke sold five acres of Buttercup and used the proceeds to repay a debt to Zemke's brother and to defray household expenses. After the couple separated, Zemke sold approximately ten acres of Buttercup in November of 1997 for $12,500 and approximately nine acres in November of 1998 for $2,520. Zemke retained the proceeds of the two sales.

¶ 5. The third parcel of real estate, Badger, was purchased in September of 1995. Zemke assumed a note of the prior owner, using Buttercup as collateral. The real estate was placed in Zemke's name and he paid the interest on the debt obligation. In 1996, two parcels from Badger were sold for a total of $35,200 and the proceeds used to reduce the mortgage balance on Badger, pay land survey costs and continue home improvements. Some of the proceeds may have also gone into Zemke's savings. In January of 1998, after the couple separated, Zemke sold a third parcel of Badger for $11,500 and retained the proceeds from the sale.

¶ 6. Following Ulrich and Zemke's separation, Ul-rich initiated an action against Zemke and Nekoosa Credit Union based on unjust enrichment, requesting the court to partition the parties' real and personal property. Following a court trial, the circuit court awarded Ulrich the residence and Buttercup, but required her to pay an equalization payment of $36,043 to Zemke for transferring the property. The court also divided the parties' personal property. However, the circuit court rejected Ulrich's claim to Badger and awarded Zemke sole ownership because Ulrich failed to demonstrate a "shared enterprise between the parties to justify an award to her of part of the Badger real estate."

¶ 7. Ulrich makes two arguments on appeal. First, she contends that the circuit court erred by rejecting her claim to Badger because the court applied an improper standard of law to her unjust enrichment claim. Second, Ulrich argues that the circuit court made erroneous findings of fact regarding the net value of the parties' real estate and credits to be afforded to each party and calculated the equalization payment incorrectly.

DISCUSSION

Standard of Review.

¶ 8. A circuit court's decision to grant equitable relief in an action for unjust enrichment is discretionary. See Watts v. Watts, 137 Wis. 2d 506, 530-34, 405 N.W.2d 303, 313-15 (1987). Discretionary decisions are sustained if the circuit court examined the relevant facts, applied a proper standard of law, and using a rational process, reached a conclusion that a reasonable judge could reach. Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175, 184 (1982). Whether the circuit court utilized the proper legal standard is a question of law we review de novo. Three & One Co. v. Geilfuss, 178 Wis. 2d 400, 410, 504 N.W.2d 393, 398 (Ct. App. 1993). Additionally, we will not set aside factual determinations made by the circuit court unless the findings are clearly erroneous. Wis. Stat. § 805.17(2) (1999-2000).

Unjust Enrichment.

¶ 9. Ulrich contends that the circuit court applied an improper standard of law to her unjust enrichment claim. Ulrich argues that the circuit court "erroneously applied the unjust enrichment standard to each parcel of land" rather than considering the overall scope of their joint enterprise and dividing the property accordingly. We agree.

¶ 10. Unmarried cohabitants may raise a claim based upon unjust enrichment following the termination of their relationship where one party attempts to retain an unreasonable amount of the property acquired through the efforts of both. Watts, 137 Wis. 2d at 532-33, 405 N.W.2d at 314. Such a claim is "grounded on the moral principle that one who has received a benefit has a duty to make restitution where retaining such a benefit would be unjust." Id. at 530, 405 N.W.2d at 313. An unjust enrichment action requires "proof of three elements: (1) a benefit conferred on the defendant by the plaintiff, (2) appreciation or knowledge by the defendant of the benefit, and (3) acceptance or retention of the benefit by the defendant under circumstances making it inequitable for the defendant to retain the benefit." Id. at 531, 405 N.W.2d at 313.

¶ 11. In nonmarital cohabitation actions, proof of the above three elements is demonstrated by showing: (1) an accumulation of assets, (2) acquired through the efforts of the claimant and the other party, and (3) retained by the other party in an unreasonable amount. Waage v. Borer, 188 Wis. 2d 324, 329-30, 525 N.W.2d 96, 98 (Ct. App. 1994). Or stated succinctly, the party claiming unjust enrichment must show that the parties engaged in a joint enterprise or mutual undertaking to accumulate assets. See Watts, 137 Wis. 2d at 533, 405 N.W.2d at 314. Once a party demonstrates the existence of a joint enterprise, equity principles demand that the parties be treated fairly and all assets accumulated as part of the joint enterprise be divided accordingly. A division of property otherwise would allow one party to benefit by retaining an unreasonable amount of property acquired through the efforts of both.

¶ 12. The circuit court, therefore, erred by analyzing Ulrich's unjust enrichment claim asset by asset. The proper legal standard requires the court to instead analyze the character of the parties' relationship by inquiring whether the relationship was a joint enterprise which encompassed the accumulation of assets. A court makes this determination by considering the total circumstances of the parties' relationship, specifically whether the parties' contributed property and services to the relationship producing an increase in wealth. See id. Any assets acquired during the time period when the parties acted as a joint enterprise must be divided equitably between the parties unless the court determines that the contested asset was acquired by independent means, outside the joint enterprises's domain.

¶ 13. Our reasoning is supported by our analysis in Ward v. Jahnke, 220 Wis. 2d 539, 583 N.W.2d 656 (Ct. App. 1998), where we held that a female cohabitant failed to satisfy the Watts standard because she lacked evidence of a mutual undertaking. Ward, 220 Wis. 2d at 550-51, 583 N.W.2d at 661. In Ward Dennis Jahnke and Sandra Ward agreed to live at Ward's apartment and that she would take responsibility for most living expenses so he could save for a down payment on a house. Id. at 544, 583 N.W.2d at 659. Jahnke purchased a home and he and Ward moved in together. Id. The court held that for the time period prior to Jahnke's purchase of the house, the couple engaged in a shared effort to accumulate a down payment on a house, substantiating her claim of unjust enrichment. Id. at 550, 583 N.W.2d at 661. The court, however, rejected Ward's claim for the time period following the purchase of the home because the evidence did not show a mutual effort toward the accumulation of assets. Id. The character of the relationship had changed and because it no longer embodied a joint enterprise to accumulate assets, her claim of unjust enrichment necessarily failed.

¶ 14. Applying the proper legal standard to the facts here, we conclude that Ulrich and Zemke acted as a joint enterprise to raise a family and accumulate assets together until their separation in January of 1997. During the approximately seven years the parties engaged in this joint enterprise, Ulrich and Zemke functioned as a family unit. Together they maintained a house, raised four children, shared living expenses and continually acquired real and personal property. Significantly, any proceeds realized by the sale of the parties' real estate, including Badger, were continually reinvested into the relationship until Ulrich and Zemke separated in 1997.

¶ 15. Zemke argues that the court properly awarded him Badger because the evidence demonstrated a "changed" financial relationship regarding the purchase of Badger. Zemke points out that Ulrich did not specifically participate in the Badger investment; Zemke negotiated the purchase, arranged for the land survey, prepared necessary documents and paid the real estate tax and interest on the debt. We disagree with Zemke's argument. During the period of their cohabitation, Ulrich and Zemke's financial relationship remained constant. The parties commingled their finances, shared expenses and acquired property through joint effort. Ulrich testified that when Zemke purchased Badger she did not approve because "if he had been paying his share of monthly bills and . . . grocery bills, he wouldn't have had any money to make a payment with." Ulrich's contribution to the relationship enabled Zemke to purchase Badger. It is therefore immaterial that Ulrich did not directly participate in the acquisition and maintenance of Badger.

¶ 16. Accordingly, we reverse the circuit court's judgment awarding Zemke sole ownership of Badger without requiring a credit against the equalization payment in Ulrich's favor, and we remand to the circuit court to determine an appropriate means of dividing Badger.

Factual Determinations.

¶ 17. Ulrich also argues that the circuit court made erroneous findings of fact regarding the value of the parties' real estate and credits to be afforded to each party and consequently calculated the equalization payment incorrectly. To substantiate her argument, Ulrich points to the following: (1) the court found that Badger was subject to a $42,350 mortgage, however, both parties testified that when they separated, the mortgage balance was $32,000, (2) the court found that Zemke sold two parcels of Badger for $11,500 and $23,700 but did not address whether the sale affected the equalization payment, (3) the court did not properly adjust the equalization payment for proceeds retained by Zemke for the sale of two parcels of Buttercup sold for $12,500 and $2,520 and (4) because the court failed to explain its method of calculating the equalization payment, Ulrich is unable to discern how the court reached a payment of $36,043. We consider Ulrich's claims in turn.

¶ 18. With regard to point one, both Ulrich and Zemke testified that at the time of trial, the mortgage owed on Badger was $42,491. The mortgage balance was greater at trial because following the parties' separation, Zemke borrowed money against Badger to pay child support and birthing costs. Therefore, on remand, we instruct the court to begin its division of Badger using the mortgage balance owed when the parties separated, which according to the record was $32,000. We leave it to the court's discretion to adjust that debt amount if any part of the increase in the mortgage balance was due to a debt for which Ulrich should also be responsible under the scope of the parties' joint enterprise.

¶ 19. With regard to point two, we disagree with Ulrich's argument that the court made erroneous findings of fact relating to the sale of two parcels of Badger that occurred on August 23,1996 and October 23,1996, prior to the parties' separation. Both Ulrich and Zemke testified that the proceeds realized from the sales, in the amounts of $11,500 and $23,700, were used to reduce the mortgage balance on the property, pay land survey costs, continue home improvements and that some may have gone into Zemke's savings. Because the proceeds were reinvested into the parties' joint enterprise, the circuit court did not need to consider the proceeds in calculating the equalization payment. However, following the parties' separation, Zemke sold a third parcel of Badger for $11,500 and retained the proceeds. On remand, we direct the circuit court to add this amount to the value of Badger so that Ulrich receives an equitable distribution of the proceeds realized from that sale.

¶ 20. We address points three and four together because both attack the methodology employed by the circuit court to calculate the equalization payment. Ulrich argues that the court did not properly adjust the equalization payment for proceeds retained by Zemke for the sale of two parcels of Buttercup and that the payment is "erroneous" because the court failed to adequately explain its methodology. We disagree. Because the division of Ulrich and Zemke's property is discretionary, a circuit court should provide a reasoned explanation for its determinations. See Watts, 137 Wis. 2d at 530-34, 405 N.W.2d at 313-15; Finley v. Finley, 2002 WI App 144, ¶ 26, 256 Wis. 2d 508, 648 N.W.2d 536. However, when a circuit court does not explain its reasons for a discretionary decision, we may search the record to determine whether it supports the court's decision, Randall v. Randall, 2000 WI App 98, ¶ 7, 235 Wis. 2d 1, 612 N.W.2d 737, and we do so here.

¶ 21. Ulrich challenges the circuit court's calculation of a credit in the amount of $5728 for one-half the proceeds of the sale of Buttercup because the court did not explain how it calculated that amount. We reject her challenge as it is evident from the record that the court reached a credit of $5728 based on Zemke's testimony regarding the net value realized from the two sales after Zemke paid state and federal capital gain taxes. Ulrich also argues that the court's method of calculating the equalization payment is "erroneous" because it is "uncertain and unknown." However, upon careful review of the record, we were able to identify and replicate the court's figures and therefore conclude that the court's methodology was not erroneous. However, because the court failed to consider Badger in calculating the equalization payment, we cannot sustain the equalization payment as it currently stands. Accordingly, we remand to the circuit court to divide Badger and to revise the equalization payment consistent with this opinion.

CONCLUSION

¶ 22. Because we agree that the circuit court applied an improper legal standard to Ulrich's unjust enrichment claim, we reverse the judgment awarding Zemke sole ownership of Badger. Additionally, because the equalization payment does not currently include consideration of Badger, we remand to the circuit court to recalculate the equalization payment consistent with this opinion. In all other respects, we affirm the judgment.

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

       Ulrich received $750 in child support each month for her two children from a previous marriage.

       Nekoosa Credit Union holds a mortgage lien on Homestead for which Zemke and Ulrich are jointly and severally liable. Because the mortgage will be protected despite the outcome of this action, Nekoosa Credit Union did not participate in the court trial or this appeal.

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

       For example, both Ulrich and Zemke made regular monthly mortgage payments on Buttercup and Zemke later used Buttercup as collateral to secure Badger.

       Zemke testified that he borrowed money against the mortgage to pay birthing expenses for Ulrich and Zemke's two children. Birthing costs could be considered an expense of their joint enterprise. However, we leave it to the circuit court to determine whether Ulrich is responsible for some amount of the increase in the mortgage balance that is attributable to the birthing costs.


author: LUNDSTEN, J.

text:
    General Casualty Company of Wisconsin and Regent Insurance Company, Petitioners-Respondents, v. Wisconsin Department of Revenue, Respondent-Appellant.
    Court of Appeals

      No. 01-2810.

      Submitted on briefs April 17, 2002.

    Decided September 19, 2002.

    2002 WI App 248
    (Also reported in 653 N.W.2d 513.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of F Thomas Creeron III, assistant attorney general, and James E. Doyle, attorney general.

      On behalf of the petitioners-respondents, the cause was submitted on the brief of Robert E. Chritton and James D. Peterson of LaFollette Godfrey & Kahn, Madison.
    Before Vergeront, EJ., Dykman and Lundsten, JJ.

       Petition to review denied 12-10-02.

   LUNDSTEN, J.

¶ 1. The dispute in this case arises from a Department of Revenue (DOR) audit which resulted in the assessment of, among other amounts, normal interest on underpaid estimated taxes and delinquent interest on the underpayment interest under Wis. Stat. § 71.84(2)(a) (1997-98) to General Casualty Company of Wisconsin and Regent Insurance Company (the Companies). The Companies petitioned the Tax Appeals Commission for a redetermination of the assessment of delinquent interest. The commission concluded that DOR correctly imposed delinquent interest pursuant to § 71.84(2)(a). The Companies petitioned the circuit court for judicial review. The circuit court reversed the commission. We now reverse the order of the circuit court and affirm the commission.

Background

¶ 2. The parties stipulated to the following facts. In 1990, the Companies were acquired by a third party. As a result of the acquisition, certain intangible assets of the Companies were amortized over various time periods ranging from one to seven years. In 1997, the Internal Revenue Service agreed to a settlement with respect to the amortizable life of the intangible assets, increasing the amortization period to fifteen years. The use of the fifteen-year amortization period created additional federal taxable income, thereby increasing the Companies' Wisconsin tax liability. Subsequent to a DOR field audit, DOR assessed the Companies with additional taxes for the tax years 1990, 1991, 1992, 1993, 1994, and 1995 (the audit period).

¶ 3. The increased tax liability had not been reported on the Companies' filed tax returns during the audit period, and therefore the Companies' estimated tax payments were insufficient for those tax years under Wis. Stat. § 71.29(10). Acting under Wis. Stat. § 71.84(2)(a), for each year in the audit period, DOR assessed normal (12%) interest on the underpaid estimated taxes for the period from when the estimated taxes were due until March 15 of the following year, in addition to other assessments. DOR then imposed delinquent (18%) interest on the underpayment interest from March 15 of the year following each tax year to October 5, 1999, when the Companies made a final payment to DOR.

Standard of Review

¶ 4. This case concerns the commission's interpretation of a statute. "In an appeal involving an administrative agency's decision, this court reviews the decision of the administrative agency, not that of the circuit court." Lilly v. DHSS, 198 Wis. 2d 729, 734, 543 N.W.2d 548 (Ct. App. 1995). The proper construction of a statute is a question of law, which we normally review de novo. See DeMars v. LaPour, 123 Wis. 2d 366, 370, 366 N.W.2d 891 (1985). While we. defer to statutory interpretations by agencies in certain situations, UFE Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57 (1996), an agency's interpretation "is only of significance where there is an ambiguity in the statute." Lincoln Sav. Bank, S.A. v. DOR, 215 Wis. 2d 430, 443, 573 N.W.2d 522 (1998) (citations omitted). Because we conclude that Wis. Stat. § 71.84(2)(a) is unambiguous on its face, we need not determine the level of deference granted to the commission.

Discussion

¶ 5. Under Wis. Stat. § 71.29(2) and (8), corporations must make quarterly estimated tax payments. These estimated tax payments must total at least 90% of the tax owed for the year. Wis. Stat. § 71.29(10). The remaining 10% of the tax is due by March 15 of the following year. Wis. Stat. § 71.24(9)(a).

¶ 6. Under the first sentence of Wis. Stat. § 71.84(2)(a), corporations that fail to make sufficient quarterly estimated tax payments must pay normal interest, at 12%, on underpaid estimated taxes from the time the quarterly payment should have been made to the time payment is made or until March 15 of the following year, whichever is sooner. Where, as here, a corporation fails to pay prior to March 15, two amounts are due: (1) the underpaid taxes themselves, and (2) the normal interest which has accrued on the underpayments as of March 15 (underpayment interest).

¶ 7. When, as in this case, the underpaid estimated taxes and the underpayment interest remain unpaid after March 15, both amounts continue to accrue interest. The last sentence of § 71.84(2)(a), the statutory language at issue here, controls the amount of interest that accrues on the underpayment interest from March 15 to the time the underpayment interest is paid.

¶ 8. The dispute here centers on the meaning of "return" in the last sentence in § 71.84(2)(a) when that sentence is applied in the context of an audited return. Section 71.84(2)(a) states, in relevant part:

Except as provided in s. 71.29(7), in the case of any underpayment of estimated tax under s. 71.29 or 71.48 there shall be added to the aggregate tax for the taxable year interest at the rate of 12% per year on the amount of the underpayment for the period of the underpayment .... If 90% of the tax shown on the return is not paid by the 15th day of the 3rd month following the close of the taxable year,. .. any interest due .. . shall accrue delinquent interest under s. 71.91(1)(a).

¶ 9. The parties agree that- the last sentence of § 71.84(2)(a) imposes delinquent interest on underpayment interest due according to the filed return, but which goes unpaid. To take an example of this agreement, if a corporation owes $5,000 in underpayment interest according to its filed return, but fails to pay that amount by March 15, the unpaid amount accrues interest at the delinquent interest rate, which is 18%.

¶ 10. The disagreement here concerns what happens if a subsequent audit determines that the underpayment interest is greater than the amount suggested by the filed return. In that situation, DOR contends that the last sentence of § 71.84(2) (a) unambiguously mandates delinquent interest be applied to the underpayment interest, regardless whether that amount is calculated according to the filed return or according to the post-audit tax liability. DOR contends that under §§ 71.29 and 71.84(2)(a), this is true because the amount of underpayment interest is determined by reference to "90% of the tax shown on the return” and the word "return" in this phrase is defined in § 71.29(l)(a) as "a return that would show the tax properly due," not the amount shown on the return as filed. DOR asserts that § 71.84(2) (a) adopts this definition of "return" for purposes of the entire § 71.84(2)(a) subsection. The Companies argue that § 71.84(2)(a) does not adopt § 71.29(1) (a)'s definition of return, and that interest on the underpayment interest after March 15 should accrue at normal interest (12%).

¶ 11. The commission adopted DOR's view that the statutes unambiguously authorize DOR to impose delinquent interest on the underpayment interest. Accordingly, the proper resolution of this dispute requires that we construe the word "return" in the last sentence of§ 71.84(2)(a).

¶ 12. Statutory interpretation begins with the language of the statute. Alberte v. Anew Health Care Servs., Inc., 2000 WI 7, ¶ 10, 232 Wis. 2d 587, 605 N.W.2d 515. Courts do not look at a single, isolated sentence or portion of a sentence, but at the role of the relevant language in the entire statute. Id. A statute is ambiguous if reasonable persons could disagree as to its meaning. State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986). Further, "[e]ven when a statute appears unambiguous on its face, it can be rendered ambiguous by its interaction with and its relation to other statutes." State v. White, 97 Wis. 2d 193, 198, 295 N.W.2d 346 (1980). Only when statutory language is ambiguous may we examine other construction aids such as legislative history, context, and subject matter. State v. Waalen, 130 Wis. 2d 18, 24, 386 N.W.2d 47 (1986).

¶ 13. We agree with DOR that the plain language of § 71.84(2) (a) compels the conclusion that the definition of "return" found in § 71.29 applies to both the first and the last sentences in § 71.84(2)(a). The first sentence of § 71.84(2)(a) imposes normal interest on underpaid estimated tax as determined by § 71.29. Under § 71.29(10), corporations must pay an estimated tax equal to "[n]inety percent of the tax shown on the return. . . ." The term "return" is defined in § 71.29(l)(a) as a "return that would show the tax properly due." Thus, "return" as defined in § 71.29(l)(a) means a return showing the proper amount due, regardless whether the audited amount due is higher than the amount shown on the filed return. The first sentence of § 71.84(2)(a) incorporates by reference the calculations in § 71.29(10) and the definition of "return" used by § 71.29(10). It follows that the first sentence of § 71.84(2)(a) imposes normal interest if a corporation fails to pay "[n]inety percent of the tax shown on the return" prior to March 15, regardless whether the filed return has been modified by an audit.

¶ 14. We now turn to the sentence at issue here, the last sentence of § 71.84(2)(a). That sentence provides, in pertinent part: "If 90% of the tax shown on the return is not paid by the 15th day of the 3rd month following the close of the taxable year,.. . any interest due. . . shall accrue delinquent interest under s. 71.91(l)(a)." There is no reason to define "return" differently in the first sentence of § 71.84(2)(a), which incorporates by reference both the word "return" and its meaning from § 71.29(l)(a), than in the last sentence of the same subsection. The last sentence contains nothing suggesting "return" has a different meaning from that used by incorporation in the first sentence. We see no reason why the rule of construction that "[w]ords or phrases appearing in the same statute are given the same meaning" should not apply here. State v. Dismuke, 2001 WI 75, ¶ 21, 244 Wis. 2d 457, 628 N.W.2d 791.

¶ 15. Our analysis is supported by the fact that the Companies have failed to present a viable alternate interpretation of "return" in the last sentence of § 71.84(2)(a). The Companies admit that the last sentence of § 71.84(2)(a) requires that delinquent interest accrue on underpayment interest due according to the filed return which goes unpaid. At the same time, the Companies contend that the last sentence does not apply to post-audit assessments. The flaw in the Companies' view is that § 71.84(2)(a) provides no support for such an interpretation. As DOR correctly points out, for the Companies' interpretation to be valid, we would have to read the words "unless DOR makes a post-audit assessment," or words to that effect, into the last sentence of § 71.84(2)(a). We cannot rewrite the statute to aid the Companies' alternate interpretation. See A. v. Racine County, 119 Wis. 2d 349, 354, 349 N.W.2d 743 (Ct. App. 1984) ("We have no right or power to amend a statute by the insertion of additional language."); see also State v. Hall, 207 Wis. 2d 54, 82, 557 N.W.2d 778 (1997) ("[CJourts cannot go beyond the province of legitimate construction .. ., and where the meaning is plain, words cannot be read into it or out of it for the purpose of saving one or other possible alternative.").

¶ 16. The Companies argue that DOR's reading of § 71.84(2)(a) conflicts with related statutes. First, they argue that § 71.84(2)(a) contradicts the plain language of § 71.29. The Companies assert that importing the definition of "return" in § 71.29(l)(a) into § 71.84(2)(a) directly contradicts the plain language of § 71.29* because § 71.29(1) expressly limits its definitions to "this section." DOR's interpretation, the Companies contend, conflicts with the plain language of § 71.29(l)(a) by extending the definition of "return" to all of Wis. Stat. ch. 71. We disagree. DOR's interpretation imports § 71.29's definition of "return" into a single subsection and does so because that subsection contains an express cross-reference to § 71.29. See, e.g., State v. Dawson, 195 Wis. 2d 161, 168 n.2, 536 N.W.2d 119 (Ct. App. 1995) (definition from a cross-referenced statute properly used despite language in the cross-referenced statute limiting use of the definition to specified chapters). To.the extent the Companies argue that the cross-reference to § 71.29 does not incorporate all of the special definitions in § 71.29, we have already shown in paragraph 13 how this cross-reference necessarily incorporates the definition of return in § 71.29.

¶ 17. The Companies also argue that DOR's interpretation of the last sentence of § 71.84(2) (a) conflicts with related statutes which control the interest rate on delinquent estimated taxes determined during post-audit assessments. We have thus far been concerned with that portion of the last sentence of § 71.84(2) (a) which imposes interest on underpayment interest. However, the full text of the last sentence reads: "If 90% of the tax shown on the return is not paid by the 15th day of the 3rd month following the close of the taxable year, the difference between that amount and the estimated taxes paid, along with any interest due, shall accrue delinquent interest under s. 71.91(l)(a)." Wis. Stat. § 71.84(2)(a) (emphasis added). The Companies assert that if this sentence is read as suggested by DOR, then DOR has the authority to impose delinquent interest not only on underpayment interest, but also on unpaid taxes. The Companies contend that such a reading is in conflict with Wis. Stat. §§ 71.24(9)(b) and 71.74(12), which direct that such unpaid taxes accrue normal interest until a specified date following an audit.

¶ 18. However, DOR has not imposed delinquent interest on the Companies' unpaid taxes, and we are not faced with the conflict suggested by the Companies. The portion of the last sentence of § 71.84(2) (a) with which we deal here is severable from the language the Companies assert creates a conflict. The Companies do not assert that the phrase "along with" in § 71.84(2) (a) creates an unbreakable link between "the difference between that amount and the estimated taxes paid" and "any interest due." Nor should they, as nothing in the above-quoted language prevents delinquent interest from being imposed on underpayment interest without also imposing delinquent interest on unpaid taxes. "If a statute consists of separable parts and the offending portions can be eliminated and still leave provisions capable of being carried out, the valid portions must stand." City of Waukesha v. Town Bd., 198 Wis. 2d 592, 607, 543 N.W.2d 515 (Ct. App. 1995). Applying this rule of statutory construction here, we assume without deciding that the Companies have identified an unacceptable conflict that renders a portion of the last sentence of § 71.84(2)(a) invalid and let stand the valid portion of the statute imposing delinquent interest on underpayment interest.

¶ 19. Both parties present extensive legislative history and public policy arguments. We do not address these arguments because we have concluded that the language of the statute is plain, and we are bound by unambiguous statutory language unless such an interpretation leads to "absurd results," something the Companies do not assert. See South Milwaukee Sav. Bank v. Barczak, 229 Wis. 2d 521, 536-37, 600 N.W.2d 205 (Ct. App. 1999) ("Ordinarily a court 'must apply statutes as they are written, unless to do so would lead to an absurd result that did not reflect the legislature's intent.' " (quoting State v. Young, 180 Wis. 2d 700, 704, 511 N.W.2d 309 (Ct. App. 1993))). In addition, we note that the circuit court relied heavily on William Wrigley, Jr., Co. v. DOR, 176 Wis. 2d 795, 500 N.W.2d 667 (1993), in reaching its decision. However, Wrigley is inapplicable to the facts in this case because Wrigley did not construe the statutory language at issue here. Furthermore, to the extent Wrigley involved policy considerations and legislative history, it did so in the context of construing an ambiguous statute, something we do not confront.

Conclusion

¶ 20. We conclude that the plain language of Wis. Stat. § 71.84(2)(a) authorizes DOR to impose delinquent interest on underpayment interest. Therefore, the last sentence of § 71.84(2) (a) imposes delinquent interest on underpayment interest after March 15 even if the filed return has been modified by an audit. Accordingly, we reverse the order of the circuit court and affirm the decision of the commission.

By the Court. — Order reversed.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted. Both parties point to and ask us to interpret this version of the statutes. Neither suggests that any previous statutory change affects this appeal. We accept that apparent agreement and do not address whether any prior version of the statutes would dictate a different result.

       WISCONSIN Stat. § 71.84(2)(a) reads, in its entirety:
      Except as provided in s. 71.29(7), in the case of any underpayment of estimated tax under s. 71.29 or 71.48 there shall be added to the aggregate tax for the taxable year interest at the rate of 12% per year on the amount of the underpayment for the period of the underpayment. For corporations, except as provided in par. (b), "period of the underpayment" means the time period from the due date of the instalment until either the 15th day of the 3rd month beginning after the end of the taxable year or the date of payment, whichever is earlier. If 90% of the tax shown on the return is not paid by the 15th day of the 3rd month following the close of the taxable year, the difference between that amount and the estimated taxes paid, along with any interest due, shall accrue delinquent interest under s. 71.91(l)(a).

       WISCONSIN Stat. § 71.24(9)(a) reads: "Corporation franchise and income taxes not paid on or before the 15th day of the 3rd month following the close of the taxable year shall be deemed delinquent." For each year in the audit period, the Companies' tax year ended on December 31. Thus, for simplicity, we refer to March 15 as the date that all outstanding taxes were due in full.

       We acknowledge that, in a single sentence in its brief, DOR suggests that § 71.29's definition of return could be imported into all of Wis. Stat. ch. 71. However, we read the main thrust of DOR's argument to be that § 71.84(2)(a) incorporates § 71.29's definition of return, and our only concern here is with this specific subsection.