source: Caselaw Access Project

author: PATIENCE DRAKE ROGGENSACK, J. SHIRLEY S. ABRAHAMSON, C.J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Tyrone Booker, Defendant-Appellant.
    Supreme Court

      No. 2004AP1435-CR.

      Oral argument February 23, 2006.

      Decided June 29, 2006.

    2006 WI 79
    (Also reported in 717 N.W.2d 676.)

      AbRAHamson, C.J., concurs.
    For the plaintiff-respondent-petitioner the cause was argued by Sarah K. Larson, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.
    For the defendant-appellant there was a brief by Jeffrey W. Jensen and Jeffrey W Jensen Law Office, Milwaukee, and oral argument by Jeffrey W. Jensen.

   PATIENCE DRAKE ROGGENSACK, J.

¶ 1. The State of Wisconsin challenges the court of appeals decision reversing the conviction of Tyrone Booker (Booker) on two counts of exposing a child to harmful materials, contrary to Wis. Stat. § 948.11 (2003-04). The court of appeals concluded that the evidence was not sufficient to sustain the jury's verdict because the jury did not view the video alleged to be "harmful material," but instead heard only the children's and a detective's descriptions of what they saw. We conclude that the testimony that depicted the content of the video scenes shown to the children was sufficient to support the jury's verdict that Booker violated § 948.11 by exposing children to harmful material. Accordingly, we reverse the decision of the court of appeals in that regard.

I. BACKGROUND

¶ 2. The relevant facts are undisputed. On December 17, 2001, Shequila and her two friends, Sabrina and Deana, skipped school and went to visit Deana's boyfriend, Donta, at his home. At the time, Shequila was 14, and Sabrina and Deana were 12 and 13, respectively. When they arrived at Donta's apartment, Booker, Donta's mother's boyfriend, let them into the apartment. Deana asked Booker where Donta was and he told her Donta had left but would return soon. The girls sat down in the living room. Booker then told them that on a previous night, when Deana and Sabrina had visited the apartment, he had taped them on video without their knowing it. He said he would show them the tape. He brought a VCR and a video cassette labeled "Robert" from a bedroom to the living room.

¶ 3. The "Robert" video Booker showed the girls was a pornographic video of naked women and men engaging in various sexual acts. According to the girls' testimony at trial, Booker fast-forwarded through the video, stopping to show various scenes depicting naked women performing fellatio on naked men. One of the girls asked Booker to stop playing the video, and he did.

¶ 4. The girls later explained that parts of the video they saw showed scenes of women performing fellatio on men, a scene of a man dressed as a security guard receiving fellatio from several women dressed as cheerleaders and a scene of a man and a woman having penis-to-vagina intercourse.

¶ 5. Shortly after showing the girls these parts of the videotape, Booker got a phone call from Donta's brother's daycare. He told the girls they had to go with him to pick up Donta's brother because he could not leave them at home alone. The girls went on foot with Booker. After retrieving the little boy from daycare, on the way home, Booker picked up a tree branch and told the girls that he would whip the little boy with it unless one of the girls danced for him when they returned to the apartment. Amongst themselves, the girls protested that they did not want to be the one to do it, but after the little boy started crying, Shequila said she would dance. When they arrived back at the house, Booker put on music and told Shequila to dance. Shequila began to dance to the music, and soon after, Donta arrived.

¶ 6. The three girls went with Donta into his bedroom. Booker came to the bedroom door and said to send Shequila back out, because she was not finished dancing. Shequila obliged, and then returned to the bedroom. Booker again returned to the bedroom, this time threatening to call the girls' parents or the police to tell them that the girls were skipping school if the girls did not leave. He said he wanted one of the girls to go alone in a room with him, and if someone did it, the girls would not get in trouble. Shequila agreed to do it so that the girls would not get into trouble, but told him he could not touch her.

¶ 7. When Booker and Shequila were in the bedroom alone, he asked her if she "was ready" and reminded her that he was going to call "the people" to tell them that she had skipped school if she did not cooperate. He asked her if she was going to take off her clothes. Shequila obliged and stripped down to her bra. He told her to he down, and then he pushed her legs open and proceeded to assault her by probing her vaginal area with his thumb and mouth.

¶ 8. At trial, Shequila, Sabrina, and Deana all testified about the contents of the video that Booker showed them. The investigating detective, who had viewed the entire video, also described it in detail. The witnesses consistently described the video as consisting of multiple episodes, all of which focused on various sexual acts, as the following excerpts from Shequila's and the testifying detective's testimonies illustrate. Shequila testified as follows:

Q: What did you see?
Shequila: A woman with a man's penis in her mouth.
Q: The woman— Describe the scene you saw. You saw a penis in her mouth; is that right?
Shequila: Yes.
Q: Anybody wearing any type of clothing?
Shequila: No.
Q: In that scene nobody was wearing anything?
Shequila: They had took it off.
Q: So the woman is naked?
Shequila: Yes.
Q: And the man is naked?
Shequila: Yes.
Q: So you see that image on this TV screen; is that right?
Shequila: Yes.
Q: And describe what happens then?
Shequila: He stopped it, and he fast-forwarded it to another part.
Q: And then what happened?
Shequila: It was a part with the security guard on it.
Q: Pardon?
Shequila: It showed a part with a security guard.
Q: And what did you see happening with the security guard?
Shequila: A woman.
Q: And what did you see happening with the woman?
Shequila: She put his penis in her mouth.
Q: And the woman, what was she dressed like, or did she have any clothes on?
Shequila: Like cheerleaders.
Q: When you say "like cheerleaders," do you mean like a cheerleading outfit?
Shequila: Yes.
Q: When you say "the woman," did the person, the females depicted, did they look—
Shequila: Like in their twenties.
Q: What else happened with that tape; what else did you see?
Shequila: He stopped it and fast-forwarded it to another part.
Q: Describe what you saw then?
Shequila: It was another cheerleader. It was just one, and it was a dude in his bedroom.
Q: And what did you see happen in that scene?
Shequila: They took they [sic] clothes off, and she start— she had his penis in her mouth.
Q: What else did you see happen, if anything?
Shequila: He kept stopping it and fast-forwarding it to certain kinds of parts.
Q: Did you ever hear any dialogue in this film?
Shequila: Yes.
Q: Like what did you hear?
Shequila: Like moaning sounds and stuff.
Q: Did you ever hear people having a conversation?
Shequila: Yes.
Q: Like what were they saying?
Shequila: I don't remember.
Q: You don't remember?
Shequila: No.
Q: To the best of your memory, did it seem like a conversation about sex?
Shequila: Yes.
The detective then testified:
Q: Let me ask you this, how does the videotape begin?
Detective: The videotape right from the start depicts a male and a female engaged in sexual intercourse.
Q: What type of sexual intercourse?
Detective: Oral sex.
Q: Meaning what?
Detective: Penis to— Penis to mouth intercourse.
Q: Did you watch the entire tape?
Detective: Yes.
Q: How many different scenes— Let me rephrase that. How many different episodes are on the— that videotape?
Detective: There are fourteen separate episodes on this tape.
Q: And by episodes, what differentiates one episode from another?
Detective: Sexual interaction with different individuals. Each episode contained different individuals. Each episode is not repeated acts.
Q: With respect to the first episode, you watched it all?
Detective: Yes.
Q: What does it show?
Detective: It shows naked males and a naked female, and there's finger to vagina fondling. There's penis to mouth sexual intercourse.
There is penis to vagina intercourse. There is finger to anis [sic] fondling, and there is the male masturbating himself to the point of ejaculation on the female.
Q: That's the first episode?
Detective: Yes.
Q: You watched fourteen other episodes?
Detective: Yes.
Q: Are they all essentially the same except involving different people?
Detective: Yes.
Q: Describe what type of people are— what type, if any, clothing was on any of the people during any of these episodes.
Detective: Yes. The first episode was a male and a female. After that there were variations on a cheerleader theme. There's cheerleader auditions, and there was also a couple episodes involving a security guard, a female dressed as a cheerleader.
Q: And in the episodes, for example, involving the cheerleader, what would happen?
Detective: There was very little dialogue, but she would be asked to start dancing, remove her clothes. At which time the male would begin to interact sexually with her.
Q: How would each episode end?
Detective: With the male masturbating himself to the point of ejaculation on the female.

¶ 9. The video was entered into evidence but was never played for the jury. Booker never challenged the circuit court's decision to present evidence to the jury through the testimonies of the victim-witnesses and the detective who viewed the tape.

¶ 10. The jury convicted Booker of two counts of second-degree sexual assault and two counts of exposing a child to harmful materials. Booker appealed, asserting that there was insufficient evidence to convict him under Wis. Stat. § 948.11, of exposing a child to harmful materials. He alleged that because the statute required the jury to find that the video is patently offensive and has no artistic value when taken as a whole, a jury must actually view the video before it could find that the elements of the crime were proved.

¶ 11. The court of appeals agreed with Booker's reasoning, concluding that there was insufficient evidence to support the findings of guilt for exposing a child to harmful materials. State v. Booker, 2005 WI App 182, ¶ 34, 286 Wis. 2d 747, 704 N.W.2d 336. It acknowledged that the girls' and the detective's testimonies at trial made it clear that the tape depicted nudity and sexually explicit conduct. Id. However, notwithstanding that, the court of appeals concluded that what remained unanswered by the evidence presented was: (1) whether "the tape was patently offensive to prevailing standards in the adult community, taken as a whole, with respect to what is suitable for children"; and (2) "whether the tape lacked any literary, artistic, political, scientific or educational value" for children. Id. The decision suggested that because "no expert witness was called to assist the jury" in analyzing "the prevailing standards in Wisconsin" regarding appropriate viewing material for children or whether it "contained serious artistic, political, scientific or educational value for children," the jury was unable to analyze the tape according to the statute's required tests. Id. Consequently, it concluded that insufficient evidence had been presented to find Booker guilty of exposing children to harmful materials, and it reversed those convictions. Id. We review that portion of the court of appeals decision.

II. DISCUSSION

A. Standard of Review

¶ 12. Our review requires us to apply Wisconsin statutes and to review whether evidence presented to a jury was sufficient to support the jury's verdict. Application of a statute to facts is a question of law, subject to our independent review. Tahtinen v. MSI Ins. Co., 122 Wis. 2d 158, 166, 361 N.W.2d 673 (1985). We also review as a question of law whether the evidence presented to a jury is sufficient to sustain its verdict. State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990).

B. Wisconsin Stat. § 948.11

¶ 13. Booker was convicted of violating Wis. Stat. § 948.11(2) because of the video he showed to the girls. We begin our discussion by reviewing the definitions set out in § 948.11(1). There is a difference between § 948.11 and the "obscene material or performance" statute, Wis. Stat. § 944.21. While some of the language in the two statutes is similar, distinctions are central to our analysis in this case.

¶ 14. Both statutes require the fact-finder to determine (1) if the material is offensive as compared with community standards and (2) whether the material has literary, artistic, political, educational or scientific value. However, an important distinction is that Wis. Stat. § 948.11 specifies that these considerations relate to whether the material offends community standards regarding what is appropriate for children or whether the material has value for children.

¶ 15. We discussed the difference between Wis. Stat. § 948.11 and general obscenity statutes in State v. Thiel, 183 Wis. 2d 505, 515 N.W.2d 847 (1994). In Thiel, the defendant was convicted of exhibiting harmful material to a child and, among other arguments, contended that § 948.11 was overly broad in violation of the First Amendment. Id. at 515. The defendant argued that the statute had the "effect of criminally punishing those who exhibit, sell, or view material" protected by the First Amendment. Id. at 520. We rejected that argument for the following reasons: (1) the over-breadth doctrine is inapplicable when a limiting construction will maintain the legislation's constitutional integrity (citing Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)); (2) the statute is rationally related to the compelling state interest of protecting the well-being of children; and (3) the overbreadth doctrine is employed only as a last resort (citing New York v. Ferber, 458 U.S. 747, 769 (1982)). Thiel, 183 Wis. 2d at 521.

¶ 16. In the course of our analysis, wherein we concluded that Wis. Stat. § 948.11 was not overly broad, we discussed the statute's history, purpose, classification, relationship to general obscenity statutes and statutory counterparts in other jurisdictions. Id. at 523-36. We noted that many states had enacted laws banning or restricting the flow of obscene materials to minors and that laws prohibiting a person from exposing children to materials deemed "obscene to children" are "variable obscenity statutes." Id. at 523-24. We noted the legitimate purpose, as recognized by the United States Supreme Court, of variable obscenity statutes: "to protect the physical and psychological well-being of children... and to protect them from obscenity." Id. (citing Ferber, 458 U.S. at 756-57). As has been done in other states, the Wisconsin legislature created § 948.11 by appropriately adopting the obscenity test of Miller v. California, 413 U.S. 15 (1973), to create a variable obscenity statute. Thiel, 183 Wis. 2d at 535. We also established that § 948.11 has a dual purpose: "(1) to protect minors from material harmful to them as a class and (2) to protect the rights of parents to supervise the development of their children." Id. at 524 (citations omitted).

¶ 17. The import of this analysis for our purposes in the immediate case is the clear distinction Thiel makes between the statutory elements of harm and value of particular materials in regard to children in a variable obscenity statute when compared with elements of harm and value of material to which the general obscenity statutes are applied. We explained how to apply Wis. Stat. § 948.11, with regard to the three factors necessary to prove materials are "harmful to children." That test, as opposed to the test that is used in the general obscenity statute, analyzes a material's value or harmfulness in regard to the minor or minors exposed to it:

Distinct from those cases involving the commercial display of materials to a general, consumer audience, the language of sec. 948.11 focuses upon the affirmative conduct of an individual toward a specific minor or minors. Therefore, an individual violates the statute if he or she, aware of the nature of the material, knowingly offers or presents for inspection to a specific minor or minors material defined as harmful to children in sec. 948.11(l)(b).
In sec. 948.11(l)(b), Stats., the legislature adapted the Miller test of obscenity to produce a definition of what may be considered harmful to children. The first two prongs of the test — appeal to prurient interest and patent offensiveness — are analyzed by applying contemporary community standards. However, the third prong requires a separate analysis: does the material have literary, artistic, political, or scientific value? The appropriate standard at this point is "whether a reasonable person would find such value in the material, taken as a whole." Therefore, the appropriate standard to apply under this statute is whether material defined as harmful has any serious literary, artistic, political, scientific, or educational value, when taken as a whole. Such value is assessed by a reasonable minor of like age to the minor to whom the material is exhibited.

Id. at 535-36 (citations omitted; emphasis in original).

¶ 18. The question Booker presents is whether the evidence presented sufficiently fulfills the test set out in Thiel such that a reasonable jury could find beyond a reasonable doubt that the video was "harmful material" as defined in Wis. Stat. § 948.11. Under Thiel, a jury is required to consider contemporary community standards regarding what appeals to the prurient interests of children and whether material is patently offensive to the adult community's standards of what is appropriate for children. Id. at 535. The jury also had to consider whether the material had some other serious value for children, in this case for 12- to 14-year-old children. Id. at 535-36. With the statute's requirements and Thiel's, guiding principles for applying them in mind, we move on to Booker's challenge to the sufficiency of the evidence presented to the jury.

C. Sufficiency of the Evidence

1. Parties' arguments

¶ 19. Although it was entered into evidence, the video was not shown to the jury. Booker argues that this omission is dispositive because there is no satisfactory substitute for having the jury view the video when it is deciding whether it is "harmful material" that is "harmful to children." He contends that the jury could not determine whether the video is "patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for children" and whether the video "lacks serious literary, artistic, political, scientific or educational value for children, when taken as a whole" without actually viewing the parts of the video that allegedly constitute the "harmful material." He argues that descriptions of isolated images and sexual acts from the video are not sufficient to prove the three factors necessary to make the required finding under Wis. Stat. § 948.11.

¶ 20. In contrast, the State argues that the plain language of the statute does not require that the State prove those factors with direct evidence, i.e., by actually showing the video to the jury. It also contends that, as this court discussed in Thiel, see id. at 535, Wis. Stat. § 948.11 focuses on the nature of the materials, which need not be ascertained through direct viewing by the fact-finder, but may also be ascertained from others' descriptions of the materials.

¶ 21. The State also asserts that the "harmful material" element of Wis. Stat. § 948.11, i.e., that the material has no literary, artistic, political, scientific or educational value for children and that the material is "patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for children," can be met by the evidence in this case. It contends that the jury is the appropriate evaluator of whether that element was proved by the evidence presented. Therefore, no expert analysis as to community standards was necessary to prove the material "patently offensive." Finally, the State emphasizes that Booker fast-forwarded through portions of the video to show the girls the scenes depicting fellatio and other sexual acts; therefore, the material to which the girls were exposed was selected specifically for its obscene and inappropriate content. Accordingly, although the testifying detective offered a description of the entire video, the only evidence necessary to sustain a guilty verdict is testimony about the portions of the video actually shown to the girls.

2. Application of the law

¶ 22. Evidence is insufficient to support a conviction only if the evidence, when viewed most favorably to the State, "is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." Poellinger, 153 Wis. 2d at 501. As the court of appeals recently noted in State v. Searcy, 2006 WI App 8, 288 Wis. 2d 804, 709 N.W.2d 497, the defendant bears a heavy burden in attempting to convince a reviewing court to set aside a jury's verdict on insufficiency of the evidence grounds. Id., ¶ 22 (citing State v. Allbaugh, 148 Wis. 2d 807, 808-09, 436 N.W.2d 898 (Ct. App. 1989)).

¶ 23. In Booker's trial, the girls' and the detective's testimonies regarding the content of the tape were admitted to prove the "harmful material" element of Wis. Stat. § 948.11. All of the’ witnesses explained that the video's dominant focus was on nudity and explicit sexual acts and suggested that the video had no additional plot line, meaningful dialogue or other notable qualities or characteristics. The girls characterized it as a "porno" video. Their descriptions of what they saw provided the jury with explicit details of the contents of the video that the jury could use to assess the film's appeal to children's prurient interests, its offensiveness to community standards about what is appropriate for children and its lack of other value for 12- to 14-year-olds. The jury was able to make its own decision as to the credibility of the witnesses. Poellinger, 153 Wis. 2d at 506.

¶ 24. The United States Supreme Court, federal courts, and Wisconsin courts are uniform in concluding that questions of whether material appeals to prurient interests, satisfies community standards for potentially obscene material or has literary, artistic, political, scientific or educational value may be appropriately decided by a jury. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56 (1973) (holding in an obscenity case, it was not "error to fail to require 'expert' affirmative evidence that the materials were obscene"); see also United States v. Wild, 422 F.2d 34 (2d Cir. 1969) (holding that issues of prurient appeal and offensiveness to contemporary community standards were appropriately decided by a jury, notwithstanding the lack of expert testimony); State v. Tee & Bee, Inc., 229 Wis. 2d 446, 452, 600 N.W.2d 230 (Ct. App. 1999) (citing Smith v. United States, 431 U.S. 291, 305 (1977)) (holding in an obscenity case that "contemporary community standards [can] be applied by juries in accordance with their own understanding of the tolerance of the average person in their community".

¶ 25. When we view the evidence in this case most favorably to the State, we conclude that a reasonable "trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt," based on the testimony presented. First, the jury could conclude that the video excerpts, as described, predominantly appeal to the prurient interests of children. "Prurient" is defined as "arousing inordinate or unusual sexual desire." Black's Law Dictionary 1263 (8th ed. 2004). The portions of the video that Booker showed to the girls were consistently described as scene upon scene of sexual acts, with all scenes ending with the male masturbating to the point of ejaculation on the female.

¶ 26. Second, the jury could conclude that the video is patently offensive to prevailing standards in the adult community with regard to what is suitable for children. Motion pictures that depict explicit sexual material harmful to minors may not be shown at outdoor theaters if the screen is visible from a public street, sidewalk, thoroughfare or other public place or from private property where it can be observed by minors. Wis. Stat. § 134.46(2). Videos with the type of content described by the witnesses are not available for rental to minor children in Wisconsin. Videos showing explicit sexual acts are commonly rated and restricted so that minor children will not be exposed to them. A jury could make a reasonable determination based on the testimony presented at trial that the video Booker showed the girls is considered by Wisconsin adults as unsuitable for children.

¶ 27. Third, the jury could conclude that the video excerpts lacked serious literary, artistic, political, scientific or educational value for 12- to 14-year-olds because nothing was shown except episodes with men and women engaging in sexual acts. There was no evidence that the video had merit for children of these ages, for any reason. And, for the same reasons that the other parts of the "harmful material" element can be met by the evidence presented, a reasonable trier of fact could conclude from the testimony that the video was absolutely void of serious literary, artistic, political, scientific or educational value for children.

¶ 28. The parties also discuss State v. Trochinski, 2002 WI 56, 253 Wis. 2d 38, 644 N.W.2d 891, but they disagree as to its relevance to the issues presented in this case. Trochinski centered on a defendant's no contest plea to one count of exposing a minor to harmful materials in violation of Wis. Stat. § 948.11(2). Id., ¶ 1. "After sentencing, Trochinski filed a postcon-viction motion seeking to withdraw his plea." Id. He alleged that when he pled, he did not understand the "harmful to children" element of the offense. Id. He said that his trial counsel did not advise him that the State would have to prove that the photographs he gave to the 17-year-old girl were "patently offensive to prevailing community standards regarding what is suitable" for a child of like age and that the material "lacked serious value when taken as a whole," for a child of like age. Id., ¶ 18. He argued that "because he did not understand how 'harmful to children' would be judged by the jury with respect [to the girl to whom he gave the pictures], he did not understand the meaning of that element when he entered his plea." Id.

¶ 29. We concluded that Trochinski had not established prima facie proof that his plea was involuntary or unknowing. Id., ¶ 23. The record revealed that Trochin-ski gave a minor nude photos of himself, an alleged letter from Playgirl magazine, and a letter to the minor asking her to review his nude photos. We concluded that the circuit court did not err in concluding this constituted a sufficient factual basis to support Trochinski's plea. Id., ¶ 32.

¶ 30. We conclude that the procedural posture of Trochinski causes it to have little relevance. We upheld the defendant's plea in Trochinski. Trochinski's plea waived the right to have a jury determine whether showing the pictures to a child violated Wis. Stat. § 948.11. Therefore, our discussion in Trochinski focused on his knowing and voluntary waiver. Furthermore, although both cases involve the application of § 948.11, Trochinski involved a plea, a child of a different age and a few still-life photos, rather than a jury verdict, 12- to 14-year-old children and a video showing actual fellatio, sexual intercourse, masturbation to the point of ejaculation, and sexual fondling of various types.

¶ 31. Accordingly, we conclude that the evidence submitted to the jury was such that a reasonable jury could have found beyond a reasonable doubt that Booker violated Wis. Stat. § 948.11.

III. CONCLUSION

¶ 32. We conclude that the testimony that depicted the content of the video scenes shown to the children was sufficient to support the jury's verdict that Booker violated Wis. Stat. § 948.11 by exposing children to harmful material. Accordingly, we reverse the decision of the court of appeals in that regard.

By the Court. — The decision of the court of appeals is reversed.

SHIRLEY S. ABRAHAMSON, C.J.

¶ 33. (concurring). I agree that the conviction should be affirmed. I write separately because two subjects raised by the majority opinion require further discussion. First, I discuss State v. Trochinski, 2002 WI 56, 253 Wis. 2d 38, 644 N.W.2d 891, and its relevance to the instant case. Second, I discuss the original writing rule.

HH

¶ 34. The parties discuss the Trochinski case at length and debate its applicability to the case at hand.

¶ 35. In Trochinski, this court addressed the defendant's motion to withdraw a no contest plea. A no contest plea is treated for criminal law purposes the same as a guilty plea.

¶ 36. When an accused pleads guilty and admits guilt, the circuit court must determine whether a sufficient factual basis exists for the guilty plea. At a hearing on a motion to withdraw a guilty plea after sentencing, an accused has the burden of showing "manifest injustice" by clear and convincing evidence. One of the grounds for finding manifest injustice is that no factual basis for the plea exists. In other words, an accused has the burden to show by clear and convincing evidence that no factual basis exists to support the conclusion that the conduct an accused admits actually falls within the charge. White v. State, 85 Wis. 2d 485, 491, 271 N.W.2d 97 (1978).

¶ 37. It is within the discretion of the circuit court to determine whether an accused should be permitted to withdraw a guilty plea. Therefore, an appellate court will reverse a circuit court's denial of an accused's request to withdraw a guilty plea only if the circuit court erroneously exercised its discretion. Upon review of a circuit court's denial of a motion to withdraw a guilty plea, an appellate court is required to determine whether the circuit court's order was based on the facts and on a correct interpretation and application of the law.

¶ 38. Trochinski was charged with showing a set of ten nude photographs of himself to a girl who was 17 years and three months old. In addition, the defendant gave the 17-year-old a questionable copy of a letter from Playgirl indicating that his nude photos would be published, and a letter to the 17-year-old inviting her to review the photos. The information charged Trochinski with the same offense with a 15-year-old girl. Pursuant to a plea agreement, (1) Trochinski pleaded no contest to the one charge relating to the 17-year-old; (2) the State dismissed the count relating to the 15-year-old; and (3) the count relating to the 15-year-old was to be read into the record for purposes of sentencing. At the plea hearing, the circuit court concluded, without looking at the photographs, that there was sufficient evidence to support the plea of no contest to the charge relating to the 17-year-old.

¶ 39. This court concluded in Trochinski (1) that the circuit court could properly impliedly conclude without seeing the photos that the facts were sufficient to support the plea; and (2) that after viewing the nude photos this court could conclude as a matter of law that the facts were sufficient to support the plea. Thus, this court concluded that the circuit court had not erred.

¶ 40. The instant case involves a guilty verdict. The parts of the videotape described in the testimony were of a more offensive nature than the photos in Trochinski and the minors were younger than the 17-year-old who was the basis of the charge to which Trochinski pleaded no contest. In the instant case the minors were 12, 13, and 14 years old.

¶ 41. An appellate, court reviews the jury verdict to determine whether the evidence was sufficient to support the verdict. When an appellate court reviews the sufficiency of the evidence in support of a jury guilty verdict, "the test is not whether this court is convinced of the guilt of the defendant beyond a reasonable doubt but whether this court can conclude the trier of facts could, acting reasonably, be convinced beyond reasonable doubt of such guilt from the evidence it had a right to believe and accept as true.... [The] evidence, when considered most favorably to the state, must be so insufficient in probative value that it can be said that no trier of facts, acting reasonably, could be convinced of the guilt of the defendant beyond reasonable doubt."

¶ 42. The State argues that the video in the present case was at least as offensive as the photographs at issue in Trochinski and is sufficient to sustain a conviction. I agree with the State.

¶ 43. As I see it, if the defendant in Trochinski could not prove by clear and convincing evidence that a description of the nude photos was insufficient to satisfy the elements of the variable obscenity statute in the context of a guilty plea, the defendant in the instant case could not show that the descriptions of the video, viewed most favorably to the State, are so lacking in probative value that no reasonable trier of fact could be convinced beyond reasonable doubt that the elements of the variable obscenity statute were met.

¶ 44. Even without the Trochinski decision, I conclude that the evidence in the instant case was sufficient to support the guilty verdict reached by the jury.

II

¶ 45. I also conclude that the original writing rule (Wis. Stat. ch. 910) may apply to the videotape in the instant case, though the circuit court might have reasonably concluded that there is a valid exception to the rule had it considered the issue.

¶ 46. In the instant case, the defendant did not object to the testimony regarding the videotape based on the best evidence rule. The original writing rule was not raised on appeal, but was raised by this court.

¶ 47. I write to remind counsel and the bench that Wisconsin does indeed have an original writing rule, even though the rule has not appeared in any recent appellate cases. For a discussion and explanation of chapter 910, see the Judicial Council Committee's and Federal Advisory Committee's Notes printed at 59 Wis. 2d R350-366.

¶ 48. Under Wis. Stat. § 910.02, "[t]o prove the content of a writing, recording or photograph, the original writing, recording or photograph is required, except as otherwise provided in chs. 901 to 911, s. 137.21, or by other statute." A videotape is a photograph for the purposes of chapter 910.

¶ 49. The original writing rule seems applicable in the instant case because the State sought to prove the content of the videotape. That is, the State was required to prove the content of the videotape and that the content is harmful to minors as defined in Wis. Stat. § 948.11(l)(b). I need not, and do not, resolve the question of whether the voluminous records exception or any other exception to the original writing rule would have applied in the instant case. See Wis. Stat. § 910.06 (content of voluminous writings, recording, or photographs may be presented in summary form).

¶ 50. In sum, I write separately to expand upon the majority opinion's discussion of the Trochinski case and to write about the original writing rule, a rule that may have been forgotten as we mouth the generally accepted proposition that Wisconsin does not have a "best evidence rule."

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

       Wisconsin Stat. § 910.02 was mentioned in oral argument, although it is not referenced in either party's briefs. It provides:
      To prove the content of a writing, recording or photograph, the original writing, recording or photograph is required, except as otherwise provided in chs. 901 to 911, s. 137.21, or by other statute.
      We were provided with no argument or citation to authority in regard to its application. Therefore, we do not address § 910.02 further.

       Booker's convictions of second-degree sexual assault are not before us on this review.

       Wisconsin Stat. § 948.11(2)(a) provides in relevant part:

        Whoever, with knowledge of the character and content of the material, sells, rents, exhibits, plays, distributes, or loans to a child any harmful material, with or without monetary consideration, is guilty of a Class I felony if any of the following applies:
      1. The person knows or reasonably should know that the child has not attained the age of 18 years.
      2. The person has face-to-face contact with the child before or during the sale, rental, exhibit, playing, distribution, or loan.

       Wisconsin Stat. § 948.11 states, in pertinent part:
      Exposing a child to harmful material or harmful descriptions or narrations. (1) DEFINITIONS. In this section:
      (ar) "Harmful material" means:
      (1) Any picture, photograph, drawing, sculpture, motion picture film or similar visual representation or image of a person or portion of the human body that depicts nudity, sexually explicit conduct, sadomasochistic abuse, physical torture or brutality and that is harmful to children; or
      (b) "Harmful to children" means that quality of any description, narrative account or representation, in whatever form, of nudity, sexually explicit conduct, sexual excitement, sadomasochistic abuse, physical torture or brutality, when it:
      1. Predominantly appeals to the prurient, shameful or morbid interest of children;
      2. Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for children; and
      3.Lacks serious literary, artistic, political, scientific or educational value for children, when taken as a whole.

       Wisconsin Stat. § 944.21 states, in pertinent part:

        Obscene material or performance. (1) The legislature intends that the authority to prosecute violations of this section shall be used primarily to combat the obscenity industry and shall never be used for harassment or censorship purposes against materials or performances having serious artistic, literary, political, educational or scientific value. The legislature further intends that the enforcement of this section shall be consistent with the first amendment to the U.S. constitution, article I, section 3, of the Wisconsin constitution and the compelling state interest in protecting the free flow of ideas.
      (c) "Obscene material" means a writing, picture, film, or other recording that:
      1. The average person, applying contemporary community standards, would find appeals to the prurient interest if taken as a whole;
      2. Under contemporary community standards, describes or shows sexual conduct in a patently offensive way; and
      3. • Lacks serious literary, artistic, political, educational or scientific value, if taken as a whole.

       The language of the statute reflects the state's compelling interest to protect the well-being of its youth by examining the nature of the materials. Once the nature of the materials is deemed to be harmful, by application of the Miller test, an individual may not — in a pubic or private forum— sell, loan, exhibit, or transfer harmful materials to minors. ... Therefore, an individual violates the statute if he or she, aware of the nature of the material, knowingly offers or presents for inspection to a specific minor or minors material defined as harmful to children in sec. 948.11(l)(b).

        State v. Thiel, 183 Wis. 2d 505, 534-35, 515 N.W.2d 847 (1994).

        See Kids in Mind website, http://www.kids-in-mind.com, movie and video ratings in regard to suitability for children with content rated for graphic violence, sex/nudity, and profanity. Id. (last visited June 22, 2006).

       Trochinski also gave similar photographs to a 15-year-old girl. That charge was dropped as part of the plea agreement. State v. Trochinski, 2002 WI 56, ¶ 7 n.3, 253 Wis. 2d 38, 644 N.W.2d 891.

       This opinion does not address whether the video would contravene the adult obscenity statute, Wis. Stat. § 944.21.

        State v. Thomas, 2000 WI 13, ¶ 14, 232 Wis. 2d 714, 605 N.W.2d 836. The purpose of this rule is to make sure that when a defendant is pleading guilty, he understands the charges against him and is not pleading guilty on facts insufficient to support the charges. White v. State, 85 Wis. 2d 485, 491, 271 N.W.2d 97 (1978) (quoting McCarthy v. United States, 394 U.S. 459, 467 (1969)).

        See also Wis. Stat. § 971.08(1) (2003-04), which states:

        (1) Before the court accepts a plea of guilty or no contest, it shall do all of the following:
      (b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged.

        White, 85 Wis. 2d at 491.

        Id.; Hatcher v. State, 83 Wis. 2d 559, 564, 266 N.W.2d 320 (1978).

        State v. Trochinski, 2002 WI 56, ¶ 5, 253 Wis. 2d 38, 644 N.W.2d 891.

         Id,., ¶¶ 8-9.

        Id., ¶ 50 (Abrahamson, C.J., dissenting).

       I dissented in Trochinski, concluding that the circuit court committed an error of law that the facts were sufficient to support the plea. Trochinski, 253 Wis. 2d 38, ¶¶ 51-58 (Abrahamson, C.J., dissenting) ("The complaint and Statement of Probable Cause simply state that the defendant showed photographs of himself nude to a young woman who was then seventeen years and three months of age. That's it. Not all nude photos shown to a person over the age of seventeen but below the' age of eighteen violate the statute."). On reviewing the entire record, I further concluded that the facts were not sufficient,to support the plea. Id., ¶¶ 58-63 (Abrahamson, C.J., dissenting). I still disagree with the result in Trochinski.

        State v. Richardson, 44 Wis. 2d 75, 77, 170 N.W.2d 775 (1969). See also State v. Poellinger, 153 Wis. 2d 493, 507-08, 451 N.W.2d 752 (1990).

       The court of appeals concluded that without the whole tape, its literary, artistic, and educational value could not be ascertained. "Had the statute required only a finding that the tape contained offensive sexually explicit conduct, then perhaps the evidence would have been sufficient." State v. Booker, 2005 WI App 182, ¶ 34, 286 Wis. 2d 747, 704 N.W.2d 336. I do not address the interpretation and application of the statute when only explicitly sexual material (not the whole tape) is shown to the victim.

        See majority op., ¶ 9 n.2.

       7 Daniel D. Blinka, Wisconsin Practice: Wisconsin Evidence § 1001.1 (2006), discusses the "myth of the best evidence rule" and points out that neither Wisconsin nor federal law establishes a general hierarchy of evidence. Professor Blinka explains, however, that various provisions in chapter 910 of the statutes establish a rule of preference with regard to original writings, recordings, and photographs. He predicts that technological advances may create difficulties with this rule in the near future.
      For further discussion of the original document rule, see 2 John W Strong, McCormick on Evidence ch. 23 (5th ed. 1999).

       Wis. Stat. § 910.01(2) (" 'Photographs' include still photographs, X-ray films, and motion pictures."). A videotape is a form of motion picture. See 7 Blinka, supra note 11, § 1001.3. A videotape is also, presumably, a recording.


author: SHIRLEY S. ABRAHAMSON, C.J.

text:
    Alison M. Welin, Plaintiff-Appellant-Petitioner, v. American Family Mutual Insurance Company, Defendant-Respondent, Elizabeth A. Pyrzynski, Honeywell International and Acuity, Defendants, Secura Insurance, Defendant-Third-Party Plaintiff, v. Joshua J. Opichka, Wausau Benefits and Hastings Mutual Insurance Company, Third-Party Defendants.
    Supreme Court

      No. 2004AP1513.

      Oral argument January 10, 2006.

      Decided June 30, 2006.

    2006 WI 81
    (Also reported in 717 N.W.2d 690.)

      For the plaintiff-appellant-petitioner there were briefs by Stephanie L. Finn, Webster A. Hart, and Herrick & Hart, S.C., Eau Claire, and oral argument by Dennis M. Sullivan.

    For the defendant-respondent there was a brief by John A. Kramer, Michael J. Roman, and Zalewski, Klin-ner & Kramer, LLP, Wausau, and oral argument by John A. Kramer.

    An amicus curiae brief was filed by Matthew A. Biegert and Doar, Drill & Skow, S.C., New Richmond, on behalf of the Wisconsin Academy of Trial Lawyers.
   SHIRLEY S. ABRAHAMSON, C.J.

¶ 1. This is a review of an unpublished decision of the court of appeals affirming a summary judgment by the circuit court for Chippewa County, Benjamin D. Proctor, Judge. The summary judgment was in favor of American Family Mutual Insurance Company. We reverse the decision of the court of appeals and remand the cause to the circuit court for further proceedings consistent with this opinion.

¶ 2. This case arises from an automobile accident. The liability insurance policy covering Elizabeth A. Pyrzynski, the tortfeasor, provided for a $300,000 policy limit; American Family's underinsured motorist (UIM) coverage of Alison M. Welin, the plaintiff, had limits of $300,000 per person and $300,000 per occurrence. The plaintiffs UIM coverage defined an underinsured motor vehicle as a motor vehicle that is insured with bodily injury liability limits less than the limits of liability of the UIM coverage.

¶ 3. The tortfeasor has insufficient liability coverage to pay for the damages to two people injured as a result of her negligence: the plaintiff, the driver of the other car involved in the accident; and Joshua Opichka, the tortfeasor's passenger at the time of the accident.

¶ 4. The plaintiff received $250,000 of the tortfeasor's $300,000 motor vehicle policy limit; the other person injured in the occurrence (not covered by the same UIM policy as the plaintiff) received $50,000 from the tortfeasor's insurer. The plaintiffs damages exceeded $250,000, and she is seeking $50,000 from American Family, the difference between what she was paid by the tortfeasor's insurer and the limit of liability under her UIM coverage.

¶ 5. The issue presented is whether a UIM insurance policy's definition of an underinsured motor vehicle as a motor vehicle that is insured with bodily injury liability limits less than the limits of liability of the UIM policy without regard for the amount the injured person actually receives from the tortfeasor's insurer is a reducing clause prohibited by Wis. Stat. § 632.32(4m) and (5)(i).

¶ 6. The circuit court dismissed the plaintiffs claim for her UIM coverage against American Family on the ground that the tortfeasor's vehicle did not meet the definition of an underinsured motor vehicle in the plaintiffs UIM policy; the limits in the plaintiffs UIM policy were equal to the limits in the tortfeasor's liability policy (both $300,000 per person). The circuit court therefore granted summary judgment to American Family, concluding that the plaintiffs UIM policy did not cover the plaintiff under the facts of the instant case. The court of appeals affirmed the judgment of the circuit court.

¶ 7. We conclude that prior cases upholding definitions of an underinsured motor vehicle similar to the one in the instant case remain good law for the issues they reached, but they do not resolve the issue presented by the instant case. The prior cases, unlike the instant case, involved only one injured person who was paid the full amount of the tortfeasor's liability policy.

¶ 8. We further conclude that when a tortfeasor injures more than one person in a single occurrence and the injured persons are not insured under the same UIM policy, a definition of an underinsured motor vehicle that compares the injured person's UIM limits to the limits of a tortfeasor's liability policy without regard to the amount the injured person actually receives from the tortfeasor's insurer is invalid under Wis. Stat. § 632.32(4m) and (5)(i). The definition contravenes the purpose of UIM coverage under Wis. Stat. § 632.32(4m) and functions as an impermissible reducing clause when a tortfeasor injures more than one person in a single occurrence and the injured persons are not insured under the same UIM policy.

1 — 1

¶ 9. The following material facts about the automobile accident and the relevant insurance policies are undisputed.

¶ 10. The tortfeasor fell asleep while driving. Her car collided with a car driven by the plaintiff, who suffered serious injuries. Joshua Opichka, a passenger in the tortfeasor's car, was also seriously injured in the accident.

¶ 11. The tortfeasor is totally responsible for all damages. Her liability insurance policy issued by Se-cura Insurance provides for bodily injury liability limits of $300,000 per person and $300,000 per accident.

¶ 12. The plaintiff is insured under her father's insurance policy issued by American Family. The policy includes an endorsement providing for UIM coverage with limits of $300,000 per person and $300,000 per occurrence. The UIM endorsement defines an underin-sured motor vehicle in relevant part as follows:

Underinsured motor vehicle means a motor vehicle which is insured by a liability bond or policy at the time of the accident which provides bodily injury liability limits less than the limits of liability of this Underin-sured Motorists coverage.

¶ 13. The plaintiff filed suit against the tortfeasor and the tortfeasor's insurance company. She also filed suit against American Family, her UIM insurer, for the difference between any amount she was paid by the tortfeasor's insurer and the $300,000 provided by her UIM policy with American Family.

¶ 14. The parties stipulated that the plaintiffs damages were greater than $250,000 and that the tortfeasor's $300,000 limits of liability would be shared between the two injured persons; the plaintiff received $250,000, and Opichka, $50,000.

¶ 15. Following the stipulation, American Family moved for summary judgment on the ground that its UIM endorsement was not triggered because the tortfeasor's vehicle did not meet the definition of an underinsured motor vehicle under the plaintiffs policy. The plaintiff contends that the definition of underin-sured motor vehicle in American Family's UIM endorsement, under the circumstances of the instant case, is an impermissible reducing clause.

II

¶ 16. This case requires us to interpret and apply prior case law, Wis. Stat. § 632.32(4m) and (5)(i), and the insurance policy to undisputed facts. The interpretation and application of case law and statutes to undisputed facts are ordinarily questions of law that this court decides independently of the circuit court and court of appeals but benefiting from their analyses. An interpretation of an insurance policy is ordinarily a question of law. Finally, because this case was decided on summary judgment and the material facts are not in dispute, we follow the standard of review set forth in Wis. Stat. § 802.08; we determine whether the circuit court correctly decided an issue of law in its decision on the summary judgment motion.

HH hH hH

¶ 17. We now consider whether American Family's definition of an underinsured motor vehicle is, under the facts of the instant case, an impermissible reducing clause. We begin by summarizing the parties' arguments.

¶ 18. The plaintiff asserts that because the definition of an underinsured motor vehicle denies her all UIM coverage regardless of the sum paid her by the tortfeasor's liability policy, the policy definition is in effect a reducing clause prohibited by Wis. Stat. § 632.32(4m)(d) and (5)(i). The plaintiff urges that the amount of UIM coverage available to her should be the difference between what she has received from the tortfeasor's insurer and the $300,000 limit of liability in American Family's UIM endorsement.

¶ 19. American Family, on the other hand, argues that the definition of an underinsured motor vehicle is just that, a definition serving as a threshold inquiry as to whether the UIM endorsement applies. American Family asserts that its definition of an underinsured motor vehicle has been upheld in prior cases and that the plaintiffs actual recovery from the tortfeasor's insurer is irrelevant. If the tortfeasor's vehicle does not meet the definition of an underinsured motor vehicle in American Family's UIM endorsement, American Family reasons, UIM coverage does not apply and there can be no impermissible reducing clause.

¶ 20. We agree with the plaintiff. We first set forth an overview of UIM coverage. Next we examine our prior UIM cases upon which the parties rely. We then turn to Wis. Stat. § 632.32(4m), governing UIM coverage, and § 632.32(5)(i), governing reducing clauses in UIM policies. We conclude that American Family's definition of an underinsured motor vehicle is an invalid reducing clause under the facts of the instant case.

A

¶ 21. To put the present case in perspective we must examine the theory of UIM coverage adopted in Wisconsin and the validity of American Family's definition of an underinsured motor vehicle.

¶ 22. The statutes do not require or define UIM coverage. Section 632.32(4m)(d) provides that if an insured accepts UIM coverage, the insurer shall include coverage in limits of at least $50,000 per person and $100,000 per accident. In other words, once the insured buys a UIM policy the statute sets the minimum amount of coverage. Wisconsin Stat. § 632.32(4m)(d) provides in relevant part as follows:

(d) If an insured who is notified under par. (a)l. accepts underinsured motorist coverage, the insurer shall include the coverage under the policy just delivered to the insured in limits of at least $50,000 per person and $100,000 per accident. For any insured who accepts the coverage after notification under par. (a)2., the insurer shall include the coverage under the renewed policy in limits of at least $50,000 per person and $100,000 per accident.

¶ 23. The UIM endorsement under which the plaintiff was insured had limits of $300,000 per person and $300,000 per accident.

¶ 24. This court has identified two approaches to UIM coverage. Under one view, UIM coverage compensates an insured accident victim when the insured's damages exceed the recovery from the at-fault driver. The UIM coverage is for a set dollar amount above and beyond the liability limits of the at-fault driver. Under this view, UIM coverage operates as a separate fund, over and above the amount paid by the tortfeasor's insurance, available up to the limit of the UIM policy for the payment of the insured's uncompensated damages.

¶ 25. According to this view, UIM coverage compares the dollar value of the damages suffered by the holder of the UIM policy to the amount the injured person is reimbursed by the tortfeasor. If the amount of the tortfeasor's reimbursement to the injured person is less than the injured person's damages, the UIM policy makes up the difference, up to the limit of that UIM policy.

¶ 26. Under a second view of UIM coverage, UIM coverage is designed to put the insured in the same position he or she would have occupied had the tortfeasor's liability limits been the same as the UIM limits purchased by the insured. Under this "limits-to-limits" view, an insured purchases a predetermined, fixed level of insurance coverage made up of payments from both the at-fault driver's liability policy and the injured person's UIM policy.

¶ 27. The cases have viewed Wis. Stat. § 632.32(4m) as allowing insurance companies to write policies adopting either the first or the second view of UIM coverage. Accordingly, the definition of an under-insured motor vehicle contained in the American Family UIM policy in the present case, adopting the second view of UIM coverage, has been upheld and applied in a number of cases.

¶ 28. The plaintiff does not seek to disturb the limits-to-limits definition of an underinsured motor vehicle when the sole injured party recovers the entire limit of liability of the at-fault driver. The issue the plaintiff presents is whether the limits-to-limits definition of an underinsured motor vehicle functions as an impermissible reducing clause when applied to multiple claimants covered under different UIM policies.

B

¶ 29. American Family contends that our prior cases control the outcome of the present case. These cases uphold the definition of an underinsured motor vehicle used in the American Family UIM policy in the present case.

¶ 30. In Taylor v. Greatway Insurance Co. (which relies on Smith v. Atlantic Mutual Insurance Co.), the policy (like the policy in the present case) defined an underinsured motor vehicle as a motor vehicle with liability limits less than the limits of liability provided for in the plaintiffs underinsured motorist policy. The Taylor court held that the policy definition was unambiguous and that the injured person was not entitled to underinsured motorist coverage because the tortfeasor's vehicle was not an underin sured vehicle as defined by the injured person's UIM policy; the limits of the underinsured motorist policy were identical to (not less than) the liability limits in the tortfeasor's policy.

¶ 31. In the Taylor and Smith cases only one injured person was involved. The injured persons in Taylor and in Smith each received the full amount of the at-fault driver's insurance limit of liability. A limits-to-limits definition of an underinsured motor vehicle did not have the effect of reducing the coverage provided by the UIM policy in those cases.

¶ 32. Thus, in Taylor and Smith, the sole injured person was reimbursed by the amount of the predetermined, fixed level of insurance provided in the UIM policy by payment from the at-fault driver's full limits of liability.

¶ 33. The plaintiffs predetermined, fixed level of insurance coverage in the present case under the UIM policy was $300,000, payable by either the tortfeasor's insurer, the plaintiffs UIM policy, or both. By virtue of the parties' stipulation in the present case, the plaintiff received only $250,000 of the tortfeasor's liability limit. Were we to accept American Family's argument, the plaintiff would not recover a predetermined, fixed level of insurance coverage.

¶ 34. The tortfeasor's vehicle in the present case became underinsured because the tortfeasor's insurer made payments to injured persons other than the plaintiff. The tortfeasor's insurance company's payment to the plaintiff was less than the plaintiffs UIM limits. To put the plaintiff in the same position she would have been in had the tortfeasor's liability limits as to her been the same as the UIM limits she purchased, she must receive $50,000 from American Family to bring her recovery to $300,000.

¶ 35. Thus, the issue presented in the instant case is different from the one presented in Taylor and Smith. Because Taylor and Smith are distinguishable from the present case, those cases do not resolve the present dispute. Taylor is instructive, however, about the nature of UIM policies under the statute. A UIM policy must provide "a fixed level of UIM recovery that will be arrived at by combining payments made from all sources."

¶ 36. American Family also calls our attention to State Farm Mutual Automobile Insurance Co. v. Langridge, 2004 WI 113, 275 Wis. 2d 35, 683 N.W.2d 75, in which the court commented on the multiple-claimant situation in a way that American Family construes as favorable to it. In Langridge, the UIM policy provided "coverage for an insured when a tortfeasor becomes functionally underinsured by virtue of payments to others, in that the tortfeasor's remaining coverage to compensate the insured is less than the insured's own UIM limits." Quoting Arnold E Anderson's text, Wisconsin Insurance Law at 4.3(E)(4th ed. 1998), the Langridge court commented that in a UIM policy using American Family's definition of an underinsured motor vehicle, the " 'payment to other injured parties that reduces the coverage available to an insured below the UIM limits will usually not trigger UIM coverage.' "

¶ 37. The same sentence appears in the 2004 version of the Anderson text, and the operative word in the sentence is obviously "usually." Anderson cites no Wisconsin case resolving the issue of payment to multiple claimants. Anderson notes that there is a division of authority on whether payment to other injured parties that reduces coverage available to an insured below the insured's UIM limits will trigger UIM coverage. When a policy or state statute defines an underin-sured motor vehicle as the American Family policy does, cases seem to go both ways.

¶ 38. Finally, American Family (and the decision of the court of appeals in the present case) relies on Praefke v. Sentry Insurance Co., 2005 WI App 50, 279 Wis. 2d 325, 694 N.W.2d 442, a recent court of appeals case with facts similar to the present case. In Praefke, Roger Praefke was driving his own vehicle when he was seriously injured in an accident with a vehicle driven by Thomas Grandstaff, the sole negligent person. A passenger in Grandstaffs vehicle was killed.

¶ 39. Grandstaffs vehicle had a $100,000 liability policy; $75,000 was paid to Praefke and $25,000 to the estate of Grandstaffs deceased passenger. Praefke's UIM policy with Sentry Insurance provided $100,000 UIM limits of liability per person and a definition of an underinsured motor vehicle substantially similar to the definition at issue in the present case.

¶ 40. The court of appeals concluded that because Grandstaffs vehicle was not an underinsured motor vehicle under the terms of the UIM motorist policy, Praefke could not recover from Sentry Insurance.

¶ 41. The court of appeals in Praefke did not consider whether Wis. Stat. § 632.32(4m) and (5)(i) rendered the policy definition of an underinsured motor vehicle an impermissible reducing clause. The Praefke court never got beyond the definition of an underin-sured motor vehicle. Accordingly Praefke does not resolve the issue presented in the instant case with multiple claimants in which the plaintiff argues that the definition of an underinsured motor vehicle contravenes §§ 632.32(4m) and (5)(i) under the facts of the present case.

¶ 42. The cases upon which American Family relies assist in our resolution of the issue presented in the instant case, but they do not resolve the instant case. These cases hold that the limits-to-limits definition of an underinsured motor vehicle in the policy should, under the UIM statute, be applied as written when one injured party recovers the full limits of the at-fault driver's liability policy. We therefore turn to Wis. Stat. § 632.32(5)(i), authorizing reducing clauses, to determine whether the limits-to-limits definition of an un-derinsured motor vehicle contravenes the statute under the circumstances of the present case.

C

¶ 43. The plaintiff contends that American Family's definition of an underinsured motor vehicle under the circumstances of the present case constitutes a hidden reducing clause and contravenes Wis. Stat. § 632.32(5)(i), which identifies the three permissible reducing clauses in a policy of uninsured or underin-sured motorist coverage as follows:

(i) A policy may provide that the limits under the policy for uninsured or underinsured motorist coverage for bodily injury or death resulting from any one accident shall be reduced by any of the following that apply:
1. Amounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made.
2. Amounts paid or payable under any worker's compensation law.
3. Amounts paid or payable under any disability benefits laws.

¶ 44. The only permissible reducing clause arguably applicable in the present case allowing a reduction of limits under a UIM policy is subdivision 1. of § 632.32(5)(i). Subdivision 1 allows an insurance policy to provide that the limits under the policy for UIM coverage for bodily injury resulting from any one accident may be reduced by the amounts paid by the insurer of the person who may be legally responsible for the bodily injury for which the payment is made. The definition of an underinsured motor vehicle is not listed under § 632.32(5)(i) as a permissible basis on which to reduce UIM limits.

¶ 45. American Family's UIM endorsement contains a reducing clause substantially incorporating the words of Wis. Stat. § 632.32(5)(i)l. The reducing clause states:

The limits of liability of this coverage will be reduced by:
1. A payment made or amount payable by or on behalf of any person or organization which may be legally hable, or under any collectible auto liability insurance, for loss caused by an accident with an underinsured motor vehicle.

¶ 46. The plaintiff argues that in the present case the effect of American Family's definition of an under-insured motor vehicle and its reducing clause is to permit the limits under her UIM policy for bodily injury (which are $300,000) to be reduced by $300,000 (the limits of the tortfeasor's liability), a sum larger than the amounts paid her by the tortfeasor's insurer, namely $250,000. This $300,000 reduction violates the very language of Wis. Stat. § 632.32(5)(i)l., which limits the reduction to the amounts paid by the tortfeasor's insurer for the bodily injury for which the payment is made. Instead the American Family policy reduces the plaintiffs UIM coverage by the amount of the tortfeasor's liability limits. Furthermore, the UIM endorsement does not comply with the purpose of UIM limits-to-limits coverage under § 632.32(4m), that is, it does not furnish the UIM insured with a predetermined, fixed level of insurance coverage.

¶ 47. The legislative history of 1995 Wis. Act 21 (1995 Senate Bill 6) adopting Wis. Stat. § 632.32(5) demonstrates that the statute restricts reductions to the liability limits to amounts paid to the UIM insured. The Legislative Reference Bureau's Analysis of the bill explains that the purpose of subdivision 1. of Wis. Stat. § 632.32(5)(i) is to permit reducing clauses based on amounts received by an injured person covered by an uninsured or underinsured motorist policy from other sources, including amounts paid by a person legally responsible. The Legislative Reference Bureau's Analysis attached to the bill available to all legislators states:

The bill also permits motor vehicle insurance policies to reduce the limits payable under the policy for uninsured or underinsured motorist coverage by payments received from other sources. Payments for bodily injury or death may be reduced by amounts paid by a person who is legally responsible ... .

¶ 48. We must read Wis. Stat. § 632.32(5)(i) with § 632.32(4m). Dowhower and Badger Mutual are instructive, although in those cases the UIM coverage had been triggered and only the validity of the reducing clause was at issue. These cases help explain that the purpose of UIM coverage under Wis. Stat. § 632.32(4m), along with the application of Wis. Stat. § 632.32(5)(i) governing reducing clauses, renders the definition of an underinsured motor vehicle invalid in the present case.

¶ 49. We have explained numerous times that the insured's purpose in purchasing a UIM policy is to purchase a predetermined, fixed level of UIM recovery that is arrived at by combining payments from all sources.

¶ 50. The Dowhower case explained that when Wis. Stat. § 632.32(4m)(d) and (5)(i) are "read together, they provide that an insured, who is purchasing UIM coverage containing a provision such as that permitted by Wis. Stat. § 632.32(5)(i)l, is purchasing a predetermined level of coverage against injury sustained from an underinsured motorist.... In total, these statutes establish that the UIM coverage limit purchased by the insured is reached by the combination of contributions from all legally responsible sources." In discussing the validity of a reducing clause, we stated in Dowhower (and quoted Dowhower with approval in Taylor) that a reducing clause in a UIM policy would be valid only if "the policy clearly sets forth that the insured is purchasing a fixed level of UIM recovery that will be arrived at by combining payments made from all sources."

¶ 51. Badger Mutual emphasized that the purpose of underinsured motorist coverage is to permit a prudent insured to purchase a predetermined, fixed amount of coverage that he or she will receive (up to the damages incurred) from all available sources, including the tortfeasor's liability insurance and his or her own underinsured motorist policy. We said in Badger Mutual that "[flnsureds will then understand that if they want to he assured of having, say, $200,000 in total available coverage, they will have to purchase UIM coverage with a $200,000 limit."

¶ 52. Our analysis of UIM coverage in these three cases reflects that the underlying purpose of the under-insured motorist statute is not to permit limits-to-limits coverage as such, but rather, to allow UIM policies that furnish an insured a predetermined, fixed level of coverage for an accident from a combination of the tortfeasor's insurance and the UIM insurance. When only one person is injured by the tortfeasor, comparing the tortfeasor's limits to the underinsured motorist limits supports this statutory purpose. In Badger Mutual, Dowhower, and Taylor there was only one claimant. Were we to allow the plaintiff, under the circumstances of the present case, to receive a payment from the tortfeasor's insurer that is less than the plaintiffs UIM coverage and not have the plaintiffs UIM coverage be triggered, the plaintiff would not have purchased a predetermined, fixed level of $300,000 coverage from some combination of sources of payment. Furthermore, the plaintiffs recovery would be reduced by an amount not permitted under Wis. Stat. § 632.32(5)(i).

¶ 53. Considering that the injured persons had separate UIM policies, and considering the purpose of UIM insurance, the narrow statutorily permitted reducing clauses, and the language of the reducing clause in the plaintiffs policy, we conclude that this insurance policy defining an underinsured motor vehicle by comparing underinsured motorist coverage limits to the limits of a tortfeasor's liability policy without considering the amount actually available to the insured from the tortfeasor's liability policy contravenes the concept that the UIM insured purchases a predetermined, fixed amount of coverage and operates as a hidden reducing clause.

¶ 54. American Family argues that its definition of an underinsured motor vehicle is not a reducing clause; it is nothing more than an unambiguous definition of underinsured motorist coverage. American Family argues that reducing clauses under Wis. Stat. § 632.32(5)(i) have a known and accepted meaning. Reducing clauses in UIM policies reduce the limits of the UIM policy by amounts paid from accepted sources such as liability payments, worker's compensation payments, and disability payments. As such, American Family argues, reducing clauses have a function that is separate and distinct from the triggering definition of UIM coverage.

¶ 55. We are not persuaded by American Family's argument. American Family's labeling a provision as a definition does not prevent us from analyzing the consequences of the provision to determine its validity. A proper analysis of an insurance policy considers the effect of a provision in a policy, not its characterization in the policy. Thus, in Mau v. North Dakota Insurance Reserve Fund, 2001 WI 134, ¶ 33, 248 Wis. 2d 1031, 637 N.W.2d 45, although an occupancy requirement was contained in the policy's definition of a "named insured" and was not stated as an exclusion, the definition produced the same result as an exclusion, and we treated it as an exclusion.

¶ 56. In the present case, the effect of American Family's definition of an underinsured motor vehicle as applied to the facts of the present case is to reduce UIM coverage to an insured when two or more persons covered by separate UIM policies are injured in a single occurrence. The definition of an underinsured motor vehicle does not provide the UIM insured with a predetermined, fixed UIM coverage and functions as a reducing clause, reducing UIM coverage provided to a UIM insured based not on payments to the insured but on payments made by the tortfeasor's insurance to other persons. Yet Wis. Stat. § 632.32(5)(i)l. permits reduction of limits of liability under UIM coverage only by amounts paid to the insured.

¶ 57. In sum, we conclude that the definition of an underinsured motor vehicle in the policy at issue functions, under the circumstances of the instant case, to reduce coverage below the predetermined, fixed amount of coverage purchased by the named insured. Because the reduction contravenes the purpose of UIM coverage and is not for amounts paid by a legally responsible person to the named insured, the provision is not authorized by Wis. Stat. § 632.32(4m) and (5)(i). We conclude that "tying the availability of UIM coverage to the amount of the tortfeasor's liability limits, even when a portion of those funds are paid to another claimant [who is not insured under the same UIM policy], is not consistent with any theory of UIM coverage that has been recognized by Wisconsin courts or approved by the legislature."

D

¶ 58. Having concluded that the policy definition of an underinsured motor vehicle in the plaintiffs policy serves, under the circumstances of the instant case, as an impermissible reducing clause, we must now turn to the remedy. Under Wis. Stat. § 631.15(3m), when an insurance policy violates a statutory provision, the remedy is to enforce the policy as though it conformed to the statutory requirement.

¶ 59. In the present case, to conform to Wis. Stat. § 632.32(4m) and (5)(i)l., the plaintiffs policy must be read to define an underinsured motor vehicle as an insured motor vehicle whose limits of liability paid or payable to the plaintiff are less than the limits of liability in the plaintiffs UIM policy because the tortfeasor's insurer has made payments to another claimant who does not share the plaintiffs UIM coverage.

¶ 60. Under this definition, the tortfeasor's vehicle is underinsured because the tortfeasor's insurer has paid $250,000 to the plaintiff, which is less than the tortfeasor's limits of liability and less than the plaintiffs UIM policy's stated limits of $300,000. Thus, the plaintiff is able to recover $50,000 from American Family, the difference between her $300,000 UIM policy and the $250,000 recovered from the tortfeasor's liability policy.

* ‡ ‡ ‡

¶ 61. We conclude that when a tortfeasor injures more than one person in a single occurrence and the injured persons are not insured under the same UIM policy, a definition of an underinsured motor vehicle that compares the injured person's UIM limits to the limits of a tortfeasor's liability policy without regard to the amount the injured person actually receives from the tortfeasor's insurer is invalid under Wis. Stat. § 632.32(4m) and (5)(i). The definition contravenes the purpose of UIM coverage under Wis. Stat. § 632.32(4m) and functions as an impermissible reducing clause when a tortfeasor injures more than one person in a single occurrence and the injured persons are not insured under the same UIM policy.

¶ 62. We further conclude that prior cases upholding similar definitions of an underinsured motor vehicle remain good law for the issues they reached but do not resolve the issue presented in the instant case. The prior cases, unlike the instant case, involved only one injured person and the injured person was paid the full amount of the tortfeasor's liability policy.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded.

        Welin v. Am. Family Mut. Ins. Co., No. 2004AP1513, unpublished slip op. (Wis. Ct. App. May 24, 2005).

       We do not address the situation in which the injured persons are insured under the same UIM policy. In the present case the plaintiff is insured under an American Family UIM policy and the other injured person, Joshua J. Opichka, is insured under a Hastings Mutual Insurance Co. UIM policy.

       The parties also stipulated that Opichka's damages were greater than the $50,000. On August 28, 2005, we ordered Opichka's petition for review of his case, Welin v. Pyrzynski, No. 2004AP2386, unpublished slip op. (Wis. Ct. App. June 16,2005), held in abeyance pending our decision in the instant case.

        West Bend Mut. Ins. Co. v. Playman, 171 Wis. 2d 37, 40, 489 N.W.2d 37 (1992).

        Prince v. Bryant, 87 Wis. 2d 662, 666, 275 N.W.2d 662 (1979).

       The plaintiff also asks us to determine whether American Family's definition of an underinsured motor vehicle renders her coverage illusory and to determine that the policy in the present case is rendered ambiguous by the "Special Notice to Policy Holders" contained in the plaintiffs policy, which served the purpose of offering underinsured motorist coverage. Because we determine that in cases when there is more than one injured party covered by separate UIM policies a limit-to-limit definition of underinsured motor vehicle functions as an impermissible reducing clause, we need not address these issues.

        State Farm Mut. Auto. Ins. Co. v. Langridge, 2004 WI 113, ¶ 16, 275 Wis. 2d 35, 683 N.W.2d 75; Badger Mut. Ins. Co. v. Schmitz, 2002 WI 98, ¶ 17, 255 Wis. 2d 61, 647 N.W.2d 223; Taylor v. Greatway Ins. Co., 2001 WI 93, ¶¶ 32-35, 245 Wis. 2d 134, 628 N.W.2d 916 (Bradley, J., dissenting); 3 Irwin E. Schermer & William J. Schermer, Automobile Liability Insurance § 40.01 (4th ed. 2004).

        Langridge, 275 Wis. 2d 35, ¶ 17 (quoting Badger Mut Ins. Co. v. Schmitz, 2002 WI 98, ¶ 18, 255 Wis. 2d 61, 647 N.W.2d 223); Badger Mut. Ins. Co. v. Schmitz, 2002 WI 98, ¶ 33, 255 Wis. 2d 61, 647 N.W.2d 223 (quoting Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73, ¶ 17, 236 Wis. 2d 113, 613 N.W.2d 557).

        See Schmitz, 255 Wis. 2d 61, ¶ 33 ("[T]he legislature made clear that the second theory of UIM coverage, in which the insured is purchasing a fixed amount of coverage, is not invalid per se.").

         See, e.g., Langridge, 275 Wis. 2d 35, ¶ 35; Praefke v. Sentry Ins. Co., 2005 WI App 50, ¶¶ 7, 12-13, 279 Wis. 2d 325, 694 N.W.2d 442 (limits-to-limits coverage invokes the second view that UIM coverage "is a 'predetermined, fixed' sum made up of payments from both policies").

        Taylor, 245 Wis. 2d 134, ¶ 13 (citing Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 811, 814,456 N.W.2d 597 (1990)).

        Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 811, 814, 456 N.W.2d 597 (1990).
      In Smith the limit of the insured's UIM policy was $50,000 and the limit of the responsible person's liability policy was also $50,000. There was only one injured person in Smith. The UIM insured had available the full limits of the responsible person's liability policy and was paid the full limits of that policy.

       The definition of an underinsured motor vehicle in the underinsured motorist endorsement in the present case is identical to the definition at issue in the American Family policy issued in the Taylor case.

        Taylor, 245 Wis. 2d 134, ¶ 28.

       Unlike the present case, in Taylor the insured did "not argue that any section, or combination of sections, in each UIM policy issued by American Family violate[d] Wis. Stat. § 631.43 or any other statute." Taylor, 245 Wis. 2d 134, ¶ 13. The issue in Taylor was whether a reasonable insured would understand the Greatway policy to be a limits-to-limits or limits-to-damages underinsured motorist policy. This case, on the other hand, addresses whether a limits-to-limits underinsured motorist policy is permissible when there are multiple claimants with separate UIM policies.

       Under the circumstances of the present case, if American Family's position is adopted, the plaintiff would have been better off had the tortfeasor had no liability insurance. With liability limits for uninsured motorist coverage of at least $300,000 (the liability limit, she purchased for underinsured motorist coverage), the plaintiff would have recovered $300,000 from her uninsured motorist policy with American Family had the tortfeasor had no liability insurance. Ifet, under American Family's theory of the instant case, she recovers only $250,000 with UIM coverage and a partially insured tortfeasor. This result does not make any sense.

        Taylor, 245 Wis. 2d 134, ¶¶ 24-25 ("In Dowhower, we held that a reducing clause in an UIM policy is valid so long as 'the policy clearly sets forth that the insured is purchasing a fixed level of UIM recovery that will be arrived at by combining payments made from all sources.'... We conclude that the language in each of American Family's policies at issue satisfies the requirements of Dowhower.").

        See also Schmitz, 255 Wis. 2d 61, ¶ 33.

        Langridge, 275 Wis. 2d 35, ¶ 35.

        Langridge, 275 Wis. 2d 35, ¶ 35 (emphasis in Langridge, not Anderson).

        See, e.g., cases cited in 1 Arnold E Anderson, Wisconsin Insurance Law § 4.31 (Dec. 2004); 3 Schermer & Schermer, supra note 7, § 40.10; 24 Eric Mills Holes, Appleman on Insurance 2d § 147.5[D] (2004); 3 Alan I. Widiss, Uninsured and Underinsuerd Motorist Insurance § 35.5 (rev. 2d ed. 2001); Lee R. Russ, Annotation, Right to Recover Under Uninsured or Underinsured Motorist Insurance for Injuries Attributable to Joint Tortfeasors, One of Whom Is Insured, 24 A.L.R. 4th 63, § 7 (1983) (Supp. 1999).

        Praefke, 279 Wis. 2d 325, ¶¶ 12-13.

       Praefke's brief argued that, when read as a whole, his policy was ambiguous as to whether the reducing clause included in his underinsured motorist endorsement applied to the underinsured motorist coverage. Nowhere in his court of appeals brief did Praefke argue that the definition of underin-sured motorist itself constituted an impermissible reducing clause.
      Praefke argued that because the purpose of UIM coverage is to provide a predetermined, fixed level of coverage, a reasonable insured would understand that the definition of an under-insured motor vehicle would operate to compare the UIM policy limits with the amounts actually paid by the at-fault driver's insurer.

       We disagree with the court of appeals' decision in the present case that Praefke is controlling. In Praefke, the court of appeals considered only whether the language of the policy definition of an underinsured motor vehicle was ambiguous. The court of appeals did not address the issue raised in the instant case but not raised in Praefke: whether the definition of an underinsured motor vehicle constitutes an impermissible reducing clause. We therefore need not overturn Praefke. It is limited to its holding that the limits-to-limits definition of an underinsured motorist was unambiguous in that case.
      We note, however, that the court of appeals concluded in its second opinion on reconsideration of Opichka's case (Welin v. Pyrzynski, No. 2004AP2386, unpublished slip op. (Wis. Ct. App. June 16, 2005)) that the Praefke case did control Opichka's case (whose facts are substantially similar facts to those in the instant case), even though the Praefke court did not address the reducing clause argument. The court of appeals commented, however, that Opichka's arguments (which are similar to the plaintiffs arguments in the present case) were persuasive and suggested that courts and litigants would benefit from this court's review of those arguments. See Welin v. Pyrzynski, No. 2004AP2386, unpublished slip op. (Wis. Ct. App. June 16, 2005) (second opinion in Opichka's case).
      The court of appeals in its first decision in Opichka's case determined that although Taylor controlled the interpretation of the policy language, Taylor did not address the relationship between the statutory purpose of underinsured motorist coverage, the reducing clause statute, and the multiple injured parties situation. The court of appeals concluded that the limits-to-limits definition of an underinsured motor vehicle, when there are two injured parties with separate UIM policies, functions as an impermissible reducing clause. See Welin v. Pyrzynski, No. 2004AP2386, unpublished slip op. (Wis. Ct. App. April 21, 2005) (first opinion in Opichka's case, withdrawn on motion for reconsideration May 17, 2005).

       Drafting Record for 1995 Wis. Act 21, re: S.B. 6, located at the Wisconsin Legislative Reference Bureau, Madison, Wis. (emphasis added). For a discussion of the Legislative Reference Bureau's analysis of bills, see State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 69, 271 Wis. 2d 633, 681 N.W.2d 110 (Abrahamson, C.J., concurring).

        See generally 1 Anderson, supra note 19, §§ 3.47-52 (discussing the reducing clause provisions of Wis. Stat. § 632.32(5)(i) enacted by 1995 Wis. Act 21).

        Dowhower, 236 Wis. 2d 113, ¶ 20.

        Id., ¶ 33. See Taylor, 245 Wis. 2d 134, ¶¶ 24-25.

        Schmitz, 255 Wis. 2d 61, ¶¶ 36-38.

        Id., ¶ 38.

        Mau v. North Dakota Ins. Reserve Fund, 2001 WI 134, ¶ 33, 248 Wis. 2d 1031, 637 N.W.2d 45 ("Although the occupancy requirement is part of the definition of named insured, for our analysis, we treat the definition the same as an exclusion. The purpose of the occupancy requirement is to exclude coverage for persons not occupying the Alamo rental car. The occupancy requirement, therefore, produces the same result as an exclusion."). But see 1 Anderson, supra note 19, § 4.24 (suggesting that Wisconsin case law supports the proposition that if the policy is not triggered in the first place, one does not get to any reducing clause issues).

        Klinger v. Prudential Prop. & Cas. Ins. Co., 2005 WI App 105, ¶ 16, 282 Wis. 2d 535, 700 N.W.2d 290.

        Welin v. Pyrzynski, No. 2004AP2386, unpublished slip op., ¶ 24 (Wis. Ct. App. Apr. 21, 2005) (first Opichka opinion, withdrawn on motion for reconsideration May 17, 2005).

       Wis. Stat. § 631.15 Contract rights under noncomplying policies.
      (1) Enforcement of policy terms. Except as otherwise specifically provided by statute, a policy is enforceable against the insurer according to its terms, even if it exceeds the authority of the insurer.
      (3m) Enforcement of statute and rule requirements. A policy that violates a statute or rule is enforceable against the insurer as if it conformed to the statute or rule.