author: CANE, C.J.

text:
    In re the Commitment of Bernard G. Tainter: State of Wisconsin, Petitioner-Respondent, v. Bernard G. Tainter, Respondent-Appellant.

    Court of Appeals

      No. 01-2644.

      Submitted on briefs November '11, 2002. —
    Decided November 26, 2002.

    2002 WI App 296
    (Also reported in 655 N.W.2d 538.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Jack E. Schairer, assistant state public defender.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Warren D. Weinstein, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 2-19-03.

   CANE, C.J.

¶ 1. Bernard Tainter appeals a judgment entered on a jury verdict finding him a sexually violent person, an order committing him to institutional care pursuant to Wis. Stat. ch. 980, and an order denying his motion for post-trial relief. Tainter argues (1) ch. 980 violates due process because it does not require a separate finding of serious difficulty in controlling behavior; (2) the jury instructions misled the jury and violated his due process rights; (3) a new trial is warranted because the case was not tried in the county where the predicate offense was committed; (4) a new trial is ..warranted because the State's use of actuarial instruments to predict Tainter's likelihood of reoffense was not fully tried; and (5) changes to ch. 980 violate equal protection. We determine issues one and two are controlled by our supreme court's decision in State v. Laxton, 2002 WI 82, 254 Wis. 2d 185, 647 N.W.2d 784, and reject both arguments. Further, we conclude a new trial is not warranted under issues three and four. Finally, we reject Tainter's claim under issue five because it is controlled by our decision in State v. Williams, 2001 WI App 263, 249 Wis. 2d 1, 637 N.W.2d 791. Accordingly, we affirm the trial court's judgment and orders.

BACKGROUND

¶ 2. The State sought to commit Tainter pursuant to Wis. Stat. ch. 980 in April 2001. Tainter had been convicted of first-degree sexual assault of a child in 1995. The assault took place in Sawyer County. The State filed the ch. 980 petition in Barron County because it was where Tainter was scheduled to be released. At the time the petition was filed, Tainter was incarcerated at the Jackson Correctional Facility in Jackson County.

¶ 3. Tainter requested his commitment trial be held in Sawyer County because he is a Native American and wanted to be tried in a county with a larger population of Native Americans than Barron County. The trial court denied this motion. In addition, Tainter requested the State be precluded from introducing the results of a number of actuarial instruments measuring Tainter's likelihood of reoffense. The court denied this motion as well.

¶ 4. At trial, the State called Dr. Richard McKee, a psychologist, who testified that it was substantially probable that Tainter would commit a future act of sexual violence because of his mental disorder. He determined Tainter suffers from pedophilia, sexually attracted to females, nonexclusive type. In addition, he said Tainter had an antisocial personality disorder and substance abuse problems that made it more likely that Tainter would commit a future act of sexual violence. McKee said he assessed Tainter's likelihood of reoffense by using actuarial instruments, specifically the Rapid Risk Assessment of Sex Offender Recidivism (RRA-SOR), Static-99, and the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R). McKee said these instruments showed Tainter has a high risk of reoffense and because of Tainter's mental disorders, McKee concluded Tainter was likely to commit a future act of sexual violence.

¶ 5. In addition, the State presented the testimony of Dr. Sheila Fields, also a psychologist. She diagnosed Tainter with pedophilia. She also completed the RRSAOR, Static-99 and the MnSOST-R, and concluded that it was substantially probable that Tainter would commit a future act of sexual violence because of his mental disorder.

¶ 6. The jury found Tainter to be a sexually violent person and the court ordered his commitment. Tainter brought post-trial motions challenging the sufficiency of the evidence, the court's refusal to change venue and the admission of the results of the actuarial instruments. The court denied Tainter's motions and he now appeals.

DISCUSSION

¶ 7. Tainter raises several arguments. He claims (1) Wis. Stat. ch. 980 violates due process because it does not require a separate finding that the person being committed has serious difficulty controlling his or her behavior; (2) the standard jury instruction given in his trial misstated the law, mislead the jury, and violated substantive due process; (3) he should receive a new trial because he had a right to have his trial in Sawyer County; (4) he should receive a new trial because the proper use of the actuarial instruments was not fully tried; and (5) changes to ch. 980 violate equal protection.

A. Due Process

¶ 8. We first address Tainter's claim that Wis. Stat. ch. 980 violates due process because it does not require a separate finding that the person being committed has a substantial difficulty in controlling his or her behavior. He argues this finding is required by the United States Supreme Court's decision in Kansas v. Crane, 534 U.S. 407 (2002), where the Court considered Kansas' sexually violent persons commitment statute. In Crane, the Court concluded due process requires a finding that persons being committed have a serious inability to control their behavior. Id. at 412-13.

¶ 9. Our supreme court's decision in Laxton controls our resolution of this issue. In Laxton, the court determined Wis. Stat. ch. 980 satisfied the due process requirements of Crane. Laxton, 2002 WI 82 at ¶¶ 22-23. The court ruled ch. 980's requirement of proving a nexus between the mental disorder and an individual's dangerousness implicitly involves proof that the person has a serious difficulty in controlling his or her behavior. Id. The court specifically determined ch. 980 does not require a separate finding of the person's inability to control his or her behavior to comply with due process. Id. at ¶ 2. Consequently, we reject Tainter's claim.

B. Jury Instruction

¶ 10. We also determine Laxton controls Tainter's claim that the pattern jury instruction regarding the commitment of sexually violent persons, Wis JI— Criminal 2502, misstated the law and violated his due process rights. Tainter argues this instruction did not properly reflect the Supreme Court's decision in Crane. Our supreme court, however, rejected the same argument in Laxton, concluding because the jury instruction accurately tracked the statute and because the statute complied with due process, the jury instruction was proper. Id. at ¶ 27.

C. Right to Trial in Sawyer County

¶ 11. Tainter next argues he is entitled to a new trial because he had a right to have his trial in Sawyer County, where he committed the predicate sexual assault. Prior to trial, Tainter sought to change the trial's venue to Sawyer County because he wanted a jury pool with more Native American members. He does not, however, make this argument on appeal. Instead, he contends he had a right to have his trial in Sawyer County because of Wis. Stat. § 980.05(lm), which grants all the constitutional rights of criminal defendants to persons being tried under Wis. Stat. ch. 980. Tainter argues that because criminal defendants have the right under art. I, § 7, of the Wisconsin Constitution to have their trial in the county where the crime was committed, he has the right to have his commitment trial in the county where he committed the predicate offense.

¶ 12. A determination on the constitutional rights afforded to Wis. Stat. ch. 980 respondents involves an interpretation of ch. 980. State v. Sorenson, 2002 WI 78, ¶ 18, 254 Wis. 2d 54, 646 N.W.2d 354. We review constitutional and statutory interpretation questions de novo. Id. "If the language of the statute clearly and unambiguously sets forth the legislative intent, we need not look beyond the language to determine the meaning of the statute." Id. (citation omitted).

¶ 13. Wisconsin Stat. § 980.05(lm) unambiguously provides ch. 980 respondents with the same constitutional protections afforded to criminal defendants. Id. at ¶ 19. It states: "At the trial to determine whether the person who is the subject of a petition under s. 980.02 is a sexually violent person, all rules of evidence in criminal actions apply. All constitutional rights available to a defendant in a criminal proceeding are available to the person."

¶ 14. Wisconsin Const, art. I, § 7, grants criminal defendants the right to a trial "by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law." Tainter claims this provision conflicts with Wis. Stat. § 980.02(4) and (5), which allow the commitment trial to be held in the county where the person committed the predicate offense, the county where the person is to reside upon discharge, the county where the person is incarcerated, or Dane County. Tainter argues his right under Wis. Stat. § 980.05(lm) should trump § 980.02(4) and (5) and we should grant him a new trial. We disagree.

¶ 15. We determine the language of the two statutes and the constitution shows the legislature did not intend to extend a defendant's right to trial in the county where the crime was committed to persons being tried under Wis. Stat. ch. 980. While the legislature intended to afford individuals in ch. 980 proceedings the constitutional rights afforded to criminal defendants, its enactment of a statute specifically addressing venue reveals its intent not to extend a criminal defendant's right to trial in the county of the offense. Subsections 980.02(4) and (5) specifically deal with venue, while § 980.05(lm) is a general statute addressing constitutional rights. Where a general statute conflicts with a specific statute, the specific statute prevails. State v. Smith, 106 Wis. 2d 151, 159, 316 N.W.2d 124 (Ct. App. 1982).

¶ 16. Our conclusion is consistent with our earlier construction of Wis. Stat. § 980.05(lm). In State v. Bernstein, 231 Wis. 2d 392, 605 N.W.2d 555 (Ct. App. 1999), we determined § 980.05(lm) did not grant a person being committed under ch. 980 the same right to a jury trial as a criminal defendant because of § 980.05(2)'s specific jury trial provisions. Id. at 399-400. We concluded the specific statute must control over the general one and further determined that allowing § 980.05(lm) to control would render § 980.05(2) superfluous. Id. at 400. Here, we are presented with a similar situation. Section 980.02(4) and (5) are specific statutes and interpreting § 980.05(lm) to control would render them meaningless.

¶ 17. Even if we were to conclude the right to a trial in the county where the crime was committed extended to Wis. Stat. ch. 980 proceedings, Wis. Const. art. I, § 7 does not prohibit the legislature from enacting statutes requiring trials be held in certain counties. See Dolan v. State, 48 Wis. 2d 696, 702, 180 N.W.2d 623 (1970). In Dolan, the supreme court determined a statute requiring all correctional institution escapes to be tried in Dodge County did not conflict with art. I, § 7. Id. The court read the language "which county or district shall have been previously ascertained by law" to allow the legislature to provide that escapes from custody could be tried in only one county. Id. Similarly, the legislature could provide that ch. 980 proceedings could be held in a county other than the one in which the predicate offense was committed.

D. Actuarial Instruments

¶ 18. Tainter next argues we should exercise our discretionary power under Wis. Stat. § 752.35 to grant a new trial in the interest of justice because the proper use of the actuarial instruments as predictors of his reoffense risk was not fully tried. To establish that the real controversy has not been fully tried, Tainter must convince us that either the jury was precluded from considering important testimony that bore on an important issue or that certain evidence that was improperly received clouded a crucial issue. State v. Cleveland, 2000 WI App 142, ¶ 21, 237 Wis. 2d 558, 614 N.W.2d 543.

¶ 19. Tainter's claim addresses both prongs of this test. Tainter contends the trial court improperly admitted testimony regarding instruments. In addition, he argues the jury was unable to consider a journal article published after trial that criticized the predictive ability of the actuarial instruments. We reject both of Tainter's arguments.

¶ 20. First, we determine the trial court properly admitted testimony regarding the actuarial instruments. Evidentiary rulings are reviewed for an erroneous exercise of discretion. See Burkes v. Hales, 165 Wis. 2d 585, 590, 478 N.W.2d 37 (Ct. App. 1991). A court properly exercises discretion when it considers the facts of record under the proper legal standard and reasons its way to a rational conclusion. Id. Here, the trial court determined the instruments were relevant because they were "the type of information commonly and reasonably relied up [on] by experts in the field of sex offender risk assessment to draw conclusions about future risk." In its ruling, the court made clear that Tainter was free to cross-examine the State's experts regarding the instruments as to their weight and credibility. We conclude this was a proper exercise of discretion.

¶ 21. Tainter urges us to reconsider the "gatekeeper" function of Wisconsin trial courts regarding expert testimony. This role is limited, especially when compared with the federal court system. Green v. Smith & Nephew AHP, Inc., 2000 WI App 192, ¶ 21, 238 Wis. 2d 477, 617 N.W.2d 881, aff'd, 245 Wis. 2d 772, 629 N.W.2d 727 (2001). In Wisconsin, scientific testimony is admissible if it is an aid to the jury or reliable enough to be probative. Id. Once the relevancy of the testimony is established and the witness is qualified as an expert, the reliability of the evidence is a weight and credibility issue for the fact finder and any reliability challenges must be made through cross-examination or by other means of impeachment. Id.

¶ 22. We recently certified Conley Pub. Group, Ltd. v. Journal Communications, Inc., No. 01-3128, cert. granted Sept. 26, 2002, where we asked the supreme court to reconsider the gatekeeper function regarding expert testimony in an antitrust case. Tainter argues because of this certification, we should reconsider the gatekeeper role in this case as well. The certified case, however, concerns antitrust issues. Wisconsin courts are to conform state antitrust law to federal antitrust law. Prentice v. Title Ins. Co., 176 Wis. 2d 714, 724, 500 N.W.2d 658 (1993). The question in the certification is whether, in the antitrust context, Wisconsin courts should adopt the more restrictive federal gatekeeper role for expert testimony. It does not challenge the overall gatekeeper function in Wisconsin and we decline Tainter's invitation to reconsider it here.

¶ 23. Tainter also argues he is entitled to a new trial because the jury was not able to hear important evidence, namely a journal article, published after his trial that questioned the reliability of one of the actuarial instruments. Discretionary reversal is a formidable power that should be exercised sparingly and with great caution. See State v. Watkins, 2002 WI 101, ¶ 79, 255 Wis. 2d 265, 647 N.W.2d 244. We decline to exercise it here. Prior to trial, Tainter listed several journal articles describing the shortcomings of the actuarial instruments on his exhibit list. Our review of the record shows he never used them to cross-examine the state's experts. In light of Tainter's failure to use similar evidence at his trial, we determine it would not be in the interest of justice to grant a new trial based on a journal article published post-trial.

E. Equal Protection

¶ 24. Finally, Tainter argues the legislature's changes to Wis. Stat. ch. 980 in 1999 by Wis. Act 9 violate his right to equal protection. Among these changes is a requirement that persons committed under ch. 980 be institutionalized and does not allow them to petition for release for at least eighteen months. Tainter claims this violates his right to equal protection because persons committed under other procedures, such as Wis. Stat. ch. 51, are not subject to the same restrictions.

¶ 25. Tainter acknowledges we rejected these arguments in Williams, 2001 WI App 263. At the time he filed his brief, however, the supreme court was considering a petition for review in Williams. The supreme court has since denied the petition. Consequently, we reject Tainter's equal protection argument.

By the Court. — Judgment and orders affirmed.

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


source: Caselaw Access Project

author: PETERSON, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Donald L. Tappa, Defendant-Appellant.
    Court of Appeals

      No. 02-0247-CR.

      Submitted on •briefs November 11, 2002.—

      Decided November 26, 2002.

    2002 WI App 303
    (Also reported in 655 N.W.2d 223.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Kevin D. Musolf of Robinson Law Firm, Appleton.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general and Warren D. Weinstein, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   PETERSON, J.

¶ 1. Donald L. Tappa was convicted of burglary and theft of a firearm, both as party to a crime. On appeal, he argues that his right to substitution of judge was violated when the trial court judge failed to disclose that he was the victim of a burglary ten years earlier. Tappa also argues that the case should be remanded for new sentencing because (1) the trial court placed excessive emphasis on the rural setting of the burglaries and Tappa's prior record to the exclusion of other factors; and (2) the sentence was excessive. We disagree and affirm the judgment and order.

FACTS

¶ 2. On April 11, 2001, a complaint was filed charging Tappa with burglary, theft of a firearm and theft, all as party to a crime. The offenses were allegedly committed in cottages in rural Marinette County. After the preliminary hearing, the State also charged Tappa with burglary to another cottage and misdemeanor theft, again both as party to a crime. At the arraignment, Tappa pled not guilty to all charges.

¶ 3. In July 2001, after a plea bargain, Tappa pled no contest to one burglary charge and the theft of a firearm charge. The remaining charges were dismissed and read in at sentencing along with an uncharged burglary. The joint recommendation of the State and the defense was three years' probation, five months in jail with work release, restitution, costs, and truthful testimony against any co-defendant.

¶ 4. At sentencing, the State argued for the joint recommendation. The defense argued that Tappa's role in the crimes was only as a follower, that he accepted responsibility for his actions, and that he had successfully completed treatment in the past. Tappa also noted that, like himself, his co-defendants both had prior records. One was sentenced to three years in prison and the other to three years' probation and thirty days in jail. Finally, Tappa argued that all the victims except one requested probation, jail, community service, and restitution.

¶ 5. On the burglary charge, the court sentenced Tappa to fifteen years, with eight years' initial confinement and seven years' extended supervision. On the theft of a firearm charge, the court sentenced Tappa to ten years, with five years' initial confinement and five years' extended supervision. The sentences were to run concurrently. The court also ordered restitution and costs.

¶ 6. Before filing a postconviction motion, Tappa's attorney became aware that the sentencing judge was once the victim of a burglary. Tappa's attorney contacted the attorney of one of Tappa's co-defendants to alert him to this fact. At the co-defendant's sentencing, his attorney asked the judge about it. The judge responded that he was the victim of a burglary ten years before at his deer camp of which he was a ten percent owner, but that it did not create any prejudice.

¶ 7. Tappa filed a postconviction motion alleging that his right to substitution of judge under Wis. Stat. § 971.20 was violated because the judge did not disclose that he had been the victim of a burglary. Tappa also alleged that the court erroneously exercised its sentencing discretion by relying too heavily on the fact that the burglaries were in a rural setting and on Tappa's prior record, to the exclusion of other contravening considerations. In addition, Tappa alleged an erroneous exercise of discretion by rendering an excessive sentence.

¶ 8. At the motion hearing, Tappa testified that he would have exercised his right to substitute the judge had he known the judge was a victim of a burglary. The judge stated that his decision was not influenced in any way by the burglary of which he was a victim. The court also stated that the sentence was not excessive, but was in line with the presentence recommendation of six to eight years' confinement and three to five years' extended supervision. The court denied Tappa's motion, and he appeals.

DISCUSSION

I. Substitution of Judge

¶ 9. Wisconsin Stat. § 971.20 provides for the right of a defendant in a criminal action to one substitution of judge. Tappa argues that his right to substitution of judge was violated because the trial judge failed to inform him of the fact that the judge was the victim of a burglary ten years before this case. Tappa claims he would have exercised the right to substitute had he known this fact. He therefore contends that his case should be remanded to allow him to exercise his right to substitution of judge.

¶ 10. This issue turns upon the interpretation and application of Wis. Stat. § 971.20. An issue of statutory interpretation presents a question of law, which we review independently. State v. Isaac J.R., 220 Wis. 2d 251, 255, 582 N.W.2d 476 (Ct. App. 1998).

¶ 11. Tappa claims that if the judge had informed him of the burglary to his cabin, he would have exercised his right to substitute the judge. He argues that a defendant must be fully informed in order to exercise the right, especially when the judge is a victim of a crime that is similar to a defendant's charged crime.

¶ 12. There is no requirement in Wis. Stat. § 971.20 that a judge must inform defendants of their right to substitution of judge. Neither does the statute state that a judge must provide facts bearing on a defendant's exercise of this right. Tappa cites no case law or statutory support for his claim that a judge must disclose this sort of information.

¶ 13. There are safeguards that protect a defendant's right to an impartial judge. For example, a judge is required to recuse himself or herself if the judge cannot be impartial in a particular case. Wis. Stat. § 757.19(2)(g). Additionally, if a defendant is actually treated unfairly by a judge, the defendant can argue a due process violation. State v. Hollingsworth, 160 Wis. 2d 883, 894, 467 N.W.2d 555 (Ct. App. 1991). We note, however, that the right to judicial substitution is not sufficient by itself to trigger due process concerns. State v. Kywanda F., 200 Wis. 2d 26, 36, 546 N.W.2d 440 (1996).

¶ 14. Tappa's argument has no logical stopping point. For example, what exactly would a judge have to disclose? This could range from being a victim of an identical crime to any crime at all. Additionally, what would be the time limit? Here, the judge was a victim of a crime ten years earlier. Based on Tappa's argument, a judge may have to reveal any crime of which he or she was ever a victim, regardless how much time has passed. In Tappa's case, the judge stated that he did not even recall the burglary to his cottage until Tappa's co-defendant's attorney reminded him. Tappa's argument is impractical and unworkable.

II. Sentencing

¶ 15. Tappa argues that the trial court erroneously exercised its discretion by placing too much emphasis on the rural location of the burglaries and on Tappa's record. He also argues that the court erroneously exercised its discretion because the sentence is excessive.

¶ 16. Sentencing is vested in the trial court's discretion, and a defendant who challenges a sentence has the burden to show that it was unreasonable because it is presumed that the trial court acted reasonably. State v. Lechner, 217 Wis. 2d 392, 418, 576 N.W.2d 912 (1998). The primary factors considered in imposing sentence are the gravity of the offense, the character of the offender, and the need for the public's protection. Elias v. State, 93 Wis. 2d 278, 284, 286 N.W.2d 559 (1980). If the trial court exercises its discretion based on the appropriate factors, its sentence will not be reversed unless it is "so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances." Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975).

¶ 17. First, Tappa argues that the court gave too much weight to the fact that the burglaries took place in a rural area. Furthermore, although the court stated that it was looking at how people in rural areas would feel, Tappa argues his sentence actually went against the wishes of the victims. Tappa also contends that when the court looked at Tappa's prior record, it failed to consider that Tappa had previously completed supervision and counseling and would likely again respond to supervision and counseling now. Tappa also argues that the court failed to look at Tappa's role in the burglaries. Tappa maintains that his role was as a follower, and he is therefore not likely to commit these crimes again.

¶ 18. We determine, however, that the court did take into account the appropriate factors in its sentencing determination. The court noted the seriousness of the offense, observing that burglaries are dangerous felonies in which both the perpetrator and the owners of the property could easily be hurt. The court then analyzed Tappa's character, commenting that Tappa was not respectful of the police. The court also characterized Tappa's prior record as "atrocious." Tappa has been convicted of multiple burglaries as well as drug charges. Finally, the court turned to the needs of society, stating that Tappa was not a good risk to the community and would continue to commit crimes. Because the trial court clearly laid out its reasoning for the sentence, analyzing each of the three primary factors, the sentence was fully within the court's discretion.

¶ 19. Finally, Tappa argues that the court erroneously exercised its discretion in giving him a sentence that exceeds the plea bargain. He points out that his co-defendants, one of whom he claims was the leader of the group, all received lighter sentences.

¶ 20. The court is not required to base its sentence determination on the sentences of other defendants. Lechner, 217 Wis. 2d at 427. The court is also not required to follow the terms of the plea bargain. State v. Williams, 2000 WI 78, ¶ 16, 236 Wis. 2d 293, 613 N.W.2d 132. The court based its sentence on the appropriate factors. In fact, the sentence is close to the initial six- to eight-year prison sentence recommended in the presentence investigation. The sentence is not so excessive as to shock public sentiment.

By the Court. — Judgment and order affirmed.

       The court asked the defense about the one victim who requested that Tappa he put in jail. The defense stated that the presentence investigator tried to get in touch with that victim but the victim never replied. The defense therefore concluded that .the victim must not have been too concerned about the situation.

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

       Indeed, Tappa's disclosure argument is not necessarily limited to revealing crimes. A judge might have to reveal things that may only be tangentially related to a particular case, but that a defendant might use as a basis for exercising the right to substitution of judge. For example, a judge might have to inform defendants of the judge's record in accepting plea agreements.


author: HOOVER, PJ.

text:
    Mark Anderson and Janet Anderson, his wife, Plaintiffs-Appellants, v. American Family Mutual Insurance Company, Mary Anne Brasure and Gregory L. Brasure, Defendants-Respondents.

    Court of Appeals

      No. 02-0980.

      Submitted on briefs October 29, 2002. —
    Decided November 26, 2002.

    2002 WI App 315
    (Also reported in 655 N.W.2d 531.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Frank W. Kowalkowski and Wanezek, Umentum & Jaekels, S.C. of Green Bay.
    On behalf of the defendant-respondent American Family Mututal Insurance Company, the cause was submitted on the brief of Jeffrey T. DeMeuse and Everson, Whitney, Everson & Brehm, S.C. of Green Bay.
    On behalf of the defendant-respondent Mary Anne Brasure, the cause was submitted on the brief of Mark A. Pennow and Denissen, Kranzush, Mahoney & Ewald, S.C. of Green Bay.
    On behalf of the defendant-respondent Gregory L. Brasure, the cause was submitted on the brief of Sandra L. Hupfer and Stellpflug, Janssen, Hammer, Kirschling & Bartels, S.C. of De Pere.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review granted 4-22-03.

   HOOVER, PJ.

¶ 1. Mark and Janet Anderson appeal a summary judgment finding that Mary Anne Brasure and her son Gregory Brasure are immune from civil liability under Wis. Stat. § 125.035 for providing the Andersons' underage son, Craig, with alcohol. The Andersons also appeal the portion of the judgment that found Gregory was not covered by his father's insurance policy issued by American Family Mutual Insur-anee Company. While we agree with the trial court that Gregory was immune from suit and not covered by the insurance policy, Mary Anne is not immune from suit. Thus, we affirm the judgment in part, reverse it in part, and remand for further proceedings.

Background

¶ 2. On or about March 19, 1999, Mary Anne purchased a bottle of vodka for Gregory, who was not yet twenty-one years old. She left it for him along with a note that said, "Greg, you owe me $12.00." Gregory, Craig, and Robert Tripp went to vacation property owned by Mary Anne and her husband, Garth. Gregory, Craig, and Robert drank Gregory's vodka. Tragically, Craig died either late that day or early the next day while at the vacation property with Gregory. The coroner attributed his death to acute alcohol intoxication. Additional facts will be added to the discussion where relevant.

¶ 3. The Andersons brought a claim for Craig's wrongful death against Mary Anne, Gregory, and the Brasures' insurer, American Family. Mary Anne and Gregory moved for summary judgment on the basis of Wis. Stat. § 125.035(2), which provides immunity from civil liability arising from providing alcoholic beverages to another. American Family moved for summary judgment on the basis of specific exclusions in its policy. The trial court entered a judgment that (1) granted summary judgment finding Mary Anne immune, dismissing claims against her and American Family; (2) granted summary judgment finding Gregory immune, dismissing claims against him and American Family; (3) granted summary judgment finding that American Family's policy did not cover Gregory; and (4) denied summary judgment regarding American Family's coverage of Mary Anne, stating that there were genuine issues of material fact regarding her coverage. The Andersons now appeal the three parts of the motion that were granted.

Discussion

¶ 4. We review summary judgments de novo, applying the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). The methodology is well established and need not be repeated here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶ 20-24, 241 Wis. 2d 804, 623 N.W.2d 751. Interpretation of a statute is a question of law we review de novo. Kwiatkowski v. Capitol Indem. Corp., 157 Wis. 2d 768, 774-75, 461 N.W.2d 150 (Ct. App. 1990).

¶ 5. Wisconsin Stat. § 125.035 provides in part:

(2) A person is immune from civil liability arising out of the act of procuring alcohol beverages for or selling, dispensing or giving away alcohol beverages to another person.
(4) . . .
(b) Subsection (2) does not apply if the provider knew or should have known that the underage person was under the legal drinking age and if the alcohol beverages provided to the underage person were a substantial factor in causing injury to a 3rd party. (Emphasis added.)

Mary Anne's Immunity

¶ 6. Mary Anne argues that she is immune as a provider under Wis. Stat. § 125.035(2) because Craig was not a third party as contemplated in § 125.035(4)(b). She relies, as did the trial court, on Kwiatkowski. Relying on Kwiatkowski holds, Mary Anne argues:

1. An underage drinker who does nothing but drink (e.g., provides only to himself) is not a "third party" and thus cannot take advantage of the nonliability exception to sue those who provided to him;
2. An alcohol provider cannot be sued by the underage drinker when the underage drinker hurts himself after drinking too much; and
3. It does not matter whether the alcohol provider gave the alcohol directly to the injured underage drinker, or provided it to another person who in turn provided it to the injured underage drinker: there is no cause of action against either provider.

Mary Anne's reliance on and interpretation of Kwiat-kowski is only partially accurate.

¶ 7. Kwiatkowski, an underage drinker, and his companion, Pederson, were at a bar owned by Schmechel. Id. at 771. The bartenders — Schmechel's employees — served Kwiatkowski directly. Id. They also served Pederson, who brought drinks to Kwiatkowski. Id. At the end of the evening, Kwiatkowski and Peder-son got into a vehicle operated by Kwiatkowski and were involved in an accident. Id. Both were injured. Kwiatkowski alleged negligence per se by Pederson and Schmechel for providing alcohol to a minor, id. at 771-72, but the case was dismissed after the trial court determined the immunity exception did not apply. Id. at 774. We affirmed the trial court. Id. at 777.

¶ 8. Mary Anne draws analogies between herself and Schmechel, Gregory and Pederson, and Craig and Kwiatkowski. In Kwiatkowski, however, the question was whether the statute placed limitations on who could be plaintiff. We upheld the trial court's conclusion that the provider's immunity is lost only when the injured third party is a claimant, not when the consumer of alcohol is the claimant. Id. In Kwiatkowski, both Schmechel and Pederson provided alcohol directly to Kwiatkowski. In other words, Kwiatkowski could not be considered a third party as contemplated by Wis. Stat. § 125.035(4)(b).

¶ 9. In the present case, Mary Anne did not directly provide Craig with alcohol. For her to accurately analogize her case to Kwiatkowski, Schmechel could only have served Pederson. Schmechel, however, also served Kwiatkowski. Id. at 771. Thus, Mary Anne's third contention about Kwiatkowski, that it does not matter to whom the provider gave alcohol, is inaccurate.

¶ 10. Mary Anne's second argument about Kwiat-kowski seemingly ignores Miller v. Thomack, 204 Wis. 2d 242, 264, 555 N.W.2d 130 (Ct. App. 1996), in which we stated:

We cannot say that it is clear that the legislature intended that a person who provides alcohol to an underage person ... is immune from liability in a suit by [a] third party solely because that third party. . . illegally consumed alcohol.

Mary Anne's second contention, that an underage drinker cannot sue the provider when the drinker hurts himself, is true in the case where there is only a first party (the provider) and a second party (the drinker). See Meier v. Champ's Bar & Grill, 2001 WI 20, ¶ 24, 241 Wis. 2d 605, 623 N.W.2d 94. However, Miller says that suit is not precluded by an injured third party simply because the third party may also have been drinking. Miller, 204 Wis. 2d at 264. Thus, the Ander-sons' suit is not automatically preempted as Mary Anne claims.

¶ 11. Mary Anne also ignores the most recent case law to apply Wis. Stat. § 125.035, Meier, which points out at ¶ 24:

[T]he transactional focus of § 125.035(4)(b) is the provision of alcohol to underage persons. The principal parties to such a transaction are: (1) providers and (2) underage drinkers. When the transaction between these principals is a substantial factor in causing harm to a third party the statutory immunity is lifted and a third party may proceed against a provider. (Emphasis added; footnote omitted.)

In this case, there are two transactions. In the first transaction, Mary Anne provided the alcohol to Gregory. In the second transaction, Gregory provided the alcohol to Craig: The transactions are separated by time, location, and participants.

¶ 12. When Mary Anne purchased the vodka for Gregory, Craig was not present. Nothing indicates, and indeed neither Mary Anne nor Gregory suggests, that Craig asked for the liquor, paid for the liquor, or was present for or aware of its purchase. Nothing suggests Mary Anne knew Gregory would give the vodka to others. Mary Anne was not present when the alcohol was shared; only Gregory, Craig, and Robert were at the vacation property. Because Mary Anne provided alcohol, a substantial factor in Craig's death, to Gregory only, Craig was a third party to that transaction and Mary Anne is not immune from suit under Wis. Stat. 125.035(2).

Gregory's Immunity

¶ 13. Gregory provided alcohol directly to Craig. For that reason, Gregory is shielded under Wis. Stat. § 125.035(2), which provides immunity to those who give alcoholic beverages to another person. The Ander-sons, however, argue that Gregory was negligent in other ways such that § 125.035(2) is inapplicable. The Andersons allege that Gregory intentionally tried to get Craig drunk and that therefore immunity is lost pursuant to § 125.035(3). The Andersons also allege Gregory was negligent by failing to supervise Craig's consumption of alcohol, failing to stop serving Craig the alcohol once it was apparent he was intoxicated, failing to obtain medical assistance, and for other actions or inactions. The Andersons1 arguments are unavailing.

¶ 14. To prevail on their argument that Gregory acted contrary to Wis. Stat. § 125.035(3) and is thus stripped of immunity, the Andersons must be able to show that Gregory either lied to Craig about the alcoholic content of the drinks Gregory was providing or that Gregory forced Craig to consume the alcohol. Intent to cause intoxication is irrelevant because it is not mentioned in the statute. While Gregory may have in fact intended that Craig become intoxicated, nothing in the record supports the contention that this was achieved through deceit or force as required by the plain statutory language.

¶ 15. The Andersons argue that the best way for Gregory to accomplish his posited objective would be by "telling Craig Anderson that the beverage contained no alcohol, or misleading Craig Anderson about the amount of vodka in the drinks" Gregory served. This argument assumes speculative facts. The only evidence the Andersons direct us to is an affidavit their attorney submitted in which the attorney avers that "in a written statement attached to the police report, Gregory Bra-sure said he helped Craig Anderson from the toilet to the bed and that he poured some Sunny Delight [a nonalcoholic drink] in one of Craig Anderson's drinks without alcohol." The Andersons also claim that the police report states Gregory was mixing the drinks. The Andersons believe this evidence indicates Gregory may have lied about the alcoholic content of the drinks he served to Craig.

¶ 16. This evidence fails to support the Ander-sons' argument. At best, it indicates that Craig had at least one drink that did not contain alcohol. Nothing was pled, nor was any evidence presented, that would indicate Gregory was deceitful about the amount of alcohol in the drinks he provided.

¶ 17. There is also nothing pled or presented that would suggest Gregory forced Craig to drink the alcohol. Robert Tripp submitted an affidavit in which he stated that all three men voluntarily consumed the alcohol. The Andersons argue that Robert was not at the vacation home all night and therefore could not know what happened at other times, but this provides no support for their claim that Gregory forced Craig's consumption.

¶ 18. The Andersons' deceit and force argument is premised on mere speculation. Gregory's refusal to be deposed does nothing to change this. The Andersons have failed to make a prima facie case for deceit or force, and Gregory's supposedly intentional acts are not necessarily synonymous with deceitful or forceful ones.

¶ 19. Gregory's alleged failures to supervise Craig's consumption of vodka and to stop serving him once it was apparent he was intoxicated cannot be separated from the "transactional focus" of Wis. Stat. § 125.035. They cannot give rise to a separate cause of action because they are necessarily part of Gregory's provision of the vodka.

¶ 20. As for Gregory's other actions or inactions, the "basic principle of duty in Wisconsin is that a duty exists when a person fails to exercise reasonable care— when it is foreseeable that a person's act or omission may cause harm to someone." See Stephenson v. Universal Metrics, Inc., 2002 WI 30, ¶ 23, 251 Wis. 2d 171, 641 N.W.2d 158. Both Gregory and Craig were at least eighteen at the time — neither was a minor so neither had any heightened duty to supervise the other. Unlike Stephenson, where a man was exposed to liability for offering to drive his drunk co-worker home then failing to do so, nothing suggests Gregory took on any special duty. In short, nothing in the record suggests Gregory had affirmatively assumed a particular duty of care toward Craig.

¶ 21. In their brief, however, the Andersons argue Gregory was negligent by moving Craig's body once he was unconscious. They argue that once Gregory took the action of moving Craig, he had a duty of reasonable care. See id. Once he assumed that duty, the Andersons contend that Gregory should have called for medical assistance and was negligent by not doing so. Additionally, the coroner noted some abrasions on Craig's body and a small abrasion on his head. The Andersons argue this shows negligence by Gregory.

¶ 22. First, nothing in the record suggests that Gregory knew Craig's situation was so serious as to require medical attention. Second, the toxicology report showed Craig's blood ethanol concentration was .374% and the urine test showed a concentration of .402%. The coroner attributed death to acute alcohol intoxication, not to any of the abrasions. The Andersons fail to show how, as a matter of law, Gregory moving Craig's body was negligent or otherwise a breach of some duty when nothing suggests moving Craig's body contributed to his death.

Insurance Coverage

¶ 23. The interpretation of an insurance contract and the conclusion as to whether coverage exists under a given contract are questions of law we review independently. Ledman v. State Farm Mut. Auto. Ins. Co., 230 Wis. 2d 56, 61, 601 N.W.2d 312 (Ct. App. 1999). Assuming Gregory is not immune, the Andersons claim that Gregory should be covered under his father's insurance policy. American Family claims that two exceptions preclude coverage.

¶ 24. The relevant exceptions state:

8. Illegal Consumption of Alcohol. We will not cover bodily injury or property damage arising out of the insured's knowingly permitting or failing to take action to prevent the illegal consumption of alcohol beverages by an underage person.
10. Intentional Injury. We will not cover bodily injury or property damage caused intentionally by or at the direction of any insured even if the actual bodily injury or property damage is different than that which was expected or intended from the standpoint of any insured.

¶ 25. Exclusion 8 is sufficient to preclude coverage for Gregory. It is undisputed that Gregory knew Craig was underage and that Gregory did nothing to prevent Craig from drinking the vodka. Craig's death resulted solely from the alcohol that Gregory knowingly permitted Craig to drink. Even if we were to conclude that the Andersons' "other actions or inactions" argument had merit, coverage would still be precluded under exclusion 8. We note additionally that assuming the Andersons are correct that Gregory's intention was that Craig become inebriated, coverage would also be precluded by exclusion 10.

Summary

¶ 26. The portions of the summary judgment finding Gregory immune under Wis. Stat. § 125.035 and dismissing him and confirming the American Family policy does not cover him are affirmed. The portion of the summary judgment finding Mary Anne immune under the statute is reversed. The remainder of the judgment was not appealed.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded. No costs on appeal.

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

       The Brasures apparently told the Andersons that Mary Anne and Gregory were likely to assert their Fifth Amendment rights against self-incrimination at any deposition. We include this information solely for the purpose of explaining our unusually abbreviated factual recitation. For purposes of their summary judgment motions, both Brasures conceded the facts as alleged in the complaint were true. American Family also premised its motion on the facts as alleged in the complaint:

       Holdings (3) and (4) apply, according to the trial court, in the event that the underlying actions against Gregory and Mary Anne respectively are reinstated by further ruling of the trial court or on appeal. The Andersons did not appeal part (4); however, American Family seeks reversal of this part in its response. We will not consider American Family's challenge to part (4) because American Family failed to file a cross-appeal to preserve its rights. See Wis. Stat. § 809.10(2)(b) (a respondent who seeks modification of the judgment appealed from in the same action shall file a notice of cross-appeal).

       This is the extent to which Mary Anne's first contention about Kwiatkowski applies. See Kwiatkowski v. Capitol Indem. Corp., 157 Wis. 2d 768, 461 N.W.2d 150 (Ct. App. 1990).

       This holding is consistent with the plain language of Wis. Stat. § 125.035(4)(b). Its focus is on the alcohol provided, not consumed, as a substantial factor in causing the third party's injury.

       It is undisputed that the alcohol was at least a "substantial factor" in Craig's death.

       We do not necessarily intend to prescribe these distinctions as a rigid formula for determining when or whether separate transactions occur.

       The Andersons originally pled that Mary Anne gave the alcohol to Gregory or Craig, but later conceded that nothing supported the argument she supplied directly to Craig.

       WISCONSIN Stat. § 125.035(3) states that the immunity of § 125.035(2) does not apply if the provider of alcoholic beverages "causes their consumption by force or by representing that the beverages contain no alcohol."

       The Andersons also claim that Gregory's refusal to be deposed creates genuine issues of material fact. However, we reject this claim. See ¶ 18, infra.

       Of course, Wis. Stat. § 125.035 provides an exception to this general rule for the act of providing alcohol to others.

       The supreme court said one of the defendants in Stephenson v. Universal Metrics, Inc., 2002 WI 30, ¶ 24-25, 251 Wis. 2d 171, 641 N.W.2d 158, could be liable based on his affirmative assumption of responsibility for the co-worker, but that he was absolved of liability because of Wis. Stat. § 125.035.

       Our affirmance of Gregory's immunity should render the coverage issue moot. We nonetheless choose to address the coverage question to provide American Family with a disposition that is not contingent upon Gregory's statutory immunity.


author: SCHUDSON, J.

text:
    In re the Termination of Parental Rights to Teyon D., a Person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. Quinsanna D., Respondent-Appellant. [Case No. 02-1919.] In re the Termination of Parental Rights to Keyon D., a Person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. Quinsanna D., Respondent-Appellant. [Case No. 02-1920.]
    Court of Appeals

      Nos. 02-1919, 02-1920.

      Submitted on briefs November 5, 2002.-

      Decided November 26, 2002.

    2002 WI App 318
    (Also reported in 655 N.W.2d 752.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Carl W. Chesshir, of Milwaukee.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Thomas Binger, assistant district attorney, and E. Michael McCann, district attorney, of Milwaukee.
    Before Fine, Schudson and Curley, JJ.

       Petition to review denied 1-17-03.

   SCHUDSON, J.

¶ 1. Quinsanna D. appeals from the order for termination of her parental rights under Wis. Stat. § 48.415(6) for failure to assume parental responsibility for her twin sons, Keyon and Teyon, following a jury trial and a dispositional hearing. She argues that at her trial, where the issue was whether she had failed to establish a substantial parental relationship with her twins, the trial court erred in: (1) admitting evidence of her criminal offenses and sentences; and (2) entering a finding, based on the jury verdicts, that she had failed to assume parental responsibility for Keyon and Teyon where, she contends, the verdicts were perverse because undisputed evidence established that she had had a substantial relationship with the twins during their first two years of life.

¶ 2. Quinsanna also argues that the trial court lost competency to conduct the dispositional hearing because it adjourned the hearing for more than forty-five days following the verdicts without finding good cause for the continuance. She contends that the adjournment violated Wis. Stat. §§ 48.424(4) and 48.315C2).

¶ 3. We conclude that the court correctly exercised discretion in determining that Quinsanna's criminal offenses and sentences were relevant to whether she had failed to establish a substantial parental relationship with Keyon and Teyon. We also conclude that the verdicts were not perverse and, therefore, that the trial court correctly entered the finding that Quinsanna failed to assume parental responsibility for the twins, based on the jury verdicts. Finally, we conclude that although the trial court did not explicitly find good cause to adjourn disposition for more than forty-five days following the verdicts, the parties' agreement to do so, together with the circumstances reflected in the record, established good cause for the continuance. Accordingly, we affirm.

I. BACKGROUND

¶ 4. On October 23, 1992, Quinsanna gave birth to Keyon and Teyon. On November 1, 1994, the twins were removed from Quinsanna's care following a police raid at her residence where, in the bedroom with Quinsanna and the twins, police found marijuana, ammunition, a large amount of cash, and other drug-dealing paraphernalia. Elsewhere in the residence, which Quinsanna shared with her boyfriend, police also found cocaine and additional drug-dealing materials. Quinsanna later admitted that she was a marijuana user and that she knew her boyfriend was a drug dealer.

¶ 5. As a result of the November 1 raid, Quin-sanna was arrested and ultimately convicted of possession of marijuana, possession of cocaine, and keeping a drug house. She was placed on probation.

¶ 6. On February 20, 1995, the twins were found to be in need of protection or services and were placed outside the parental home; they have continued under juvenile court jurisdiction, living in foster care ever since.

¶ 7. On November 12, 1995, approximately one year after the raid on her residence and while she was on probation for the drug offenses, Quinsanna was arrested for altering customers' checks and stealing money from the grocery store where she worked. She admitted that she had done so to support her drug use and, on January 5, 1996, she pled guilty to theft. She was sentenced to thirty days in the House of Corrections.

¶ 8. About five months later, on June 3, 1996, Quinsanna was arrested again. She gave police a false name because she knew of a warrant for her arrest for a probation violation. She was convicted of obstructing an officer and sentenced to sixty days, concurrent with six months she received following revocation of her probation. Thus, from approximately June to December, 1996, Quinsanna was incarcerated.

¶ 9. On January 23, 2001, the State petitioned for termination of Quinsanna's parental rights to Keyon and Teyon and, in an amended petition filed seven months later, alleged that Quinsanna had failed to assume parental responsibility for them, under Wis. Stat. § 48.415(6).

¶ 10. At a pre-trial hearing, the State indicated its intention to introduce evidence of Quinsanna's criminal record — for possession of marijuana, possession of cocaine, keeping a drug house, theft, and obstructing an officer, between 1994 and 1996. The State specified that it was not seeking to introduce the mere fact and number of convictions for purposes of credibility-impeachment, see Wis. Stat. § 906.09, but rather, that it intended to offer "the substance" of her offenses and sentences as "direct evidence of [Quinsanna's] failure to assume parental responsibility." At the pre-trial hearing, the prosecutor argued:

These [criminal offenses] occurred after the birth of these children. More specifically, they occurred after the [removal] of these children [from the parental home].
One of the offenses relates specifically to the reason these children were [removed]. The mother and two other individuals were charged with drug charges .... And I certainly think the facts of that [removal] and the facts under which the mother was charged, and the conditions of the house, etc., are certainly relevant to this case.
There are two subsequent convictions ... both of which resulted in imprisonment or jail terms, for a period of 30 to 60 days .... And those also, I believe, resulted in revocation of the mother's probation which she [had] received [for the drug offenses].
The fact that she's committing new crimes, exposing herself, and receiving incarceration terms as a result of those crimes, I believe, is relevant to her failure to assume parental responsibility. She's priori-tising criminal activity over her children. She's placing herself in a circumstance where she is not only at risk to being removed from her children's lives, but was.

¶ 11. Defense counsel objected, arguing both that the evidence was irrelevant to whether Quinsanna had failed to assume parental responsibility, and that, even if relevant, the evidence was "too prejudicial" or "just too highly prejudicial" because of "a danger. . . that a jury . . . sees somebody as a convicted felon . . . and will want to punish her . . . instead of... seeing what kind of mother she was overall to these kids."

¶ 12. The trial court, agreeing that the substance of Quinsanna's convictions was not being offered "in regard to [Quinsanna's] credibility," concluded that the admissibility of the evidence was not governed by Wis. Stat. § 906.09. See Wis. Stat. § 906.09(1) (generally, impeachment by evidence of criminal conviction may be "[f]or the purpose of attacking the credibility of a witness"). The court also concluded that the evidence was not governed by Wis. Stat. § 904.04, because, the court said, it was not being offered "to establish bad’ character and acting in conformity with that bad character."

¶ 13. Instead, the trial court concluded that the evidence was governed by Wis. Stat. §§ 904.01, 904.02, and 904.03. Reasoning that the information "clearly" was relevant, the court first commented that "[t]he drug-related offense[s] establish[ ] that [Quinsanna] wasn't fulfilling her daily parental responsibilities to these children during that period of time that she was incarcerated and it establishes why she was not doing it." The court concluded that, under what it viewed as the "strongly suggestive" language of L.K. v. B.B., 113 Wis. 2d 429, 335 N.W.2d 846 (1983), and Ann M.M. v. Rob S., 176 Wis. 2d 673, 500 N.W.2d 649 (1993), "not only [is] the fact that the parent is not fulfilling. .. parental responsibility on a day-to-day basis" relevant, but "the whys of why" the parent is not doing so is germane. Further, the court explained:

I have always viewed the failure [-] to [-] assume [-] parental[-]responsibility statute to have a qualitative and quantitative component....
Did [the parent] have any relationship with this child is one analysis.
The other analysis is if [the parent has] had some relationship with the child or children!,] .. . what was the quality of that relationship? [ — w]hether it was ongoing, that's particularly pertinent.
I think in analyzing the drug-related activity... —we've got this picture of what was going on in this house with guns and scales and drug paraphernalia and cartridges and so forth. And ... all of that information is very pertinent in my opinion to the quality of the care, the quality of the relationship that was ongoing at the time that she did have day-to-day responsibility for the care of the children.
I also note that I don't know how you try this case in fairness to the State and arguably in fairness to the children[,] noting that... [the guardian ad litem] is aligned with the State[,] and frankly in fairness to the jury[,] without giving [the jury] some understanding of why and how you've become involved in the lives of these children and the lives of their family.

¶ 14. The trial court then struggled with the issue of whether the probative value of the evidence would be substantially outweighed by the danger of unfair prejudice, under Wis. Stat. § 904.03. While acknowledging that a jury could be inflamed by information of "all of this stuff about guns and drugs" and, as a result, could "just shut down at that point," the court concluded that, while certainly prejudicial, the information simply was not "unfairly prejudicial." The court explained that the evidence was "critically important" to the jury's determination of whether Quinsanna ever had a substantial parental relationship with Keyon and Teyon and, in particular, of "the quality of the relationship at the time she had day-to-day responsibility for the children."

¶ 15. The court went on to separately analyze the evidence of the non-drug offenses — theft and obstructing — under Wis. Stat. § 904.02. While noting its initial, tentative view that such evidence should be excluded, the court concluded that "when parents make decisions to engage in conduct that puts them in jeopardy of not being available to fulfill[] their responsibility to their children[,] that puts their relationship to their children at risk." That, the trial court concluded, "is relevant information for a fact-finder in determining whether they had a substantial parental relationship with a child."

¶ 16. The trial court then analyzed the theft and obstructing offenses under Wis. Stat. § 904.03, and, while commenting that it initially had expected to exclude the theft and obstructing evidence, concluded that the timing of those offenses underscored their admissibility. The court explained:

I guess what really grabbed my attention in all of this was the proximity in time[;] at least one of these offense[s],... if not both[,] occurred while she still had responsibility [to] the criminal authorities for the drug involvement.
. .. [T]hat puts a whole different spin on it.
. .. [Y]ou are a parent who should be aware that by engaging in that type of behavior you are putting your relationship with your children at significant risk....

Thus, the court allowed the State to introduce evidence of Quinsanna's criminal offenses and sentences for possession of marijuana, possession of cocaine, keeping a drug house, theft for altering checks while working as a retail cashier, and obstructing an officer for giving a false name.

¶ 17. Additional factual background will be presented together with our discussion of the additional issues in this appeal.

II. DISCUSSION

A. Admissibility of Quinsanna's Criminal History

¶ 18. Quinsanna first argues that she was "unfairly prejudiced by the trial court's decision to allow evidence in regard to the substance of her criminal convictions." She contends that admissible evidence of her criminal history should have been limited to the fact and number of criminal convictions, under Wis. Stat. § 906.09, as applied to civil cases. See Voith v. Buser, 83 Wis. 2d 540, 545, 266 N.W.2d 304 (1978). She also maintains that "evidence of the nature" of her offenses should have been excluded as improper character evidence under Wis. Stat. § 904.04(2). We disagree.

¶ 19. We review a trial court's decision to admit or exclude evidence in a termination trial under the erroneous-exercise-of-discretion standard. La Crosse County Dep't of Human Servs. v. Tara P., 2002 WI App 84, ¶ 6, 252 Wis. 2d 179, 643 N.W.2d 194, review denied, 2002 WI 48, 252 Wis. 2d 152, 644 N.W.2d 688 (Wis. Apr. 22) (No. 01-3034, 3035). We will uphold a trial court's decision to admit evidence if the court exercised discretion in accordance with accepted legal standards and the facts of record. Id. Here, we conclude that the trial court's analysis of the legal standards was correct, and its application of those standards to the facts. was reasonable.

¶ 20. While typically the admissibility of evidence of criminal history is governed by Wis. Stat. § 906.09, here the trial court correctly concluded that § 906.09 was inapplicable. The statute relates only to the use of criminal convictions for impeachment — "[f]or the purpose of attacking the credibility of a witness." Wis. Stat. § 906.09(1). In this case, however, the State was not introducing Quinsanna's convictions to impeach her credibility. Instead, as the prosecutor asserted when arguing for admission of the evidence, the drug offenses "relate[d] specifically to the reason" Keyon and Teyon were removed from Quinsanna's home, and the theft and obstructing offenses were relevant to whether Quinsanna had assumed parental responsibility for the twins:

The fact that she's committing new crimes, exposing herself, and receiving incarceration terms as a result of those crimes ... is relevant to her failure to assume parental responsibility. She's prioritizing criminal activity over her children. She's placing herself in a circumstance where she is not only at risk to being removed from her children's lives, but was.

We agree. Thus, we conclude that § 906.09 was inapplicable.

¶ 21. Moreover, for two reasons, nothing in Wis. Stat. § 904.04 precluded admission of the evidence of Quinsanna's offenses and sentences.

¶ 22. First, except for statutorily-specified exceptions inapplicable here, see Wis. Stat. § 904.04(l)(a-c), "[ejvidence of a person's character or a trait of the person's character," under Wis. Stat. § 904.04(1), "is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion[.]" (Emphasis added.) Clearly, in this case, the evidence was not introduced for that purpose. That is, the drug offenses and sentences were not introduced to prove that Quinsanna possessed drugs and kept a drug house; the theft and obstructing offenses and sentences were not introduced to prove that she was a thief or liar.

¶ 23. Instead, evidence of all the offenses and sentences was introduced to prove that she had failed to assume parental responsibility for Keyon and Teyon. That was fair. As the supreme court has explained, in a termination case a trial court "cannot ignore the circumstances of why" a parent "was not physically available" to assume parental responsibility when that unavailability is due not to illness, military service, or employment, but, rather "to incarceration from the wil[l]ful act of burglary," and where it was the parent's "second incarceration for that crime." L.K., 113 Wis. 2d at 442. Similarly, in another termination case, the supreme court commented that it could not "ignore the fact that any roadblock to establishing a [parental] relationship with [the child] caused by [the parent's] arrest, bond, and conviction was produced by [the parent's] own conduct." Ann M.M., 176 Wis. 2d at 685.

¶ 24. While Quinsanna points out that the supreme court's pronouncements in L.K. and Ann M.M. came in contexts somewhat different from those of the instant case, we deem the supreme court's reasoning no less compelling here. In those cases, courts logically considered parental responsibility for their own criminal conduct. And in L.K. and the instant case, courts logically considered parents' decisions to commit crimes notwithstanding what, at the very least, should have been their appreciation for the impact of their conduct on their relationships with their children. Accordingly, in the instant case, the trial court's reliance on L.K. and Ann M.M. was sound.

¶ 25. Second, under virtually the same analysis, the evidence was not foreclosed by Wis. Stat. § 904.04(2). After all, the statute provides that "[e]vi-dence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith." Wis. Stat. § 904.04(2) (emphasis added). Here, as explained, that was not the purpose. See also Tara E, 2002 WI App 84 at ¶¶ 17-18 (concluding that, in termination trial under Wis. Stat. § 48.415(2), other-acts analysis under Wis. Stat. § 904.04(2) is inapplicable to determination of admissibility of evidence of bad condition of mother's home and her children, and mother's "seeming indifference" to that condition, offered to prove mother would not satisfy prerequisites to children's return).

¶ 26. Further, even were we to accept Quinsanna's characterization of the evidence of her criminal history as "other-acts" evidence under Wis. Stat. § 904.04(2), the evidence still would have been admissible because the statute "does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Wis. Stat. § 904.04(2). Here, the evidence was offered for "other purposes" including proof of Quinsanna's "opportunity" to assume parental responsibility for Keyon and Teyon, her "intent" to do so, and the "absence" of any "mistake or accident" preventing her from doing so. See id.

¶ 27. Although in the trial court Quinsanna also challenged the evidence under Wis. Stat. § 904.03, she fails to do so on appeal. See Reiman Assocs., Inc. v. R/A Adver., Inc., 102 Wis. 2d 305, 306 n.1, 306 N.W.2d 292 (Ct. App. 1981) (contentions not briefed are waived). Nevertheless, we note that the trial court carefully appraised the relevance of evidence under Wis. Stat. § 904.02 and, in doing so, logically distinguished the drug offenses from the theft and obstructing offenses. We also note that the court carried out the balancing-analysis required under Wis. Stat. § 904.03 and articulated reasonable bases for the admission of the evidence of all Quinsanna's offenses and sentences.

B. Perversity of the Verdicts

¶ 28. The jury returned verdicts unanimously answering "Yes" to the questions, "Did [Quinsanna] fail to assume parental responsibility with respect to [Keyon] [Teyon]?" Quinsanna's counsel asked that the jury be polled but did not challenge the verdicts in any other way; he never argued that they were perverse. On appeal, however, Quinsanna contends that the verdicts were perverse and, therefore, that the trial court erred in entering a finding based on them. We disagree.

¶ 29. First, it is important to clarify what Quin-sanna is not arguing and, in doing so, to identify her precise position. Quinsanna is not arguing that the evidence was insufficient to prove that she failed to assume parental responsibility for Keyon and Teyon once they were removed from her home. Instead, she is contending that: (1) under Wis. Stat. § 48.415(6) and the corresponding jury instructions employed at her trial, failure to assume responsibility must be proven by evidence establishing "that the parent. . . ha[s] never had a substantial parental relationship with the child," see § 48.415(6)(a) (emphasis added); (2) undisputed evidence of her daily care for Keyon and Teyon, from their birth on October 23, 1992, to their removal from her home on November 1, 1994, established that, for more than two years, she had a "substantial parental relationship" with them, as defined by § 48.415(6)(b), see footnote 1, above; and, therefore (3) the jury could not have found that she never had a substantial parental relationship with Keyon and Teyon and, accordingly, its verdicts that she failed to assume parental- responsibility were perverse.

¶ 30. This court's review of a jury's verdict is narrow. See Morden v. Continental AG, 2000 WI 51, ¶ 38, 235 Wis. 2d 325, 611 N.W.2d 659. As the supreme court explained: "Appellate courts in Wisconsin will sustain a jury verdict if there is any credible evidence to support it. Moreover, if there is any credible evidence, under any reasonable view, that leads to an inference supporting the jury's finding, [appellate courts] will not overturn that finding." Id. (citations omitted). Further, in determining whether any credible evidence supports a jury's verdict, we will search the record for such supporting evidence and, "if the evidence gives rise to more than one reasonable inference," we will "accept the particular inference reached by the jury." Id. at ¶ 39.

¶ 31. Moreover, as we explained:

For a verdict to be perverse, there must be something to warrant a finding that considerations which were ulterior to a reasonably fair application of the jury's judgment to the evidence, under the court's instructions, controlled or materially influenced the jury. A verdict is perverse when the jury clearly refuses to follow the direction or instruction of the trial court upon a point of law, or where the verdict reflects highly emotional, inflammatory or immaterial considerations, or an obvious prejudgment with no attempt to be fair.

Becker v. State Farm Mut. Auto. Ins. Co., 141 Wis. 2d 804, 820, 416 N.W.2d 906 (Ct. App. 1987) (citations omitted). Here, even without questioning Quinsanna's contention that the trial included undisputed evidence of her "daily supervision" of Keyon and Teyon before they were removed from her home, see Wis. Stat. § 48.415(6)(b), we reject her argument for two reasons.

¶ 32. First, Wis. Stat. § 48.415(6)(b) provides that a " 'substantial parental relationship1" consists of "the acceptance and exercise of significant responsibility" for not only the "daily supervision" of a child, but also "the acceptance and exercise of significant responsibility" for, among other things, the "protection and care of the child." See id. Here, the jury reasonably could have inferred that, because Quinsanna's "daily supervision" of Keyon and Teyon included her daily exposure of them to her own drug use and drug house, she had not exercised "significant responsibility" for their "protection and care." See id.

¶ 33. Second, while challenging the admission of her criminal history in her primary appellate argument, Quinsanna does not contend that evidence of her offenses and sentences constituted "considerations which were ulterior to a reasonably fair application of the jury's judgment to the evidence, under the court's instructions." See Becker, 141 Wis. 2d at 820. Indeed, she points to no such ulterior considerations of any kind. Having concluded that evidence of her criminal history was relevant and admissible, and having been presented with nothing else that arguably could constitute an ulterior consideration, we can only conclude that the verdicts were not perverse.

C. Competency of Court to Conduct Dispositional Hearing

¶ 34. Finally, Quinsanna argues that the trial court lost competency to conduct the dispositional hearing because it adjourned the hearing for more than forty-five days following the verdicts without finding good cause for the continuance. Again, we disagree.

¶ 35. Immediately after the jury was polled and excused from the courtroom, the trial court asked the clerk to schedule a disposition date. The clerk, prosecutor, guardian ad litem, and Quinsanna's counsel acknowledged the forty-five day time limit between the fact-finding and disposition hearings, see Wis. Stat. § 48.424(4)(a), but were unable to locate a date within forty-five days when all parties could appear due, in part, to Quinsanna's counsel's trial schedule.

¶ 36. The clerk explicitly advised the parties that the dispositional date could not be scheduled outside the forty-five day limit unless all parties "agree [d] to do it." The prosecutor agreed to the continuance, and the guardian ad litem and Quinsanna's counsel "waive[d]" the forty-five day limit. The clerk then scheduled the dispositional hearing approximately one week beyond what otherwise would have been the deadline. Quin-sanna now argues that the trial court lost competency to conduct the dispositional hearing. She is incorrect.

¶ 37. "[F]ailure to comply with mandatory time limits under the Children's Code may result in the loss of the circuit court's competency to proceed." State v. April O., 2000 WI App 70, ¶ 5, 233 Wis. 2d 663, 607 N.W.2d 927. Where the facts are undisputed, "[w]hether the circuit court complied with the time limits and granted a continuance pursuant to Wis. Stat. § 48.315(2). .. presents a legal question of statutory interpretation," subject to our independent review. Id. at ¶ 6.

¶ 38. Under Wis. Stat. § 48.315(2), "[a] continuance shall be granted by the court only upon a showing of good cause in open court. . . and only for so long as is necessary, taking into account the request or consent of the district attorney or the parties and the interest of the public in the prompt disposition of cases." Where the record "contains ample evidence to support a finding of good cause" for a continuance of a termination hearing, the trial court's "incantation of statutory phrases [is] unnecessary" for this court to conclude that a continuance, beyond what otherwise would have been the statutory time limits, does not deprive the trial court of competence. See R.A.C.P. v State, 157 Wis. 2d 106, 113, 458 N.W.2d 823 (Ct. App. 1990).

¶ 39. Here, although the trial court never made an explicit finding of "good cause" for the continuance, the record "contains ample evidence to support a finding of good cause." See id. The court and the parties attempted to schedule the dispositional hearing within forty-five days but were unable to do so. They located the earliest date, just one week beyond the forty-five day limit, on which they all could appear. They all agreed to a continuance in order to hold the disposi-tional hearing on that date.

¶ 40. Further, as the State and guardian ad litem argue, not only did the parties agree to the continuance, and not only is "good cause" apparent in the record, but, factoring-in the qualification of Wis. Stat. § 48.315(l)(b), the forty-five day limit was not even exceeded. Wisconsin Stat. § 48.315(l)(b), in part, provides:

Delays, continuances and extensions. (1) The following time periods shall be excluded in computing time requirements within this chapter:
(b) Any period of delay resulting from a continuance granted at the request of or with the consent of the child and his or her counsel....

¶ 41. Here, the guardian ad litem for Keyon and Teyon consented to the continuance for the short period beyond the forty-five day limit. Thus, under Wis. Stat. § 48.315(1)(b), the period to which he consented would be excluded in computing the forty-five day deadline. See also M.G. v. La Crosse County Human Servs. Dep't, 150 Wis. 2d 407, 417, 441 N.W.2d 227 (1989) ("a restrictive interpretation of [Wis. Stat. § 48.315] is inappropriate," and "[although the express conditions of this section should be carefully construed, they must be given a reasonable reading"). Quinsanna offers no reply to the State's and guardian ad litem's argument under § 48.315(l)(b). See Charoláis Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments deemed admitted).

By the Court. — Order affirmed.

       As material to this appeal, under Wis. Stat. § 48.415(6), grounds for involuntary termination of parental rights include:
      Failure to assume parental responsibility, (a) Failure to assume parental responsibility, which shall be established by proving that the parent... of the child ha[s] never had a substantial parental relationship with the child.

      (b) In this subsection, "substantial parental relationship" means the acceptance and exercise of significant responsibility for the daily supervision, education, protection and care of the child. In evaluating whether the person has had a substantial parental relationship with the child, the court may consider . .. factors!] including, but not limited to, whether the person has ever expressed concern for or interest in the support, care or well-being of the child, whether the person has neglected or refused to provide care or support for the child ....
      (Emphasis added.) All statutory references are to the 1999-2000 version.

       WISCONSIN Stat. § 48.424(4) (a) provides, in part, that following a finding of grounds for termination and the resulting finding of "unfitness," the trial court "shall then proceed immediately to hear evidence and motions" regarding disposition, or "may delay making the disposition and set a date for a disposi-tional hearing no later than 45 days after the fact-finding hearing if... [a]ll parties to the proceeding agree."
      Wisconsin Stat. § 48.315(2) provides, in part, "A continuance shall be granted by the court only upon a showing of good cause in open court... and only for so long as is necessary, taking into account the request or consent of the district attorney or the parties and the interest of the public in the prompt disposition of cases."

       Wisconsin Stat. § 906.09, in relevant part, provides:
      Impeachment by evidence of conviction of crime .... (1) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime ... is admissible. The party cross-examining the witness is not concluded by the witness's answer.

        (2) Exclusion. Evidence of a conviction of a crime ... may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

       Wisconsin Stat. § 904.04, in relevant part, provides:
      Character evidence not admissible to prove conduct; exceptions; other crimes. (1) Character evidence generally. Evidence of a person's character or a trait of the person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:
      (a) Character of accused. Evidence of a pertinent trait of the accused's character offered by an accused, or by the prosecution to rebut the same;
      (2) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

       These statutes state:
      904.01 Definition of "relevant evidence". "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would he without the evidence.
      904.02 Relevant evidence generally admissible; irrelevant evidence inadmissible. All relevant evidence is admissible, except as otherwise provided by the constitutions of the United States and the state of Wisconsin, by statute, by these rules, or by other rules adopted by the supreme court. Evidence which is not relevant is not admissible.
      904.03 Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

       In her reply brief, Quinsanna insists that the State did rely on "the nature of [her] criminal convictions to attack her credibility." She notes that, in its brief to this court, the State argues to uphold the verdict in part because the jury "obviously did not find her testimony credible." Even if, however, the jury viewed Quinsanna as less credible because of her convictions, that would not render the evidence of her offenses and sentences, introduced for other purposes, inadmissible. Inevitably, in circumstances such as these, a jury may end up drawing certain credibility-inferences from evidence that was not introduced for impeachment. Significantly, Quinsanna did not request a limiting instruction under Wis. Stat. § 901.06.

       As the supreme court has explained, however, despite a failure to present post-verdict motions, "the appeals court has jurisdiction over a timely appeal and may in its discretion conclude that, in the interest of justice, the issues not assertable as a matter of right may nevertheless be reviewed." Hartford Ins. Co. v. Wales, 138 Wis. 2d 508, 511, 406 N.W.2d 426 (1987). Here, in the interest of justice, given the gravity of a termination of parental rights, we address the merits of Quinsanna's claim.

       "The Children's Code contains no provision for the waiver of time limits, and the only provisions for delays, continuances and extensions are set forth in § 48.315, Stats." Waukesha County v. Darlene R., 201 Wis. 2d 633, 640, 549 N.W.2d 489 (Ct. App. 1996) (emphasis added).

       And this wholly distinguishes the instant case from State v. April O., 2000 WI App 70, 233 Wis. 2d 663, 607 N.W.2d 927, on which Quinsanna relies. In April O., the trial court rescheduled the dispositional hearing in a termination case beyond the forty-five day deadline but did not do so "on the record or give any reason for rescheduling the hearing" before the time limit expired. Id. at ¶ 3. We concluded, therefore, that the trial court lost competency because it "did not properly extend the time limit by finding, before the time limit expired and in open court, that good cause existed." Id. at ¶ 11.' Here, by contrast, the continuance was granted before the time limit expired, and in open court for good cause, which was apparent in the record.