author: CURLEY, J.

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

    Court of Appeals

      No. 2004AP1435-CR.

      Submitted on briefs May 5, 2005.

      Decided July 26, 2005.

    2005 WI App 182
    (Also reported in 704 N.W.2d 336.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jeffrey W Jenson, of Law Offices of Jeffrey W. Jensen, of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Sarah K. Larson, assistant attorney general.
    Before Wedemeyer, PJ, Curley and Kessler, JJ.

       Petition to review granted 10-14-05.

       Petition to review denied 10-14-05.

   CURLEY, J.

¶ 1. Tyrone Booker appeals the judgment entered following a jury trial, convicting him of two counts of exposing a child to harmful materials and two counts of second-degree sexual assault of a child, contrary to Wis. Stat. §§ 948.11(2)(a) and 948.02(2) (2003-04). Booker first argues that his constitutional right to effective cross-examination was violated when the trial court granted the State's motion in limine seeking to prohibit testimony indicating that the vaginal swabs and underwear of S.M.R., the fourteen-year-old victim of the sexual assaults, taken the night of the incident, did not contain any of Booker's semen, but did contain the semen of other men. Next, he argues that the trial court erroneously exercised its discretion when it permitted the State, in response to Booker's cross-examination highlighting S.M.R.'s inconsistent statements, to read the entirety of S.M.R.'s initial statement given to the police, to the jury.

¶ 2. Finally, Booker argues that insufficient evidence was presented to convict him of the exposing a child to harmful materials charges. He reasons that the statute requires the State to prove that harmful material was shown to S.M.R. and her two girlfriends, and the definition of "harmful material" requires that the material be harmful to children. In order for material to be harmful to children, the material must be, according to Wis. Stat. § 948.11(l)(b)2., "patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for children," among other things. Once that condition is met, the material must also be viewed to see if it "lacks serious literary, artistic, political, scientific or educational value for children." Inasmuch as the jury never viewed the tape, and the only testimony indicating that the tape shown by Booker was "harmful material" consisted of a general description of the videotape by the girls and a police detective's account of the contents of the videotape, he argues that the State failed in its proof.

¶ 3. After reviewing the record in this case, we are satisfied that the trial court properly ruled that, under the rape shield law and the holding in State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990), the presence of semen found on the vaginal swabs and S.M.R.'s underwear was not admissible. We are also satisfied that the trial court properly exercised its discretion under the doctrine of completeness when it permitted the State to read S.M.R.'s initial statement given to the police, to the jury. However, we conclude that insufficient evidence was presented to the jury to prove the two counts of exposing a child to harmful materials and, as a result, those convictions must be reversed and the matter remanded to the trial court. The two sexual assault counts are affirmed.

I. Background.

¶ 4. According to the criminal complaint and the direct examination testimony of S.M.R., on December 17, 2001, S.M.R., then fourteen years old, was recruited by two friends to skip school. The three got on a city bus and went to an apartment where a boy named "Donta" lived. S.M.R. did not know Donta. He was the boyfriend of one of the other girls. Once at the apartment, Booker, Donta's mother's boyfriend, who lived with the family, admitted the girls to the apartment. Although Donta was not home, the girls remained in the apartment.

¶ 5. Some time later, Booker asked them if they knew that Donta had a video camera in his room and that he had taped the two girls accompanying S.M.R. when they had recently visited. The girls were surprised that Donta had a video camera, and wanted to see the tape. Booker then walked into another room and returned with a videotape entitled "Robert." Shortly thereafter, he retrieved a VCR and played the tape. S.M.R. testified that when Booker would fast-forward the video, she saw images of adult men and women, both naked and in various stages of dress, engaged in sexual acts.

¶ 6. Shortly thereafter, the phone rang several times, and after the second call, Booker told the girls they had to walk to the day care with him to retrieve a little boy because the boy had been "acting up." On the way back to the apartment, Booker threatened to spank the boy with a large stick that he picked up on the walk. The little boy was crying and the girls implored Booker not to spank him. Booker said he would not spank the child if one of the girls would dance for him. S.M.R. agreed to dance, and once in the apartment, Booker turned on some music and she began dancing. Several minutes later, Donta arrived home and the three girls and Donta went into his bedroom. After a brief passage of time, Booker came into the bedroom, saying the girls had to leave because S.M.R. had not finished dancing. S.M.R. then proceeded to dance again for Booker, and then returned to the bedroom. Booker again entered the bedroom, holding the telephone and demanding that the girls leave, stating that Donta's mother had said that they had to go. After speaking with Booker, Donta told S.M.R. that the only way that Booker would allow the girls to stay was if S.M.R. would show her "private part" to Booker. S.M.R. acquiesced and removed all her clothes except her bra, and laid down on a bed. She and Booker were the only ones in the room, as Donta and the girls had gone into the living room. Once on the bed, Booker laid down next to her and placed his thumb and mouth on her vagina.

¶ 7. Eventually, the girls left, and S.M.R. went home. S.M.R. did not report the sexual assault. Later that night, her aunt, with whom she lives, received a phone call from Donta's grandmother relating the day's events, including the sexual assault, and called the police. The police came and questioned S.M.R. and then took her to the hospital. There, swabs and other evidence, including some clothes, were taken from S.M.R. The vaginal swabs and S.M.R.'s underwear were later tested and found to contain semen, the DNA of which belonged to two unidentified men. Booker was eliminated as a possible source of the DNA.

¶ 8. After criminal charges were lodged against Booker, the State filed a motion in limine seeking to prohibit the introduction of the test results. The trial court granted the motion, and months later a jury trial was held. At the trial, S.M.R. was extensively cross-examined concerning the inconsistencies in the various statements she gave describing the events that led up to the assault. Afterwards, the State sought and received, over Booker's objection, permission to have S.M.R.'s entire initial statement to the police read to the jury under the rule of completeness.

¶ 9. With respect to the tape, during the trial, the girls were asked questions regarding the tape's contents, and a police detective, a sexual assault investigator, testified that she watched the tape the night before her testimony and described what she saw on the tape to the jury. However, the tape was never viewed by the jury. At the end of the trial, Booker's attorney requested that the jury be allowed to view the tape. The trial court refused this request.

¶ 10. The jury convicted Booker of all four counts. He was sentenced to nine years of confinement, followed by six years of extended supervision, for each count of second-degree sexual assault, to be served concurrently, and to one year of confinement, followed by a one-year period of extended supervision for each of the counts of exposing a child to harmful material, to be served concurrently to one another and consecutive to the two counts of sexual assault. This appeal follows.

II. Analysis.

A. The trial court properly exercised its discretion in denying Booker's motion to admit evidence of semen found on S.M.R.'s vaginal swabs and underwear.

¶ 11. Booker submits that his constitutional right to effective cross-examination was violated when the trial court refused to permit the introduction of evidence of the semen from other men found on S.M.R.'s vaginal swabs and on her underwear. Booker contends that, in so ruling, the trial court improperly applied both the rape shield law found in Wis. Stat. § 972.11(2) and the holding in Pulizzano, 155 Wis. 2d 633.

¶ 12. At trial, Booker's defense was that S.M.R.'s report of a sexual assault was a fabrication concocted in retribution for an argument Booker had with his girlfriend's son, Donta. Booker claims that by not revealing that she had sexual intercourse with other men, S.M.R. gave an incomplete or possibly fabricated statement concerning the assault by Booker. Thus, he argues he was entitled to present this evidence under the totality of the circumstances. We disagree.

¶ 13. Evidentiary rulings are discretionary, and therefore we review them under an erroneous exercise of discretion standard. State v. Hammer, 2000 WI 92, ¶ 43, 236 Wis. 2d 686, 613 N.W.2d 629. When eviden-tiary rulings implicate a defendant's confrontation and compulsory process rights, however, we review those rulings without deference to the circuit court. Id. For purposes of reviewing a question of constitutional fact, we adopt the circuit court's findings of fact unless clearly erroneous, but independently apply those facts to the constitutional standard. See State v. McMorris, 213 Wis. 2d 156, 165-66, 570 N.W.2d 384 (1997).

¶ 14. The right to present a defense through the testimony of favorable witnesses and the effective cross-examination of adverse witnesses is grounded in the Confrontation and Compulsory Process Clauses of the Sixth Amendment to the United States Constitution and article I, section 7 of the Wisconsin Constitution. See Pulizzano, 155 Wis. 2d at 645-46. The primary objective of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by rigorously testing it in an adversarial proceeding before a jury or trier of fact. Maryland v. Craig, 497 U.S. 836, 845 (1990). To accomplish this objective, the defendant must have the opportunity to meaningfully cross-examine witnesses. See State v. Thomas, 144 Wis. 2d 876, 893, 425 N.W.2d 641 (1988). The right to present a defense is not absolute, but rather is limited to the presentation of relevant evidence whose probative value is not substantially outweighed by its potential prejudicial effect. See Pulizzano, 155 Wis. 2d at 646. A defendant's right to present a defense may in some cases require the admission of testimony that would otherwise be excluded under applicable evidentiary rules. See id. at 648.

¶ 15. One such limitation on the admission of evidence is found in the rape shield law codified in Wis. Stat. § 972.11(2). Wisconsin's rape shield law was enacted in part to counteract outdated beliefs that a complainant's sexual past would shed light on the truthfulness of the sexual assault allegations. Michael R.B. v. State, 175 Wis. 2d 713, 727, 499 N.W.2d 641 (1993). Wisconsin Stat. § 972.11(2) provides, in relevant part:

972.11 Evidence and practice; civil rules applicable. . ..
(2) (a) In this subsection, "sexual conduct" means any conduct or behavior relating to sexual activities of the complaining witness, including but not limited to prior experience of sexual intercourse or sexual contact, use of contraceptives, living arrangement and life-style.
(b) If the defendant is accused of a crime under s. 940.225, 948.02, 948.025, 948.05, 948.06 or 948.095, any evidence concerning the complaining witness's prior sexual conduct or opinions of the witness's prior sexual conduct and reputation as to prior sexual conduct shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury, except the following, subject to s. 971.31 (11):
1. Evidence of the complaining witness's past conduct with the defendant.
2. Evidence of specific instances of sexual conduct showing the source or origin of semen, pregnancy or disease, for use in determining the degree of sexual assault or the extent of injury suffered.
3. Evidence of prior untruthful allegations of sexual assault made by the complaining witness.
(c) Notwithstanding s. 901.06, the limitation on the admission of evidence of or reference to the prior sexual conduct of the complaining witness in par. (b) applies regardless of the purpose of the admission or reference unless the admission is expressly permitted under par. (b) 1., 2. or 3.

¶ 16. The trial court ruled that the rape shield law prohibited the introduction of the semen evidence:

Now should the defendant be allowed statutorily to put in this evidence under 972.11 sub (2) sub (b) 2.[?] Statutorily the defense may not. That exception says evidence of specific instances of sexual conduct showing the source or origin of semen is admissible for use in determining the degree of sexual assault or the extent of injury suffered.
Clearly, the presence of semen is evidence of some specific instances of sexual conduct, and since there is DNA testing that shows it's someone else, it does show the source or origin of semen. But the statute doesn't end there. It has to be admissible for use in determining the degree of sexual assault or the extent of injury suffered, and it doesn't do that in this particular case. Therefore, 972.11 sub (2) sub (b) 2 is not applicable.

We agree. The statute lists three types of evidence that are exceptions to the rape shield law: (1) evidence of the complainant's past conduct with the defendant; (2) evidence of specific instances of sexual conduct used to show the source or origin of semen, pregnancy or disease, for use in determining the degree of sexual assault or the extent of injury suffered; and (3) evidence of prior untruthful allegations of sexual assault made by the complainant. Wis. Stat. § 972.11(2)(b). The evidence that Booker sought to introduce does not fall within any of the exceptions.

¶ 17. We next analyze the evidence in light of the judicial exception to the rape shield law first codified in Pulizzano. In order to balance the interests of the defendant and the complainant, our supreme court has developed a narrow test to determine when a defendant's right to present a defense should supersede the State's interest in protecting the complainant from prejudice and irrelevant inquiries. In Pulizzano, the supreme court held that evidence of a child complainant's past sexual behavior may supersede the rape shield law prohibition if it meets a five-part test. Pulizzano, 155 Wis. 2d at 651-52. To meet the Puliz-zano test, the defendant must show that the proffered evidence meets these five criteria: (1) the prior acts must have clearly occurred; (2) the prior acts must closely resemble those of the present case; (3) the prior acts must be clearly relevant to a material issue; (4) the evidence must be necessary to the defendant's case; and (5) the probative value of the evidence must outweigh its prejudicial effect. Id. at 651. If the five prongs are met, the court must then balance the parties' interests to determine if the evidence is admissible. Id. at 653-55.

¶ 18. The trial court, in a thoughtful decision, went through the five-part Pulizzano test and concluded that the five factors were not present here:

Now when I apply the Pulizzano test to the evidence in this case and I look at the prior acts, the prior acts clearly occurred. The presence of semen in the trace evidence shows that there was some prior sexual contact from someone who used his penis with respect to the child. So clearly the prior acts occurred.
Second, the prior acts are clearly relevant to a material issue to this extent, the child having experienced sexual contact in the past would give the child some knowledge regarding sexual activity that other children may not have.
Is the evidence necessary to the defendant's case? The defense I know believes it is. I'm not sure that it is, but I'm willing to concede that the defense believes it's necessary to their case in terms of alternate source of knowledge.
Fifth, the probative value must outweigh the prejudicial effect.
And of course the second test is the prior acts closely resemble the allegations here.
I believe that the defense fails with respect to the second factor and the fifth factor. The second factor is do the prior acts closely resemble the allegations here? They do not. Clearly, the prior sexual contact with this child involved penile contact. The allegations here are mouth to vagina, finger to vagina. There is no allegation of penis to vagina. The acts in the prior case in no manner, shape, or form, come close to resembling what occurred allegedly with respect to Mr. Booker's case.

We agree with the trial court and adopt its analysis. Booker has failed to satisfy all five of the Pulizzano factors. The prior acts do not closely resemble the allegations in this case. Here, S.M.R. claimed Booker sexually assaulted her by touching her — she never claimed that Booker had sexual intercourse with her. Whether S.M.R. engaged in sexual intercourse with other men does not impact her complaint that Booker sexually assaulted her. His claim that S.M.R. is lying and conspiring with Donta to harm Booker is pure speculation. The girls, Donta and Booker's girlfriend, all testified that the girls were at the apartment. The three girls and Donta all testified consistently about the events that led to the assault. S.M.R. discussed the assault while still at the apartment and never reported the assault until her aunt was notified. There is little, if any, evidence supporting Booker's conspiracy theory. While it is clear that Donta and his mother's boyfriend had a strained relationship, there is no evidence to suggest that Donta and the three girls conjured up the sexual assault to harm Booker. Thus, because there was no hard evidence of improper motive for the accusation, the semen evidence was rightfully ruled inadmissible.

B. The trial court properly exercised its discretion in permitting the introduction of S.M.R.'s initial statement to the police.

¶ 19. Booker argues that the trial court's decision, allowing S.M.R.'s entire statement, taken shortly after the police were contacted, to be read to the jury, "left the jury with the false impression that the statement to police was not inconsistent on any major point," when she "left out of her statement to police the fact that she had sexual intercourse with a male other than Booker."

¶ 20. We first note that Booker argues a fact not in evidence. While it would appear, given the scientific evidence, that S.M.R. had had sexual intercourse, nothing in the record supports Booker's presumption that this act or these acts occurred contemporaneously with or after the assault in question. No scientific evidence was presented discussing the length of time that sperm can be observed in a vaginal swab or in underwear. It is entirely possible that any sexual conduct that S.M.R. may have had predated the sexual contact she experienced with Booker. Thus, Booker's argument that S.M.R. must have left something out of her statement is meritless. Booker is merely speculating that the sexual intercourse, if indeed that is what took place, occurred contemporaneously with or after the assault.

¶ 21. Moreover, the trial court's ruling, which allowed the State to read S.M.R.'s entire first statement given to the police, to the jury, following Booker's attorney's cross-examination of her on the inconsistencies in her later statements, was a proper exercise of discretion. In State v. Eugenio, 210 Wis. 2d 347, 565 N.W.2d 798 (Ct. App. 1997), this court approved a similar discretionary determination.

¶ 22. In that case, Eugenio, also charged with sexual assault of a child, complained that the trial court improperly applied the "doctrine of completeness." "This doctrine enables an opposing party to introduce a whole document or an out-of-court statement or recording when the other party offers just an excerpt. The rule is premised on a concern that part of a statement may not give the factfinder the 'total picture.'" Id. at 360 (citations omitted); see Wis. Stat. § 901.07.

¶ 23. After a cross-examination of the victim in Eugenio, during which Eugenio focused on the inconsistencies between her testimony and her earlier out-of-court statements, the State moved to have its other witnesses testify regarding the consistencies in the victim's previous interviews and her testimony. Id. at 360-61. The trial court, citing the "doctrine of completeness," granted the State's request. Eugenio claimed on appeal that" 'simply using a portion of the victim's prior statements to demonstrate an inconsistency does not open up the remainder of her out-of-court statement for admission into evidence.'" Id. at 361. Further, he cited another case that warned that the doctrine should not create a "Trojan Horse" that opens the trial to all the remaining out-of-court statements. Id. at 361-62.

¶ 24. Noting that the additional information does not come in automatically, and is admissible only when the party seeking its admission shows that the whole out-of-court statement is necessary to give the fact-finder the full picture of what happened, this court found that introduction was a proper exercise of discretion and observed that the "Trojan Horse" warning retained its vitality in other settings. See id. at 362.

¶ 25. Here, as in Eugenio, the defense essentially argued that the victim "engaged in a systematic pattern of lying about the events." Id. at 363 (footnote omitted). This is a "sufficient reason" to permit the State to introduce other portions of the victim's previous statements to rebut that theory. See id. Thus, we are satisfied that the underpinnings for the doctrine of completeness were established and the trial court properly exercised its discretion in permitting the State to introduce the evidence.

C. Insufficient evidence was submitted to permit the jury to evaluate the video to determine whether it was harmful to children.

¶ 26. Booker argues that the evidence adduced at his trial was insufficient, as a matter of law, to prove that the videotape entitled "Robert" was harmful to children. Booker submits that "harmful material," as defined in Wis. Stat. § 948.11(l)(ar), must be "harmful to children," and material is not harmful to children unless, among other things, it "[i]s patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for children." Consequently Booker argues that: "[Wjhether the material is 'harmful' requires the application of a community standard which necessarily implicates the sensibilities of the jury who are, if nothing else, arbiters of community values (together they are the 'average persons' of the community)." Booker goes on to argue:

... [W]hether an act, such as a sex act, has any artistic value depends entirely upon the context in which it is presented — that is, the statute requires that the material be "taken as a whole." . .. Where, as here, the entire context is not given to the jury and, rather, isolated images are described, it is impossible to conclude that the tape has no artistic value.

¶ 27. The State maintains that the jury could convict Booker on the state of this record because sufficient circumstantial evidence existed to permit the jury to conclude that "the video appealed to the prurient interest of children, was patently offensive with respect to what was suitable for children of any age, and lacked serious artistic or educational value for children when taken as a whole." Additionally, the State cites State v. Trochinski, 2002 WI 56, 253 Wis. 2d 38, 644 N.W.2d 891, as support for its position. We are not persuaded by the State's arguments.

¶ 28. A well-known standard explains:

[I]n reviewing the sufficiency of the evidence to support a conviction, an appellate court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the [Sítate and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it.

State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990) (citations omitted).

¶ 29. This case presents an issue unlike ordinary challenges to the sufficiency of evidence. Here, the question revolves around whether sufficient evidence was introduced to permit any reasonable jury to find that the video viewed by the girls fell within the ambit of Wis. Stat. § 948.11, which provides, in pertinent part:

Exposing a child to harmful material or harmful descriptions or narrations. (1) Definitions. In this section:
(ag) "Harmful description or narrative account" means any explicit and detailed description or narrative account of sexual excitement, sexually explicit conduct, sado- masochistic abuse, physical torture or brutality that, taken as a whole, is harmful to children.
(ar) "Harmful material" means:
1. Any ... motion picture film ... that depicts nudity, sexually explicit conduct, sadomasochistic abuse, physical torture or brutality and that is harmful to children ...
(b) "Harmful to children" means that quality of any description, narrative account or representation, in whatever form, of nudity, sexually explicit conduct... 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.

(Emphasis added.)

¶ 30. The history behind the statute and its wording can be found in State v. Kevin L.C., 216 Wis. 2d 166, 576 N.W.2d 62 (Ct. App. 1997). In Kevin L.C., this court explained:

A law which prohibits a person from exhibiting to children materials determined to be obscene to children, though not obscene to adults is called a "variable obscenity statute." A state may constitutionally enact such a statute. [The Wisconsin Legislature created a variable obscenity statute when it passed Wis. Stat. § 948.11.] The Wisconsin Supreme Court has held that § 948.11, Stats., is not unconstitutionally overbroad. In [State v.] Thiel, [183 Wis. 2d 505, 515 N.W.2d 347 (1994),] the court concluded that the legislature had properly adopted the test in Miller v. California, 413 U.S. 15 (1973), to determine what materials are harmful to minors without unduly burdening the First Amendment rights of adults to view, sell or examine materials society does not consider obscene for them.

216 Wis. 2d at 185 (citations omitted).

¶ 31. In Thiel, finding Wis. Stat. § 948.11 constitutional, our supreme court examined the tension between the guaranteed rights protected by the First Amendment and laws prohibiting the display of material unsuitable for children, which were designed to protect children and preserve the rights of parents to supervise the development of their children. See 183 Wis. 2d at 524. The supreme court opined:

In his attack on sec. 948.11, Stats., Thiel joins the ongoing debate which has involved other variable obscenity statutes: how to resolve the competing social values of safeguarding" 'the physical and psychological well-being of a minor'" without unduly burdening the individual first amendment rights of adults in a " 'real and substantial fashion.'"

Thiel, 183 Wis. 2d at 524 (footnotes omitted). Thus, the supreme court found that Wis. Stat. § 948.11 was properly drafted with these ideals in mind.

¶ 32. Here, as noted, the jury did not view the video. The only testimony concerning the contents of the video entitled "Robert," besides the descriptions given by the girls, was that of a police detective. She did not testify as an expert on prevailing community standards and the record does not suggest that she was qualified to do so. Thus, the question comes down to whether any reasonable jury, having never viewed the video, can analyze the tape under the statute's requirements and convict an accused on the basis of this record. We think not.

¶ 33. The jury heard evidence concerning the video from four witnesses — the three juveniles who viewed the tape, and a police detective, assigned to sexual assault cases, who viewed the entire tape for the first time the night before she testified. The prosecution asked S.M.R. to state what she saw, and she described several different scenes with different actors and actresses engaged in sex acts.

¶ 34. Sabrina B.'s testimony concerning the video related that older men and younger women were engaged in the act of fellatio. Deana's testimony regarding the video was even more brief:

Q. What did it show?
A. It was a porno video.
Q. How much of it did you watch?

A. Like five minutes of it.

Thus, it is clear that the tape depicted nudity and sexually explicit conduct. What remains unanswered, however, is whether the tape was "patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for children." Even assuming that sufficient circumstantial evidence exists to find that the tape was patently offensive to prevailing standards in the adult community, taken as a whole, with respect to what is suitable for children, we are left to wonder whether the tape lacked any literary, artistic, political, scientific or educational value. Indeed, the detective was competent to testify only to what actions took place on the video. Furthermore, no expert witness was called to assist the jury concerning the prevailing standards in Wisconsin in the adult community over what is appropriate material for viewing by children, or whether the tape fell outside the statute because it contained serious artistic, political, scientific or educational value for children. The only testimony presented to the jury was a description of intermittent sex acts. Had the statute required only a finding that the tape contained offensive sexually explicit conduct, then perhaps the evidence would have been sufficient. However, given the wording of the statute and its serious interplay with First Amendment rights, we conclude that the jury was unable to analyze the tape under the required tests set forth in the statute, and thus, insufficient evidence was presented to convict Booker on those charges.

¶ 35. Finally, we conclude the State's reliance on Trochinski is misplaced. Trochinski attempted to withdraw his no contest plea to one count of exposing a minor to harmful materials based upon his allegation that he did not understand the meaning of "harmful to children" found in Wis. Stat. § 948.11(2). See Trochinski, 253 Wis. 2d 38, ¶ 1. The opinion contains the supreme court's assessment of the material after the court examined it. In explaining why the dissent was wrong in its contentions, the majority wrote.

We further disagree with the dissent's conclusion that the nude photographs are not "harmful material" and therefore do not supply a factual basis for the offense charged. Dissent at ¶ 62. The dissent concludes that the photos of the defendant standing naked in front of a curtain, displaying a non-erect penis[,] do not satisfy the three-part variable obscenity test in Wis. Stat. § 948.11(l)(b). By applying contemporary community standards, we conclude that the nude photos appeal to the prurient interest of children, see § 948.11(l)(b)l., and are patently offensive with respect to what is suitable for children, see § 948.11(l)(b)2. Further, we conclude that the nude photos "lack[] serious literary, artistic, political, scientific or educational value for children, when taken as a whole." See § 948.11(l)(b)3. A reasonable minor of like age of [the victim], seventeen, would not find literary, artistic, political, scientific, or educational value in the photos. See State v. Thiel, 183 Wis. 2d 505, 536, 515 N.W.2d 847 (1994). We, therefore, conclude, as the circuit court did impliedly, that the nude photographs are harmful material, and that there was a sufficient basis to support Trochinski's plea.

Trochinski, 253 Wis. 2d 38, ¶ 32.

¶ 36. While the supreme court elected to apply the three-part variable obscenity test to the photos and concluded that the trial court impliedly found the photos to be harmful material, the court did so after, presumably, viewing the photos. The fact that the supreme court found that naked pictures shown to a seventeen-year-old met the three-part variable obscenity test does not lead to the conclusion that all nudity or sexually explicit conduct shown to children less than seventeen years of age meets the standard. The statute requires material to be individually analyzed under the three-part test. Here, the jury was left to speculate how the actions were portrayed in their entirety and in what context they were shown.

¶ 37. Moreover, in Trochinski, the supreme court was primarily concerned with the legal requirements needed to withdraw a plea of no contest. Less information is required to validate a factual basis for a plea. "[A] judge may establish the factual basis as he or she sees fit, as long as the judge guarantees that the defendant is aware of the elements of the crime, and the defendant's conduct meets those elements." State v. Thomas, 2000 WI 13, ¶ 22, 232 Wis. 2d 714, 605 N.W.2d 836. In evaluating the material in the context of a request to withdraw a plea, the supreme court was not establishing the amount of evidence needed for a conviction in a trial setting.

¶ 38. While we are not so naive as to believe the tape was beneficial to the girls, given the constitutional rights in play and the explicit wording of the statute, we cannot conclude that a reasonable jury could make the finding it did on the state of this record.

¶ 39. Thus, we are satisfied that in order to determine whether the material is harmful to children, the factfinder should ordinarily evaluate the content of the material and determine first-hand whether it is patently offensive, given the prevailing standards in the adult community, as a whole, with respect to what is suitable for children. Next, the jury must evaluate the material to see, when taken as a whole, whether it "[Hacks serious literary, artistic, political, scientific or educational value for children" when taken as a whole, given the victim's age. Because we conclude that insufficient evidence was presented to the jury to prove the two counts of exposing a child to harmful materials, the trial court's judgment is reversed and the matter is remanded. The two sexual assault counts are affirmed.

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

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

       Booker was originally charged with one count of second-degree sexual assault. After Booker pled "not guilty," the State amended the information to include another count of second-degree sexual assault and two counts of exposing a child to harmful material.


source: Caselaw Access Project

author: PETERSON, J.

license: Public Domain

text:
    Patrick Fur Farm, Inc., Plaintiff-Appellant, v. United Vaccines, Inc. and Zurich American Insurance Company, Defendants-Respondents.
    Court of Appeals

      No. 2004AP2851.

      Submitted on briefs April 4, 2005.

      Decided July 26, 2005.

    2005 WI App 190
    (Also reported in 703 N.W.2d 707.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Timothy S. Knurr and Chris G. Halverson of Schoone, Leuck, Kelley, Pitts & Knurr, S.C. of Racine.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Robert L. McCollum, Michael D. Miller, Timothy J. Fetterly, and Cheryl Hood Langel oí McCollum, Crowley, Moschet & Miller, Ltd. of Minneapolis, MN.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition for review denied 10-14-05.

   PETERSON, J.

¶ 1. Patrick Fur Farm, Inc., appeals a summary judgment dismissing its claims against United Vaccines, Inc., and its insurer, Zurich American Insurance Company. Patrick argues the circuit court erred by concluding its state law claims were preempted by federal law. We disagree and affirm the judgment.

BACKGROUND

¶ 2. Patrick operates a large mink ranch in Rib Lake. In 1998, Patrick purchased BIOCOM-DR a vaccine for its mink herd, from United Vaccines through its agent, Roger Brady. Patrick claims it purchased the vaccine based on Brady's representations that it was 95-98% effective against distemper.

¶ 3. United Vaccines is federally licensed to sell BIOCOM-DR BIOCOM-DP is a four-in-one vaccine, meaning it protects against four diseases with one inoculation. The vaccine is sold in two parts, a liquid, BIOCOM-R which protects against enteritis, botulism, and pseudomas; and a solid, Distemink, which protects against distemper. The vaccine is activated by dissolving the solid portion into the liquid. Patrick claims that in the 1998 batch of vaccine it received, the liquid portion deactivated the solid portion, rendering the distemper vaccine ineffective.

¶ 4. In October 1998, after vaccinating its mink herd with BIOCOM-DR Patrick had a distemper outbreak that infected eighty percent of its herd and eventually killed about three percent. In the spring of 1999, the herd had an outbreak of toxoplasmosis, which Patrick also attributes to the failure of the vaccine. The toxoplasmosis outbreak killed over 10,000 kits. Patrick claims the vaccine's failure has produced additional damage, such as a reduced reproduction rate in the herd.

¶ 5. In March 2003, Patrick commenced this action. It alleged claims of intentional misrepresentation, strict responsibility misrepresentation, negligent misrepresentation, fraudulent misrepresentation and breach of express warranty based on Brady's claims that the vaccine was 95% effective. Patrick sought compensation for all damage caused by the distemper outbreak in its mink herd.

¶ 6. United Vaccines moved for summary judgment on all claims. The circuit court granted the motion on three bases. First, it concluded that all of Patrick's claims were preempted by federal law. Second, it concluded that Patrick's tort claims were barred by the economic loss doctrine. Finally, it concluded Patrick failed to produce sufficient evidence of reliance.

STANDARD OF REVIEW

¶ 7. We review a summary judgment independently, using the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). Summary judgment 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.

DISCUSSION

¶ 8. Patrick argues that the circuit court erred by concluding that federal law preempts its state law claims. "A fundamental principle of the Constitution is that Congress has the power to preempt state law." Crosby v. National Foreign Trade Council, 530 U.S. 363, 372 (2000) (citation omitted). We begin with the presumption that "Congress does not intend to supplant state law." New York State Conf. of Blue Cross v. Travelers Ins. Co., 514 U.S. 645, 654 (1995). However, a federal "agency may determine that its authority is exclusive and preempt[] any state efforts to regulate in the forbidden area." City of New York v. Federal Commun. Comm'n, 486 U.S. 57, 64 (1988).

¶ 9. The Viruses, Serums, Toxins, Antitoxins and Analogous Products Act, 21 U.S.C. §§ 151-159, prohibits the preparation, sale, barter or exchange of an animal vaccine that is "worthless, contaminated, dangerous, or harmful... ." See 21 U.S.C. § 151 (1999). The Act also delegates authority to regulate animal vaccines such as BIOCOM-DE Regulatory authority of this vaccine ultimately rests with a federal agency, the Animal and Plant Health Inspection Service.

¶ 10. Under its authority, the agency has promulgated an extensive regulatory scheme governing animal vaccines. See 9 C.F.R. §§ 101-23 (2005). It has also expressed its intent to preempt state law. "States are not free to impose requirements which are different from, or in addition to, those imposed by [the United States Department of Agriculture] regarding the safety, efficacy, potency, or purity of a product." 57 Fed. Reg. 38758, 38759 (Aug. 27, 1992). More specifically, "where safety, efficacy, purity, and potency of biological products are concerned, it is the agency's intent to occupy the field." Id. at 38758-59.

¶ 11. Based on the agency's express statement of preemptive intent, United Vaccines contends, if Patrick's claims involve the safety, efficacy, potency or purity of BIOCOM-DP and seek to impose additional or different requirements, those claims are preempted. United Vaccines cites a number of cases that adopted this methodology, including Cooper v. United Vaccines, Inc., 117 F. Supp. 2d 864 (E.D. Wis. 2000) and its predecessor, Lynnbrook Farms v. Smithkline Beecham Corp., 79 F.3d 620 (7th Cir. 1996).

¶ 12. Patrick, on the other hand, contends our preemption analysis turns on whether Brady's representation is substantially similar to BIOCOM-DP's federally approved label. It urges us to adopt this reasoning from Behrens v. United Vaccines, Inc., 189 F. Supp. 2d 945 (D. Minn. 2002). Like Patrick, the Behrenses brought misrepresentation and breach of warranty claims based on a salesperson's claims that BIOCOM-DP was 95% effective. The court concluded that claims based on representations made on the vaccine's federally approved label were preempted. Id. at 962. However, any off-label representation, such as a salesperson's claims of vaccine efficacy, was only preempted if the representation was substantially similar to the federally approved label. Because the salesperson's representations were not substantially similar to the label, claims based on those representations were not preempted. Id. at 965.

¶ 13. The Behrens court criticized the Cooper court for not addressing Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992). Cipollone held that claims premised on express warranties were not within the scope of the preemption clause of the Federal Cigarette Labeling and Advertising Act of 1965 or its successor, the Public Health Cigarette Smoking Act of 1969, and thus express warranty claims survived preemption. Id. at 525-27. In doing so, the Cipollone court relied on the precise and narrow express intent of Congress in passing the acts, which differ in scope from those of the Act here. See id. at 517-18. As the United States Supreme Court reiterated most recently in Bates v. Dow Agrosciences LLC, 125 S. Ct. 1788, 1800 (2005), we cannot ignore "obvious textual differences between. . . two pre-emption clauses." Here, in light of the agency's clear statement of preemptive intent and the scope of that preemption, Behrens's reasoning is unpersuasive.

¶ 14. The differences between preemption clauses also render Patrick's reliance on another case, Gorton v. American Cyanamid Co., 194 Wis. 2d 203, 533 N.W.2d 746 (1995), misplaced. Gorton claimed negligent misrepresentation based on a herbicide manufacturer's false advertisement claims that its product was "safe and effective" and "without harm to subsequent crops." Id. at 222. Our supreme court held the claim was not preempted by the Federal Insecticide, Fungicide, and Rodentieide Act (FIFRA). The court concluded that by enacting FIFRA, Congress had not "intended to occupy the entire field of pesticide regulation," because there was no statutory language or legislative intent to support that intention. Id. at 218.

¶ 15. Here, however, the federal agency has made an express statement regarding its intended scope of preemption: "where safety, efficacy, purity, and potency of biological products are concerned, it is the agency's intent to occupy the field." 57 Fed. Reg. at 38758-59. Thus, we decline Patrick's invitation to adopt the reasoning of Behrens. Instead, we conclude that whether Patrick's claims are preempted by federal law turns on whether those claims involve the safety, efficacy, potency or purity of BIOCOM-DP Because all of Patrick's claims stem from representations regarding the vaccine's efficacy, the claims are preempted.

By the Court. — Judgment affirmed.

       Patrick also appeals the circuit court's alternative bases for granting summary judgment, including that Patrick's claims were barred by the economic loss doctrine and were not supported by sufficient evidence of reliance. However, because we decide cases on the narrowest possible grounds, see State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989), we only address Patrick's arguments regarding federal preemption.

       Patrick also invokes the presumption against preemption to support its arguments that its claims are not preempted. However, the presumption "can be overcome by an agency's clear declaration of intent to preempt state law." Lynnbrook Farms v. Smithkline Beecham Corp., 79 F.3d 620, 627 (7th Cir. 1996). Here, the agency's statement of preemptive intent rebuts the presumption.

       Patrick also cites Kuiper v. American Cyanamid Co., 131 F.3d 656 (7th Cir. 1997). Because Kuiper involved the same herbicide and federal law as that considered in Gorton v. American Cyanamid Co., 194 Wis. 2d 203, 533 N.W.2d 746 (1995), we similarly reject its reasoning.


text:
    Bronsteatter & Sons, Inc., Plaintiff-Appellant, v. American Growers Insurance Company, Mt. Morris Insurance Company, Vine Vest, LLC, Durkee Insurance Agency, Inc., and United States Liability Insurance Group, Defendants-Respondents.
    Court of Appeals

      No. 2005AP115.

      Submitted on briefs June 6, 2005.

      Decided July 26, 2005.

    2005 WI App 192
    (Also reported in 703 N.W.2d 757.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of co-counsel, Diana R. Schira of Schira Law Firm, S.C. of Mosinee; and Mark C. Kareken of Merrill.
    On behalf of the defendant-respondent, Mt. Morris Insurance Company, the cause was submitted on the brief of Todd Joseph Koback and Thomas Terwilliger of Terwilliger, Wakeen, Piehler & Conway, S.C. of Wausau.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 11-11-05.

   PETERSON, J.

¶ 1. Bronsteatter & Sons, Inc., appeals a summary judgment denying coverage under a Mt. Morris Insurance Company farmowner's insurance policy for a loss it sustained to its 2002 corn crop. Bronsteatter argues the circuit court erred by concluding its claims were barred by the one-year statute of limitations of Wis. Stat. § 631.83(1). We disagree and affirm the judgment.

BACKGROUND

¶ 2. Bronsteatter is a corporation in the business of cash crop farming. In 2002, it purchased a Mt. Morris farmowner's insurance policy through Durkee Insur-anee Agency, Inc. The policy covered, in certain instances, property damage caused by vandalism.

¶ 3. Sometime on May 17 or 18, 2002, Bronsteatter's twelve-row corn planter was vandalized, damaging the mechanism that regulated the flow of fertilizer onto two of the rows. As a result, seeds planted in those rows were overfertilized, which killed the germinating seeds. Bronsteatter was unaware of the vandalism and planted over 1,000 acres of corn with the damaged planter. Bronsteatter eventually realized that two rows of every twelve planted were not growing, inspected the planter and discovered the vandalism. On June 3, 2002, Bronsteatter reported the damage to the Marathon County Sheriffs Department and to Mt. Morris.

¶ 4. Bronsteatter commenced this action on June 4, 2003. As relevant to this appeal, it sought a declaration of coverage under the Mt. Morris policy and claimed Mt. Morris breached the insurance contract by not paying for Bronsteatter's crop damage.

¶ 5. The parties filed cross-motions for summary judgment. The circuit court granted summary judgment in favor of Mt. Morris on the basis of Wis. Stat. § 631.83(l)(a), which requires an action on this type of policy "be commenced within 12 months after the inception of the loss." The court reasoned that "the inception of the loss" was "the act of planting seeds with the vandalized planter." Because the planting occurred prior to June 3, 2002, Bronsteatter's complaint was untimely filed. Therefore, the court granted Mt. Morris summary judgment.

STANDARD OF REVIEW

¶ 6. We review a summary judgment independently, using the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). Summary judgment 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. The interpretation of a statute and its application to undisputed facts are questions of law that we review independently. Garcia v. Mazda Motor of Am., 2004 WI 93, ¶ 7, 273 Wis. 2d 612, 682 N.W.2d 365.

DISCUSSION

¶ 7. The parties agree that the Mt. Morris policy is governed by Wis. Stat. § 631.83(l)(a): "An action on a fire insurance policy must be commenced within 12 months after the inception of the loss." However, the parties disagree as to what date constitutes the inception of the loss. Bronsteatter argues that the inception of its loss did not occur until it completed its corn harvest in December 2002, making its June 4, 2003, complaint timely. Mt. Morris counters that the inception of the loss was the vandalism, which happened in May 2002, prior to the June 3, 2002, police report. The circuit court took a third approach, fixing the inception of the loss at the time of planting.

¶ 8. This is not the first time we have been asked to interpret the phrase "inception of the loss" of Wis. Stat. § 631.83(l)(a). In Borgen v. Economy Preferred Ins. Co., 176 Wis. 2d 498, 500 N.W.2d 419 (Ct. App. 1993), the Borgens' home was damaged by an August 1989 hailstorm. However, the Borgens did not discover the damage until October 1990. The circuit court dismissed the Borgens' June 1991 complaint as untimely under § 631.83(1)(a). On appeal, the Borgens argued that the "inception of the loss" was the date they discovered the damage, not the date of the storm. We held that" 'inception of the loss' clearly and unambiguously means the date on which the loss occurs." Id. at 504-05. We explained, "The key word in sec. 631.83(l)(a), Stats., is not 'loss,' as the Borgens argue, but 'inception.' 'Inception' means: 'beginning; start; commencement.'" Id. at 505 (citation omitted). Because the Borgens' loss began on the date of the storm, not the date they discovered the damage, their complaint was untimely.

¶ 9. Like the Borgens' arguments, Bronsteatter's arguments on appeal focus on the term "loss." It asserts that "loss" means "damage" and thus the relevant date for determining compliance with Wis. Stat. § 631.83(l)(a) is the date of damage. Because here the damage is crop yield reduction, it contends the date of damage was the harvest's completion in December 2002, which revealed a reduced crop yield.

¶ 10. The problem with Bronsteatter's argument is that it ignores the word "inception." While the damage or loss Bronsteatter seeks recovery for is reduced crop yield, we agree with the circuit court that the inception of that loss was the moment the overfertilized seeds were planted with the vandalized corn planter. That Bronsteatter did not know what the actual yield from the field would be, and therefore could not exactly value that loss, does not mean that it was not damaged at the time of planting.

¶ 11. Bronsteatter also argues there is a distinction between the damage date — the date relevant under Wis. Stat. § 631.83(l)(a) — and the date of the insured-against peril or "event." Often, the two dates are simultaneous, as in Borgen, where the hail damage occurred at the time of the event, the hailstorm. Here, however, Bronsteatter contends, its damage (reduced corn yield) occurred long after the event (vandalism), and the twelve-month time limit under the statute must be computed from the later damage date.

¶ 12. Bronsteatter offers no Wisconsin precedent to support the distinction between the damage date and the event date. Even if the distinction were legally relevant, Bronsteatter's argument hinges on the same premise we rejected above: that it suffered no damage or loss until the completion of the crop harvest. We agree with the circuit court's analysis:

While the full extent of [Bronsteatter]'s loss may not have been known until the crop was harvested, that loss did not begin at harvest time. It began when the seeds were planted with the vandalized planter, such that certain rows were overfertilized and prevented from growing properly.

Thus, even accepting Bronsteatter's contention that the event and damage did not occur simultaneously, the date of the inception of the loss is not the date of harvest, but rather the date of planting. Bronsteatter planted the corn prior to June 3, 2002, when Bronste-atter noticed the missing rows of corn and reported the damage to police, making its June 4, 2003, complaint untimely.

By the Court. — Judgment affirmed.

       Bronsteatter also appeals a judgment denying coverage under an American Growers Insurance Company crop hail insurance policy. However, American Growers is in liquidation and we granted its motion to stay in a March 30, 2005, order. Therefore, that portion of the appeal is not before us.

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

       Bronsteatter's brief-in-chief states that 1,100 acres were planted, citing to the police report contained in the record. However, the police report states that 1,300 acres were damaged.

       The court granted summary judgment in favor of American Growers for the same reason.

       The term "fire insurance," as it is used in the statute, includes all types of property damage indemnity insurance. Borgen v. Economy Preferred Ins. Co., 176 Wis. 2d 498, 504-05, 500 N.W.2d 419 (Ct. App. 1993).

       Bronsteatter seeks support for this distinction in an unpublished federal case, Vogel v. Cincinnati Ins. Co., No. CIVA.95-C-452, 1997 WL 33284143 (E.D. Wis. Aug. 14, 1997). We find no persuasive value in this case, which turned largely on the specific homeowners' policy language regarding dry rot and hidden decay, and decline to adopt its reasoning.