author: LUNDSTEN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. William Koller, Defendant-Appellant.

    Court of Appeals

      No. 99-3084-CR.

      Oral argument July 26, 2001.

    Decided September 20, 2001.

    2001 WI App 253
    (Also reported in 635 N.W.2d 838.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of and oral argument by Peter M. Koneazny, assistant state public defender of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Daniel J. O'Brien, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by Daniel J. O'Brien.

    Before Dykman, Roggensack and Lundsten, JJ.

       Petition to review denied 11-27-01.

   LUNDSTEN, J.

¶ 1. William Roller appeals from'judgments convicting him of five counts of first-degree sexual assault of a child and orders denying his postconviction motions for a new trial. He argues that he was denied effective assistance of counsel at three points: (1) when his trial counsel failed to properly question prospective jurors during voir dire; (2) when his trial counsel failed to seek dismissal of multiplici-tous charges; and (3) when his trial counsel failed to ask for acquittal and to comment on the State's burden of proof during closing arguments. We disagree and conclude that, in each instance, Roller has failed to show that he was prejudiced by allegedly deficient performance. Roller also contends that he is entitled to a new trial because, without notifying the parties, the trial court responded to a jury request during deliberations. We conclude that any error in this respect was harmless. We affirm the judgments and orders denying postconviction relief.

I. Background.

¶ 2. The State charged Roller with five counts of first-degree sexual assault of a child in violation of Wis. Stat. § 948.02(1) (1991-92). Count 1 alleged that Roller had penis-to-vagina intercourse with Relly W. The remaining four counts related to Roller's contact with Ratherine D.: Count 2 alleged hand-to-breast contact, Count 3 alleged penis-to-vagina intercourse, Count 4 alleged mouth-to-vagina contact, and Count 5 alleged penis-to-vagina intercourse.

¶ 3. At trial, Kelly W testified that in 1993, when she was eleven years old, she was at Roller's house. Kelly W. was a friend of Roller's daughter and had been asked to baby-sit a younger brother. Kelly W. said she was on the porch when Roller told her she had a phone call. When she entered the house, Roller pushed her down on the living room floor, removed her shorts and underwear, and forced his penis into her vagina.

¶ 4. Katherine D. testified that in 1991, when she was eight years old, Roller was at her house visiting her family. That night, Roller came into Katherine D.'s bedroom, unzipped her nightgown, and rubbed her bare chest. Later, in the living room, Roller pulled up her nightgown and pulled down her underwear, then touched her vagina with his hands, his mouth, and his penis. She testified that Roller put his penis into her vagina two separate times and put his mouth on her vagina for a couple of minutes.

¶ 5. The jury found Roller guilty of all five charges and Roller filed postconviction motions with the same claims he now pursues on appeal. The trial court denied the motions and this appeal followed.

II. Analysis

A. Standards Applicable To Ineffective Assistance Of Counsel Claims

¶ 6. Three of Roller's claims involve the contention that he received ineffective assistance of counsel. We set forth here the generally applicable standards for such claims.

¶ 7. A defendant alleging ineffective assistance of counsel bears the burden of showing that his trial counsel's performance was deficient and that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990).

¶ 8. The function of a court assessing a claim of deficient performance is to determine whether counsel's performance was objectively reasonable. See State v. Kimbrough, 2001 WI App 138, ¶¶ 31-35, 246 Wis. 2d 648, 630 N.W.2d 752. In making this determination, the court may rely on reasoning which trial counsel overlooked or even disavowed. See id. at ¶¶ 24, 31. Courts "do not look to what would have been ideal, but rather to what amounts to reasonably effective representation." State v. McMahon, 186 Wis. 2d 68, 80, 519 N.W.2d 621 (Ct. App. 1994). Professionally competent assistance encompasses a "wide range" of behaviors. Strickland, 466 U.S. at 689. "Review of counsel's performance gives great deference to the attorney and every effort is made to avoid determinations of ineffectiveness based on hindsight." Johnson, 153 Wis. 2d at 127.

¶ 9. Showing prejudice means showing that counsel's alleged errors actually had some adverse effect on the defense. Strickland, 466 U.S. at 693. The defendant must show the alleged deficient performance "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. The defendant cannot meet this burden by simply showing that an error had some conceivable effect on the outcome. Id. at 693. Instead, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694; State v. Moats, 156 Wis. 2d 74, 101, 457 N.W.2d 299 (1990).

¶ 10. Whether trial counsel's actions constitute ineffective assistance presents a mixed question of fact and law. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711 (1985). We will not reverse the trial court's factual findings regarding counsel's actions unless those findings are clearly erroneous. Id. at 634. Whether trial counsel's performance was deficient, and whether that behavior prejudiced the defense, are questions of law we review de novo. Id.

B. Voir Dire

¶ 11. Roller argues that he was denied effective assistance of counsel because his trial attorney failed to sufficiently question several prospective jurors about their personal experiences with sexual assault and sexual assault victims. Roller tacitly concedes that the record does not support a finding that any of the jurors who sat on his case were biased. He nonetheless asserts that his trial counsel's failure to properly pursue indications of possible bias during voir dire might have resulted in a biased juror escaping detection.

¶ 12. The well-established burden placed on Roller is to show both deficient performance and resulting prejudice. However, we need not decide whether Roller's counsel performed deficiently during voir dire because we conclude that Roller has failed to show prejudice. See State v. Sanchez, 201 Wis. 2d 219, 237-39, 548 N.W.2d 69 (1996).

¶ 13. Roller spends much time trying to persuade this court that his counsel performed deficiently during voir dire, but he does not attempt to show resulting prejudice. In that regard, Roller merely states "[i]t would be impossible to prove that [he] would have been acquitted but for his counsel's deficiency at jury selection." Roller apparently assumes that showing prejudice in this context means showing that a differently composed jury would have acquitted him. He seems to be saying that, because this is an impossible task, he should be relieved of his burden of showing prejudice.

¶ 14. Roller misperceives the issue. He was entitled to an unbiased jury, regardless of the outcome of his trial. See State v. Brunette, 220 Wis. 2d 431, 439, 583 N.W.2d 174 (Ct. App. 1998) ("The right to an impartial jury is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution as well as the principle of due process."). The prejudice issue here is whether his counsel's performance resulted in the seating of a biased juror, not whether a differently composed jury would have acquitted him. See State v. Traylor, 170 Wis. 2d 393, 400-01, 489 N.W.2d 626 (Ct. App. 1992); see also State v. Lindell, 2001 WI 108, ¶ 81, 245 Wis. 2d 689, 629 N.W.2d 223.

¶ 15. Accordingly, at the postconviction stage Roller needed to show that if his trial counsel had asked more or better questions, those questions would have resulted in the discovery of bias on the part of at least one of the jurors who actually decided his case. He might have done this by calling suspect jurors as witnesses at his postconviction hearing and asking them the questions he now claims his trial counsel should have asked. There is nothing unusual about this sort of retroactive determination of juror bias. E.g., State v. Delgado, 223 Wis. 2d 270, 588 N.W.2d 1 (1999) (postconviction hearing conducted to determine whether juror who gave an erroneous answer during voir dire was actually biased). However, Roller made no such showing, and his assertion of possible juror bias is mere speculation. See State v. Erickson, 227 Wis. 2d 758, 774, 596 N.W.2d 749 (1999) (speculation is insufficient to satisfy the prejudice prong of Strickland).

¶ 16. Therefore, based on Roller's failure to show prejudice, we reject his claim that he was denied effective assistance of counsel during voir dire.

C. Closing Argument

¶ 17. Roller argues that he was denied effective assistance of counsel during closing argument. He contends that his trial counsel deficiently failed to ask for acquittal and to emphasize the State's burden of proving the elements beyond a reasonable doubt. Roller also, complains that his counsel suggested, in the following passage from closing argument, that Roller was guilty:

Now, what I am addressing to you is that if in fact that happened as Katherine D[.] said, that it did not happen to the extent certainly that four separate violations took place at or about that same time in the living room, three of which would be approximately in the living room. One would have been [in] the bedroom, the touching while she was in bed.

¶ 18. The burden placed on Roller is to show that his counsel's performance during closing argument was deficient and that he suffered prejudice as a result. In this context, showing prejudice means showing that, but for counsel's challenged performance, there is a "reasonable probability that. .. the result of the proceeding would have been different." Strickland, 466 U.S. at 694.

¶ 19. Once again, Roller exerts much energy attempting to show that trial counsel's performance was deficient, but expends little effort to show resulting prejudice. He does not analyze the strengths and weaknesses of the State's case or attempt to explain why a different closing argument might have produced different verdicts. His choice of approach is understandable. A review of the trial court record discloses that Roller's real problem was his own testimony and the credible testimony of two child witnesses. A closing argument stressing the State's burden and asking for acquittal would have made no difference.

¶ 20. Trial counsel's failure to stress the State's burden of proof did not leave the jury in the dark. The trial court instructed the jury on the State's burden of proof, and the prosecutor told the jury about the State's burden during his closing argument. We do not agree that trial counsel's failure to remind the jury of the State's burden of proof prejudiced Roller.

¶ 21. As for trial counsel's failure to expressly ask for acquittal and his apparent suggestion to the jurors that they need not find Roller guilty of all the charged crimes even if they believed he did something to Ratherine D., we find it purely speculative that these actions had an adverse effect on the verdicts. We believe, instead, that powerful trial testimony overshadowed the arguments of the attorneys.

¶ 22. Both Kelly W. and Katherine D., friends of Koller's daughter, gave unequivocal and credible testimony that Koller assaulted them. There was no suggestion that either child had a motive to falsify a charge against Koller. Further, Koller took the stand, against the advice of his counsel, and gave testimony insulting to girls and women, including referring to females in general as "bitches" and asserting that women allege rape in order to get attention. He talked about mothers who cannot take care of their children with the result that men like him get accused of crimes. Koller told the jury that he keeps getting accused of things he did not do. In at least one part of his testimony, Koller even equivocated on the question of his own innocence. When asked on cross-examination about the incident with Kelly W., Koller testified, "I don't remember it because it didn't — a lot of times I meditate wondering what could have [] happened. And then I keep on thinking, no, I can't remember it because it didn't happen."

¶ 23. In light of the trial testimony, we are not convinced there is a reasonable probability that the result of the trial would have been different had trial counsel performed another way in closing argument. Koller has not met his burden of showing that he was prejudiced by his counsel's performance during closing argument.

D. Multiplicity

¶ 24. Koller asserts that his right to be free from double jeopardy was violated because he received multiple punishments for three of his sexual assault convictions when the facts show these three assaults corn-prised just one, or at most two, continuous crimes. More specifically, Roller first asserts that Counts 3 and 5 should have comprised a single count because both involved the same act (penis-to-vagina intercourse) and, so far as the trial testimony shows, these two contacts could have occurred in quick succession with no intervening event and no time for reflection. Roller separately argues that Counts 3, 4, and 5 should have comprised a single count because, although different types of acts were alleged (both penis-to-vagina and mouth-to-vagina), all three acts were so similar in nature and occurred so close in time that they comprised a "spontaneous succession" with no opportunity for reflection and no "new volitional departure."

¶ 25. Roller raises his challenges as direct claims of error and in the context of ineffective assistance of counsel. For reasons explained below, we find that Roller's claims were waived and are, therefore, appropriately addressed in the context of ineffective assistance of counsel.

¶ 26. Although Roller asserts that his trial counsel ineffectively failed to seek dismissal of multiplici-tous counts "prior to trial," he does not analyze the allegations presented in the criminal complaint or at the preliminary hearing, and he makes no attempt to show that a challenge prior to trial would have been successful. The only arguments Roller develops on appeal are those relating to trial evidence and his complaint that his counsel failed to raise multiplicity objections at the close of the State's case. Accordingly, we only address whether Roller's trial counsel rendered ineffective assistance when he failed to raise multiplicity challenges at the close of the State's case. For reasons that will be evident, the result of this appeal would not change if we were to address trial counsel's failure to raise pretrial challenges.

¶ 27. In order to properly address these claims, we must first determine as a general matter what a trial court should do when a defendant raises a new multiplicity challenge at trial based on the argument that the trial evidence is insufficient to support splitting a continuous course of conduct into multiple convictions. This determination will inform both our waiver analysis and our ineffective assistance analysis. In the following sections we conclude (1) that Koller's multiplicity claims were waived; (2) that the claims must, therefore, be assessed in the context of ineffective assistance of counsel; (3) that if Koller's counsel had raised a multiplicity challenge at the close of the State's case, the State would have had an opportunity to present additional evidence supporting multiple charging; and (4) that Koller has not met his burden of showing either deficient performance or resulting prejudice.

1. Multiplicity Challenges To Proof

¶ 28. Multiple punishments for the same offense violate the double jeopardy protections of the state and federal constitutions. State v. Sauceda, 168 Wis. 2d 486, 492, 485 N.W.2d 1 (1992). As our supreme court explained:

Multiplicity (and therefore double jeopardy) is implicated only to the extent of preventing a court from imposing a greater penalty than the legislature intended. In other words, because double jeopardy protection prohibits double punishment for the "same offense," the focus of the inquiry is whether the "same offense" is actually being punished twice, or whether the legislature indeed intended to establish separate offenses subjecting an offender to separate, although cumulative, punishments for the same act.

State v. Derango, 2000 WI 89, ¶ 28, 236 Wis. 2d 721, 613 N.W.2d 833 (citations omitted).

¶ 29. Wisconsin employs a two-part test for multiplicity:

The first part consists of an analysis under Blockburger v. United States, 284 U.S. 299, 304 (1932), to determine whether the offenses are identical in law and fact... The second part, which we reach if the offenses are not identical in law and fact, is an inquiry into legislative intent.
... If under the Blockburger test the offenses are different in law or fact, a presumption arises that the legislature intended to permit cumulative punishments for both offenses. This presumption can only be rebutted by clear legislative intent to the contrary.

Id. at ¶¶ 29-30 (citations omitted).

¶ 30. This appeal presents a "continuous offense" challenge, one in which multiple charges are "identical in law" because they are brought under the same statutory section. Roller's multiplicity challenge hinges on persuading this court that Counts 3, 4, and 5 were "identical in fact." Failing that, Roller does not attempt to overcome the presumption that the legislature intended to permit multiple punishments. Accordingly, we need only address whether Counts 3, 4, and 5 are "identical in fact."

¶ 31. The "identical in fact" inquiry under the first part of the multiplicity test involves a determination of whether the charged acts are "separated in time or are of a significantly different nature." State v. Eisch, 96 Wis. 2d 25, 31, 291 N.W.2d 800 (1980); see also State v. Trawitzki, 2001 WI 77, ¶ 28, 244 Wis. 2d 523, 628 N.W.2d 801. The "different nature" inquiry is not limited to an assessment of whether the acts are different types of acts. Rather, even the same types of acts are different in nature "if each requires 'a new volitional departure in the defendant's course of conduct.'" State v. Anderson, 219 Wis. 2d 739, 750, 580 N.W.2d 329 (1998) (quoting Eisch, 96 Wis. 2d at 36); see also State v. Warren, 229 Wis. 2d 172, 183, 599 N.W.2d 431 (Ct. App. 1999). Furthermore, time is an important factor, but even a brief time separating acts may be sufficient:

That the interval is merely minutes or even seconds, as with the other elements and factors discussed, cannot he a solely determinative factor. The resolution of this factor is not solved by a stopwatch approach.

Harrell v. State, 88 Wis. 2d 546, 572, 277 N.W.2d 462 (Ct. App. 1979). The pertinent time question is whether the facts indicate the defendant had " 'sufficient time for reflection between the assaultive acts to again commit himself.'" State v. Hirsch, 140 Wis. 2d 468, 475, 410 N.W.2d 638 (Ct. App. 1987) (quoting Harrell, 88 Wis. 2d at 560).

¶ 32. Whether a multiplicity violation exists in a given case is a question of law that we review de novo. State v. Reynolds, 206 Wis. 2d 356, 363, 557 N.W.2d 821 (Ct. App. 1996).

¶ 33. Although multiplicity cases rarely differentiate the two, there is a difference between multiplicity challenges to charging and multiplicity challenges to proof. The prohibition against multiplicity in charging is prophylactic; it primarily protects defendants against multiple punishments for a single crime. Charles Alan Wright, Federal Practice and Procedure: Criminal 3d § 142 at 17 (3d ed. 1999); State v. Wright, 948 P.2d 677, 683 (Kan. Ct. App. 1997). Some courts have also noted that improper multiple charging can work against defendants by leading juries to believe charged conduct is more serious than it is because it allegedly constitutes multiple crimes. See, e.g., State v. Desirey, 909 S.W.2d 20, 27 (Tenn. Crim. App. 1995); see also 4 Wayne R. LaFave et al., Criminal Procedure § 19.3(c) at 776 (2d ed. 1999).

¶ 34. When a defendant complains prior to trial that criminal charges improperly split a single crime into multiple counts because the alleged factual basis does not show a "new volitional departure," the pertinent question is whether the State has alleged facts which, if proven, demonstrate a new volitional departure. However, just because the State has properly alleged facts for purposes of multiplicity analysis does not mean the State can prove the alleged facts. Thus, apart from whether there is a basis for a multiplicity challenge to pretrial allegations, events at trial, or otherwise may suggest that the State is unable to actually prove a new volitional departure supporting multiple charging.

¶ 35. Roller complains that his trial counsel's failure to raise multiplicity challenges allowed the "legally and factually complex issue of multiplicity to go to the jury." This argument is based on a misunderstanding of the roles of judge and jury with respect to multiplicity disputes. These disputes are resolved by trial judges, not juries. See Anderson, 219 Wis. 2d at 746 ("[w]hether an individual's constitutional right to be free from double jeopardy has been violated is a question of law"). Juries are not instructed on multiplicity issues and do not decide, even inferentially, whether charges are multiplicitous. There is no possibility that Roller's jury decided this "complex issue."

¶ 36. To underscore this point, we observe that the same evidence which is sufficient to support a jury finding of guilt on two charged counts might not also be sufficient to support multiple convictions under multiplicity analysis. The following hypothetical is illustrative. Suppose a husband is charged with four counts of battery for slapping his wife four times: Count 1 for the first slap, Count 2 for the second slap, and so forth. Suppose further that the wife testifies at trial that the husband slapped her each time as part of a continuous back and forth motion with his hand. For purposes of sufficiency of the evidence, each slap, and the attending circumstances, supplies sufficient evidence to support a conviction for each of the charged counts. However, multiplicity analysis is a different matter. Under these facts, a trial court might well determine the charges were multiplicitous and send only a single count to the jury.

¶ 37. Because multiplicity is not a jury matter, it follows that when a multiplicity challenge is raised during trial, including after the State has rested, the trial court may allow the State to present additional evidence, normally without the jury present.

¶ 38. These observations raise a question which we note, but do not resolve: What is the burden on the State when a defendant raises a multiplicity challenge directed at proof, rather than pretrial allegations? It can be argued that the State must meet the "beyond a reasonable doubt" standard when presenting evidence justifying multiple charges. On the other hand, the "preponderance of the evidence" standard is normally applicable when a defendant raises a constitutional challenge requiring a trial court to both find facts and resolve a legal question based on those facts. See, e.g., State v. Rewolinski, 159 Wis. 2d 1, 16 n.7, 464 N.W.2d 401 (1990) (State's burden at a suppression hearing is proof by a preponderance of the evidence); State v. Lee, 175 Wis. 2d 348, 362-64, 499 N.W.2d 250 (Ct. App. 1993) (State must prove waiver of Miranda rights was knowing and intelligent by a preponderance of the evidence). We need not resolve this question because, as shown below, regardless of the evidentiary burden placed on the State, Roller can do no more than speculate that the State could not have met its burden.

2. Waiver Of The Multiplicity Challenges

¶ 39. Roller first raised his multiplicity claims after trial. He contends that defendants can "challenge multiple punishment for the same offense at any point." It follows, in his view, that he did not waive his challenges and that he is entitled to relief on appeal without showing ineffective assistance of counsel. The State, in contrast, asks us to find waiver because there was no objection prior to trial. The State asserts that there should be a waiver rule providing that all multiplicity challenges must be made prior to trial or be deemed waived. We disagree with both positions.

¶ 40. First, we reject the State's' proposal that all multiplicity claims must be raised prior to trial pursuant to Wis. Stat. § 971.31(2), or be deemed waived. Section 971.31(2) does not address objections based on events at trial. The only argument Roller seriously pursues on appeal is that the State failed to submit sufficient evidence at trial to support multiple punishments for his course of conduct. Where, as here, a development after the start of trial provides the basis for a new argument supporting a multiplicity challenge, that argument is not waived if omitted prior to trial. That being said, Roller's claims were nonetheless waived because they were also omitted prior to the time the case was submitted to the jury.

¶ 41. " 'No procedural principle is more familiar .. . than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right. . . " Michel v. Louisiana, 350 U.S. 91, 99 (1955), reh'g denied, 350 U.S. 955 (1956) (quoting Yakus v. United States, 321 U.S. 414, 444 (1944)). Enforcement of the contemporaneous objection rule encourages parties to view the trial "as an event of significance that should be kept as error-free as possible." State v. Davis, 199 Wis. 2d 513, 518, 545 N.W.2d 244 (Ct. App. 1996) (citing Wainwright v. Sykes, 433 U.S. 72, 90 (1977)).

The waiver rule exists to cultivate timely objections. Such objections promote both efficiency and fairness. By objecting, "both parties and courts have notice of the disputed issues as well as a fair opportunity to prepare and address them in a way that most efficiently uses judicial resources." If the waiver rule did not exist, a party could decline to object for strategic reasons and raise the error only when that party needed an advantage at some point in the trial. Similarly, judicial resources, not to mention the resources of the parties, are not best used to correct errors on appeal that could have been addressed during the trial.

Erickson, 227 Wis. 2d at 766 (citations omitted).

¶ 42. It could be argued that the State should be required to anticipate multiplicity challenges during trial and, even in the absence of such a challenge, present evidence showing that multiple charging is justified, or lose its opportunity to do so. We are not persuaded. Trials are not structured to resolve multiplicity disputes and, absent notice, the State should not be required to prove facts supporting multiple charges for purposes of multiplicity analysis. Given the subtlety of some multiplicity challenges, and the variety of possible challenges, it is unreasonable to impose upon the State the burden of anticipating all possible forms such challenges might take. See, e.g., United States v. Griffin, 765 F.2d 677, 681 (7th Cir. 1985) (court imposed waiver to avoid creating an incentive for defendants to delay multiplicity challenges until after trial; court observed that a post-trial challenge to multiple charges involving two quantities of drugs, one in the defendant's pants pocket and one in his car, might deprive the state of an opportunity to show that the two packages contained drugs of a different purity).

¶ 43. During the trial in this case, the prosecutor's attention was directed at meeting his burden of proving all the elements of all the charged offenses. With respect to the counts at issue here, he met that burden by producing evidence of mouth-to-vagina contact and two separate instances of penis-to-vagina intercourse. There was no multiplicity challenge prior to or during trial and no reason for the prosecutor to anticipate that he needed to put on more evidence. It was incumbent on Koller to raise his claims before the end of trial so that the prosecution could have an opportunity to develop more facts while the witnesses were on hand and to enable the trial court to resolve the matter in an efficient and timely manner.

¶ 44. Accordingly, the reasoning behind the contemporaneous objection rule has full force here. We find that in situations like the one here, where a defendant claims that the state did not present enough eviden-tiary detail at trial to support splitting a course of conduct into multiple violations of the same statute, a multiplicity objection is waived if not raised prior to the time the case is submitted to the jury. Since Koller waived his claims, he may not obtain relief unless he shows that an omitted multiplicity objection constituted ineffective assistance of counsel. See Erickson, 227 Wis. 2d at 766 ("the normal procedure in criminal cases is to address waiver within the rubric of the ineffective assistance of counsel").

3. Ineffective Assistance With Respect To The Omission Of A Multiplicity Challenge To Counts 3 And 5

¶ 45. Roller argues that, at the close of the State's case, his trial counsel should have raised a multiplicity challenge to Counts 3 and 5 because both counts involved the same act (penis-to-vagina intercourse) and, so far as the trial testimony shows, these two contacts could have occurred in quick succession with no significant intervening time or event. His claim is directed at whether the acts constituting Counts 3 and 5 were different in "nature" within the meaning of cases such as State v. Eisch, 96 Wis. 2d 25, 291 N.W.2d 800 (1980), and State v. Hirsch, 140 Wis. 2d 468, 410 N.W.2d 638 (Ct. App. 1987).

¶ 46. The procedural chronology in which this claim arises is relevant to its proper resolution.

¶ 47. Prior to trial, there was no reasonable basis on which to rest a claim that Counts 3 and 5 were multiplicitous with respect to each other. The facts alleged in the criminal complaint and the testimony at the preliminary hearing plainly supported separate charges.

¶ 48. In the criminal complaint, Katherine D. is credited with asserting that Koller had penis-to-vagina intercourse with her in the living room (Count 3) and then mouth-to-vagina contact (Count 4) in the same room. Katherine D. was then allowed to go to the bathroom, but instead sought refuge in her mother's bedroom where she was unable to awaken her mother from a medication-induced state of sleep. Katherine D. said Koller then carried her back to the living room where penis-to-vagina intercourse occurred a second time (Count 5).

¶ 49. At the preliminary hearing, with less detail, but similar clarity, Katherine D. asserted that mouth-to-vagina contact occurred between the first and second penis-to-vagina intercourses:

Q Okay. Later that day, did you have contact again with the defendant you just identified?
A Yes.
Q And where did that take place?
A In the living room.
Q And did he do anything to you in the living room?
A Yeah.
Q What did he do?
A He pulled up my nightgown and pulled down my underpants and he unzipped the front of my nightgown and he stuck his penis in my vagina.
Q After he stuck his penis in your vagina, did he do anything else to you?
A Yeah. He put his mouth on it.
Q On what?
A My vagina.
Q After he put his mouth on your vagina, did he do anything else to you?
A Yeah. He again stuck his penis in my vagina.

¶ 50. Katherine D.'s trial testimony detailed the types of contact, but did not provide the sequence of Counts 3, 4, and 5. Instead of specifying that Roller had mouth-to-vagina contact with her between the two penis-to-vagina intercourses, Katherine D. only related that Roller put his penis into her vagina on "two separate occasions" and put his mouth on her vagina for a couple of minutes. Questions and answers relating to the sequence of the two instances of penis-to-vagina intercourse were limited to the following:

Q How many times that night did he put his penis into your vagina?
A Twice.
Q The two times that he placed his penis into your vagina, did both of those take place in the living room?
A Yeah.
Q While you were on the couch?
A Yeah.
Q And he did it on two separate occasions?
A Yeah.

Neither attorney asked Katherine D. for more details, and there was nothing in her trial testimony indicating that any event or particular amount of time separated the first penis-to-vagina intercourse from the second.

¶ 51. Roller complains that his trial counsel should have seized on Katherine D.'s lack of specificity at trial to assert, at the close of the State's case, a multiplicity problem with Counts 3 and 5. He argues that such a motion would have been successful because, regardless of pretrial allegations, the trial evidence did not support separate penis-to-vagina convictions. Roller further argues that the postconviction testimony shows that his trial counsel did not have a- valid strategic reason for failing to raise this multiplicity challenge.

¶ 52. For purposes of this decision, we will assume that the trial testimony does not support two separate charges for penis-to-vagina intercourse. Roller argues that the absence of testimony showing the two vaginal penetrations were separated by a significant event or time provides no basis for a determination that he had "sufficient time for reflection between the assaultive acts to again commit himself." Harrell, 88 Wis. 2d at 560. On the other hand, an argument can be made that because Katherine D. was only eight years old and Roller was an adult, each penetration of Katherine D.'s vagina necessarily required significant effort and, therefore, a new volitional departure. We choose not to resolve these competing arguments and will instead assume, without deciding, that the trial testimony supported only a single count of penis-to-vagina intercourse.

¶ 53. We agree with Roller that the postconviction testimony of his trial counsel reveals no sound strategic reason for omitting a multiplicity challenge at the close of the State's case. However, regardless of counsel's subjective thought process, his omission was objectively reasonable.

¶ 54. The flaw in Roller's argument is his assumption that the trial court's assessment of multiplicity at the close of the State's case would have been based only on trial testimony up to that point in time. However, as shown above, the State was under no duty to persuade the jury that multiple charging was proper, and the presumed omission of trial testimony showing a new volitional departure was not by itself a problem. This was a matter for the trial court to address if and when it was raised. If a multiplicity challenge had been raised, the trial court could have permitted the State to present additional evidence on the topic.

¶ 55. Accordingly, in order to show that he was prejudiced by the omitted objection, Roller needed to show that the State would have been unable to present evidence satisfying the trial judge that the second penis-to-vagina penetration was a new volitional departure. Roller has not made the attempt, and any such effort would be highly speculative. See Erickson, 227 Wis. 2d at 774 (speculation is insufficient to satisfy the prejudice prong of Strickland). In light of Katherine D.'s pretrial statements, it appears the State could have easily met its burden.

¶ 56. We conclude that, at the close of the State's case, a reasonably competent defense counsel, mindful of the pretrial record, would have considered a multiplicity challenge to Counts 3 and 5 to be a waste of time. Thus, Koller has not shown deficient performance. Further, we conclude that Koller has not shown resulting prejudice because he has not demonstrated that such a challenge would have been successful.

4. Ineffective Assistance With Respect To The Omission Of A Multiplicity Challenge To Counts 3, 4, And 5

¶ 57. Koller separately argues that Counts 3, 4, and 5 should have comprised a single count because, although the three counts encompassed different types of acts (both penis-to-vagina and mouth-to-vagina), the trial testimony reveals only a single "spontaneous succession" comprised of acts so similar in nature and occurring so close in time that there was no opportunity for reflection and no "new volitional departure." He complains that his counsel's failure to raise this multiplicity challenge at the close of the State's case amounted to ineffective assistance of counsel.

¶ 58. This second multiplicity claim does not merit an extended discussion because, once again, it is based on the notion that an objection at the close of the State's case would have been assessed solely in light of previously received trial evidence. However, as the above sections of this decision demonstrate, the trial court would not have been limited in that manner. Therefore, Koller's challenge to Counts 3, 4, and 5 fails because a reasonably competent defense counsel, in the shoes of Koller's attorney, could have determined that such a challenge was futile. Further, Koller has not demonstrated prejudice because he has not even attempted to show that his multiplicity challenge would have been successful if the State had been allowed to present additional evidence.

¶ 59. There is another reason Koller's second multiplicity challenge fails. This second claim is directed primarily at the relationship between Count 4 (mouth-to-vagina contact), on the one hand, and Counts 3 and 5 (penis-to-vagina intercourse), on the other. Koller asserts that evidence showing a switch from mouth-to-vagina contact to penis-to-vagina intercourse, without more, does not show a "new volitional departure." We disagree. When a perpetrator moves from having mouth-to-vagina contact to having penis-to-vagina intercourse, he necessarily engages in a new volitional act warranting a separate charge, conviction, and punishment.

¶ 60. Koller's contrary argument is based on the portion of Hirsch, where we concluded there was no "significant change in activity" when the defendant moved his hand from the child's "vagina to her anus and back again." Hirsch, 140 Wis. 2d at 474-75. However, while one might conceive a defendant continuously moving his hand from the outside of a child's vagina to the outside of her anus without a "new volitional departure," the same is not true of moving from mouth-to-vagina contact to penis-to-vagina intercourse. These acts are plainly different in nature and involve a new volitional departure, regardless how much time separates the two. Cf. Eisch, 96 Wis. 2d at 27-28, 33 ("different nature" of oral sex and penis-to-vagina intercourse deemed to be the important factor in determining that the acts were properly charged in separate counts).

E. Trial Court Communication With Jury

¶ 61. At Koller's trial, a nurse testified regarding a doctor's report of a pelvic examination of Katherine D., performed after the alleged assaults. The nurse was present during the doctor's examination and testified about her own observations and whether the results of the exam were consistent with a sexual assault. During deliberations, the jury sent a note to the court indicating that it wanted to see the doctor's report and a transcript of the nurse's testimony. Without notifying the parties of the request, the trial court responded to the jury through the bailiff that those items were "not available." Koller contends that the trial court's communication with the jury in his absence was constitutional error warranting a new trial.

¶ 62. Unless a defendant has waived his or her rights, a trial court's communication with a deliberating jury in the absence of the defendant and defendant's counsel violates the defendant's constitutional right to be present at trial and to have counsel at every stage where he or she needs aid in dealing with legal problems. State v. Burton, 112 Wis. 2d 560, 565, 334 N.W.2d 263 (1983). When a trial court commits this type of violation, the error is subject to harmless error analysis. Id. at 570-73; State v. Bjerkaas, 163 Wis. 2d 949, 957-58, 472 N.W.2d 615 (Ct. App. 1991). We examine the circumstances and substance of the communication in light of the entire trial to determine whether the' error was harmless. See Bjerkaas, 163 Wis. 2d at 957-58. An error is harmless if there is no reasonable, possibility that the error affected the outcome of the trial. Id. at 958.

¶ 63. The State contends that no error occurred in this case because the trial court's response involved only a response on a point of law. In support, the State points to May v. State, 97 Wis. 2d 175, 181-87, 293 N.W.2d 478 (1980), and State v. Clifton, 150 Wis. 2d 673, 685-86, 443 N.W.2d 26 (Ct. App. 1989). While we agree that these cases suggest that a defendant's presence is not required when the trial court answers a jury's written question on a point of law, they do not resolve the issue and they do not provide clear guidance on the difference between a mere "point of law" and other jury questions involving legal issues.

¶ 64. We doubt that both requests by the jury raised only a "point of law." However, rather than attempt to sort through the merits of the State's argument, we will assume for purposes of this decision that the trial court erred by responding to both questions without consulting with or doing so in the presence of Roller and his attorney. We will address, instead, the State's harmless error argument.

¶ 65. With respect to the trial court's denial of the request to see the doctor's report, there is no possible prejudice. The report itself was never presented to the jury as evidence during trial and never moved into evidence. Accordingly, the report was not evidence and it could not properly be sent to the jury for its consideration. See State v. Eison, 194 Wis. 2d 160, 175, 533 N.W.2d 738 (1995); Johnson v. State, 75 Wis. 2d 344, 363, 249 N.W.2d 593 (1977); King v. State, 75 Wis. 2d 26, 41-42, 248 N.W.2d 458 (1977).

¶ 66. It is evident that the jury's interest in the nurse's testimony was related to its interest in the doctor's report. By itself, the nurse's testimony was simple and brief. She told the jury that the report contained the doctor's conclusion that Katherine D.'s hymen was "not smooth" as would be expected with an eight-year-old child. The nurse also testified that Katherine D.'s condition was consistent with the reported assault. Because there was nothing complicated or difficult to remember about the nurse's testimony, we think it apparent that the jury's true interest was in the doctor's report, something it could not see.

¶ 67. Accordingly, assuming that the trial court erred when it communicated with the jury without consultation with or in the presence of Koller and his attorney, the error was harmless. There is no reason to think that the verdicts in this case would have been different if the jury had been able to review a transcript of the nurse's testimony during deliberations.

By the Court. — Judgments and orders affirmed.

       All references to the Wisconsin Statutes are to the 1991-92 version unless otherwise noted. While the assaults occurred in both 1991 and 1993, the language of the applicable portions of the child sexual assault statutes remained the same at both relevant times.
      Wisconsin Stat. § 948.02(1) states in relevant part, "Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years is guilty of a Class B felony."
      WISCONSIN Stat. § 948.01(5) defines sexual contact as "any intentional touching by the complainant or defendant, either directly or through clothing by the use of any body part or object, of the complainant's or defendant's intimate parts...."
      WisConsin Stat. § 948.01(6) defines sexual intercourse as "vulvar penetration as well as cunnilingus, fellatio or anal intercourse between persons or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal opening...."

       We recognize that the existence of a "new volitional departure" is not the full test under the "identical in fact" inquiry, but we think this term captures much of the essence of the test and we use it as shorthand for the full test.

       We observe that a trial court may receive the additional evidence in the presence of the jury if doing so preserves the rights of both parties. Frequently, evidence tending to show a "new volitional departure" is also admissible to prove the elements of the charged crimes.

       Wisconsin Stat. § 971.31(2) (1993-94) reads:
      Except as provided in sub. (5), defenses and objections based on defects in the institution of the proceedings, insufficiency of the complaint, information or indictment, invalidity in whole or in part of the statute on which the prosecution is founded, or the use of illegal means to secure evidence shall be raised before trial by motion or be deemed waived. The court may, however, entertain such motion at the trial, in which case the defendant waives any jeopardy that may have attached.

       We stress that there are many different types of situations in which multiplicity issues arise, and we do not purport to set forth a general waiver rule covering all situations. At the same time, we note that this is not the first time we have found a double jeopardy claim waived. E.g., State v. Reynolds, 206 Wis. 2d 356, 361-62, 557 N.W.2d 821 (Ct. App. 1996) (failure to raise multiplicity claim resulted in treating the claim in the ineffective assistance context after trial); State v. Patricia A.M., 168 Wis. 2d 724, 739, 484 N.W.2d 380 (Ct. App. 1992), rev'd on other grounds, 176 Wis. 2d 542, 500 N.W.2d 289 (1993) (multiplicity claim waived because it was not raised prior to appeal); State v. Mink, 146 Wis. 2d 1, 9-10, 429 N.W.2d 99 (Ct. App. 1988) (failure to seek dismissal on double jeopardy grounds before retrial after a mistrial was waiver); cf. State v. McMahon, 186 Wis. 2d 68, 79-80, 519 N.W.2d 621 (Ct. App. 1994) (duplicity claim waived because not raised and, therefore, issue analyzed in context of ineffective assistance).

       We note that in Bjerkaas the State conceded that a judge erred when he answered a jury's legal question regarding entrapment. State v. Bjerkaas, 163 Wis. 2d 949, 957, 472 N.W.2d 615 (Ct. App. 1991).

       Our comments here should not be read to detract from the " 'strong, consistently expressed disapproval of a judge's communicating with the jury after it has retired for deliberations, unless the communication is in open court.'" McMahon, 186 Wis. 2d at 87 (quoting State v. Burton, 112 Wis. 2d 560, 569, 334 N.W.2d 263 (1983)).

       Judge Laurence C. Gram conducted pretrial proceedings, the trial, and a postconviction hearing. Judge Gram orally denied Roller's postconviction motion and Judge William D. Gardner issued a written order based on Judge Gram's oral ruling. Roller appealed, but in 2000 this court granted Roller's motion to remand for a supplemental postconviction proceeding on the issue of whether Judge Gram erred by communicating with the jury in the absence of defense counsel. On remand, Judge John J. DiMotto denied this supplemental postconviction motion.


source: Caselaw Access Project

author: VERGERONT, P.J.

license: Public Domain

text:
    State of Wisconsin ex rel. Reginald C. Bruskewitz, Plaintiff-Appellant, v. City of Madison and/or Common Council of the City of Madison, Defendants-Respondents.
    Court of Appeals

      No. 00-2563.

      Submitted on briefs April 18, 2001.

    Decided September 20, 2001.

    2001 WI App 233
    (Also reported in 635 N.W.2d 797.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of George B. Strother, TV of Krekeler Law Office, S.C. of Madison.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Eunice Gibson, city attorney, and James L. Martin, asst, city attorney of Madison.
    Before Vergeront, PJ., Roggensack and Lundsten, JJ.
   VERGERONT, P.J.

¶ 1. Reginald Braskewitz appeals the order of the trial court affirming the decision of the City of Madison Common Council to grant a conditional use permit to Tellurian UCAN, Inc. for a community living arrangement (CLA) for adolescent boys in the juvenile justice system. He contends that the Common Council acted arbitrarily and unreasonably in basing its decision on an erroneous interpretation of the Fair Housing Amendments Act (FHAA) and the Americans with Disabilities Act (ADA), and that neither of these acts required the Common Council to grant the conditional use permit. He also contends that the Common Council acted contrary to law because Tellurian failed to meet the criteria for a conditional use permit.

¶ 2. We conclude that, even though some of the proposed residents may have a handicap or disability within the meaning of those statutes, the FHAA and the ADA do not require that the City provide a reasonable accommodation because the residents are not living in a CLA because of those handicaps or disabilities. Because it appears that the Common Council's understanding of the FHAA and the ADA was a significant factor in its decision, and because we do not agree with Braskewitz that we can decide as a matter of law that Tellurian did not meet the criteria for a conditional use permit, we conclude that the appropriate course is a remand to the Common Council. We therefore reverse and remand to the circuit court, with directions that it reverse and remand to the Common Council and instruct the Common Council to determine whether Tel-lurian meets the standards for a conditional use permit without regard to a reasonable accommodation based on handicap or disability.

BACKGROUND

¶ 3. The house which Tellurian seeks to occupy as a CLA is located at 5315 Old Middleton Road in the Crestwood residential neighborhood. This house had been in use as a CLA for much of the time since 1981 — as a group home for eight mentally, emotionally, and developmentally handicapped adults, and a community-based residential facility for six adults with visual impairments and mental or emotional disorders. Tellurian wishes to operate a CLA there for up to eight adolescent boys between the ages of fifteen to eighteen. Because the house is within 2,500 feet from another CLA, Tellurian had to apply for a conditional use permit to occupy the house as a CLA. Tellurian is licensed by the Wisconsin Department of Health and Family Services (DHFS) to operate a CLA for adolescent boys under Wis. Stat. § 48.60 through Wis. Stat. § 48.77 (1999-2000) and has been doing so in the City of Monona for three years. DHFS directed Tellurian to find a neighborhood setting for the program, and that is why Tellurian sought to relocate to Crestwood.

¶ 4. At the time of the application, about fifty boys had previously participated in this program. About 80% had been referred by the Wisconsin Department of Corrections (DOC). A court had determined that these boys had violated a criminal statute and placed them in a correctional facility, and they now had the opportunity to serve the time remaining at Tellurian or another similar program rather than at the correctional facility. The remaining 20% had been referred by Dane County Human Services: they had either been adjudicated delinquent but were not placed in a correctional facility, or they had been removed from their homes as children in need of protection and services (CHIPS). The purpose of the program is to teach the boys the skills necessary to live independently and successfully: most will not be returning to their parents' home, but will be living on their own when they leave Tellurian. The boys are required to either be in high school (if they have not completed high school or their GED) and working twenty hours a week or be working full time. They are expected to learn to find and keep employment, manage their money, perform the domestic tasks necessary for independent living, and look for and obtain apartments or other living arrangements and be successful tenants. The average length of stay is between three to six months, with eight months as the longest stay. The boys are supervised by either one or two staff members at all times.

¶ 5. The City of Madison Plan Commission held a hearing on Tellurian's application to determine if it met the standards for a conditional use permit. Numerous persons spoke both for and against the application and submitted written letters and other documents. The negative comments were primarily from neighbors who either had concerns about safety issues given the juvenile offender status of most of the boys or had concerns about Tellurian's management and community relations.

¶ 6. In the materials Tellurian submitted, Tel-lurian asserted that prior and present participants in the program had learning disabilities, developmental disorders, psychological disorders, and past drug and alcohol addictions. Tellurian argued that this required the commission to consider its application under the FHAA and the ADA, although it also asserted that, even without reference to those statutes, it met the standards for granting the conditional use permit. The plan commission voted to refer the matter to the city attorney for an opinion on whether the FHAA and the ADA were applicable, and, if so, what they required. The city attorney prepared a written opinion stating that: (1) information submitted to the plan commission supported the conclusion that the boys proposed to be housed in the CLA had histories of drug and alcohol abuse, developmental disabilities, and psychological disorders, which were "handicaps" and "disabilities" within the meaning of the FHAA and the ADA; (2) a reasonable accommodation must therefore be provided; (3) granting the application would constitute a reasonable accommodation unless to do so would constitute a "direct threat" to public health or safety; and (4) no "direct threat" had been demonstrated at the public hearing.

¶ 7. After reconvening to hear additional speakers and receive additional written comment, the plan commission voted to deny Tellurian's application. It noted the number of residents who had run away from the facility and it found the situation detrimental to the public health, safety, comfort, and general welfare. It also found that Tellurian had not demonstrated that a conditional use permit would not substantially impair or diminish the uses, values, and enjoyment of other property in the neighborhood for purposes already established, noting the testimony on the impact of the proposed CLA on property values and on the ability of an adjoining apartment owner to rent apartments.

¶ 8. Tellurian appealed the decision to the Common Council, which conducted a public hearing. After hearing and questioning the speakers and receiving written comment, the Common Council went into closed session to consult with the city attorney. After that consultation, the Common Council voted to refer the matter to the planning unit staff for a meeting with representatives of the neighborhood and of Tellurian. They were to decide upon a method for determining whether the boys who would be living in the CLA would be disabled or handicapped within the definition of the federal statutes. A physician was retained to make that determination. He reviewed the medical files of former participants in the program and concluded that approximately twelve subjects had a disability within the statutory definition he had been given, and he could not find enough evidence in the other files to substantiate the presence of a disability meeting that definition. He also reviewed the files of the current eight participants and concluded that "it appears as if 'disability' per the definition given could be established in three cases, with an additional case being somewhat marginal." The files which the physician determined supported a conclusion of a disability showed personality, psychological or conduct disorders, learning disabilities, drug or alcohol dependency, depression, or some combination of those.

¶ 9. After receiving this report, the city attorney opined in a memorandum to the Common Council that, although no case law had addressed whether a reasonable accommodation had to be made when some but not all of the proposed residents have disabilities, in her view a reasonable accommodation would be required under these circumstances. The Common Council reconvened, listened to more speakers and questioned the planning unit staff and the city attorney. It then voted to reverse the plan commission and grant the conditional use permit, with conditions on the number of residents, vehicles, staff persons, and a requirement for motion lights and fencing.

¶ 10. Bruskewitz, who lives near the proposed CLA, sought certiorari review of the Common Council's decision in the circuit court. The circuit court affirmed the Common Council's decision, concluding that there was substantial evidence to support its decision that the standards for a conditional use permit were met.

DISCUSSION

¶ 11. On certiorari review, we are limited to determining whether: (1) the governmental body's decision was within its jurisdiction, (2) the body acted according to law, (3) the decision was arbitrary or oppressive, and (4) the evidence of record substantiates its decision. State ex rel. Ortega v. McCaughtry, 221 Wis. 2d 376, 385, 585 N.W.2d 640 (Ct. App. 1998). We apply these standards de novo to the Common Council's decision, reviewing that decision and not the decision of the circuit court. Kapischke v. County of Walworth, 226 Wis. 2d 320, 327, 595 N.W.2d 42 (Ct. App. 1999).

¶ 12. We address first Bruskewitz's contention that the Common Council acted arbitrarily and unreasonably because it based its decision on an erroneous interpretation of the FHAA and the ADA. The FHAA, 42 U.S.C. § 3604 (1994), provides that it is unlawful:

(f)(1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of -
(A) that buyer or renter,
(B) a person residing in or intending to reside in that dwelling after it is sold, rented, or made available; or
(2) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of
A that person; or
(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or
(3) For purposes of this subsection, discrimination includes -
(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling. ...

¶ 13. Under 42 U.S.C. § 3602(h) (1994), "handicap" is defined as:

(1) a physical or mental impairment which substantially limits one or more of such person's major life activities,
(2) a record of having such and impairment, or
(3) being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance. (Footnote added.)

¶ 14. The ADA, 42 U.S.C. § 12132 (1994), provides:

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

The definition of "disability" under the ADA is substantially the same as that of "handicap" under the FHAA. 28 C.F.R. § 35.104 (2001). The ADA, similar to the FHAA, requires "reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service." 28 C.F.R. § 35.130(b)(7) (2001).

¶ 15. Both the FHAA and the ADA apply to zoning regulations, practices, or decisions that subject persons with handicaps or disabilities to discrimination based on their handicap or disability. Tsombanidis v. City of West Haven, Conn., 129 F.Supp. 2d 136, 155-156 (D. Conn. 2001). For purposes of this decision, the legal analysis under both statutes are the same and thus we will consider them together.

¶ 16. Bruskewitz makes two challenges to the interpretation of the FHAA and the ADA that the city attorney presented to the Common Council. First, he disputes that Tellurian has established that any of the proposed residents has a disability within the meaning of the FHAA or the ADA because, he asserts, the physician's conclusions on those files are phrased in equivocal language. Second, he contends that the FHAA and the ADA proscribe discrimination based on a disability, and there is no showing that a negative animus toward persons with disabilities was the basis for the plan commission decision or the opposition to Tellurian's application. Nor is there a showing that a reasonable accommodation is necessary to afford the residents "an equal opportunity to use and enjoy a dwelling." Even if three out of eight residents do have a disability within the meaning of the statutes, Bruske-witz contends they are living in a CLA not because they are disabled but because they are juvenile delinquents in need of training in social skills and personal and social responsibility.

¶ 17. We will assume without deciding that the record is sufficient to show that three out of the eight proposed residents have a disability within the meaning of the FHAA and the ADA and we will focus on the second issue Bruskewitz raises. We agree with Bruske-witz that both the FHAA and the ADA proscribe discrimination based on a disability. Therefore, even if some of the proposed residents have a disability within the meaning of those statutes, only actions that discriminate against them based on those disabilities are proscribed. There are three ways to show discrimination under the statutes: (1) intentional discrimination, (2) discriminatory impact, and (3) refusal to make a reasonable accommodation. Tsombanidis, 129 F.Supp.2d. at 150-51. The City's concern with violating the statutes relates to the obligation to provide a reasonable accommodation.

¶ 18. The reason Tellurian had to apply for a conditional use permit was because of the 2,500 foot requirement. The city attorney's position as communicated to the plan commission and the Common Council, as well as the City's position on this appeal, is that, since some of the proposed residents have a disability that meets the definition of the federal statutes, the City must make a reasonable accommodation for any application for a CLA within which those individuals will reside, regardless of the relationship between the disabilities and the individuals' needs for a CLA. The reasonable accommodation that is required, in the City's view, is the application of a more favorable standard than that ordinarily applied to decide if a conditional use should be permitted in spite of the distance requirement: the conditional use should be permitted unless there is evidence that the proposed CLA would constitute "a direct threat to the health or safety of other individuals or ... would result in substantial physical damage to the property of others." 42 U.S.C. § 3604(f)(9).

¶ 19. We agree with Bruskewitz that the City's analysis lacks a necessary connection between the disability of the proposed residents and the 2,500 foot requirement. Under the FHAA, a refusal to make a reasonable accommodation is only discrimination when the accommodation is necessary to "afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B) (emphasis added). "Such person" refers to the "person" discriminated against "because of a handicap" in paragraph 2. 42 U.S.C. § 3604(f)(2). Read together, these two provisions state that when a rule, policy, practice, or service prevents a person with a disability from having an opportunity to use and enjoy a dwelling equal to that which persons without that disability have, then the failure to make a reasonable accommodation is discrimination based on a disability. Similarly, under the ADA a reasonable modification is required when "necessary to avoid discrimination on the basis of disability." 28 C.F.R. § 35.130(b)(7) (emphasis added).

¶ 20. Case law applying the reasonable accommodation provision has defined "equal opportunity" as including the right of handicapped individuals to choose to live in single-family residential neighborhoods. Smith & Lee Assoc., Inc. v. City of Taylor, Mich., 102 F.3d 781, 794-95 (6th Cir. 1996). The requirement that the accommodation be "necessary" means that, but for the proposed accommodation, the handicapped individual will likely be denied an opportunity equal to that of persons who are not handicapped to enjoy the housing of his or her choice. Id. at 795; see also Oconomowoc Residential Programs, Inc. v. City of Greenfield, 23 F. Supp. 2d 941, 957 (E.D. Wis. 1998) (" '[N]ecessary'. . . [means] a direct linkage between the proposed accommodation and the 'equal opportunity' to be provided to the handicapped person. This requirement has attributes of a causation requirement. And if the proposed accommodation provides no direct amelioration of a disability's effect, it cannot be said to be 'necessary.' ").

¶ 21. The duty to accommodate is shaped by the nature of the particular handicap. Salute v. Stratford Greens Garden Apartments, 136 F.3d 293, 301-02 (2d Cir. 1998). In particular, persons with certain handicaps may need to live together in order to share personnel and to reinforce each other's efforts in creating and maintaining a home. Id. at 302; see also Brandt v. Village of Chebanse, Ill., 82 F.3d 172, 174 (7th Cir. 1996) (joint living arrangements are essential for certain groups of handicapped persons who seek to live together for mutual support or to permit full-time care by a staff person). When disabled persons are not able to live independently because of their disability, a group living arrangement with caretakers is one mode of ameliorating the effects of their disability because it enables them to live in a residential setting rather than in an institution. Oconomowoc Residential Programs, 23 F.Supp. 2d at 958. A zoning regulation that restricts or prevents group living arrangements in residential neighborhoods, when applied to persons who need to live in such an arrangement because of their disability, thus results in an unequal opportunity for those persons to live in single-family neighborhoods as compared to persons who do not need to live in a group arrangement in order to enjoy a single-family residential neighborhood. Id. at 958-59; Smith & Lee, 102 F.3d at 795-96.

¶ 22. This court has previously considered the 2,500 foot requirement in the context of the application for permission to build an eight-bed community-based residence for elderly handicapped. "K" Care, Inc. v. Town of Lac du Flambeau, 181 Wis. 2d 59, 63, 510 N.W.2d 697 (Ct. App. 1993). In that case, the town denied the application for an exception to the 2,500 foot distance requirement. We first concluded that the proposed residents, who had various physical and mental infirmities, were handicapped within the meaning of the FHAA, observing that they were "unable to eat, bathe, walk or use a toilet without assistance. In short, they are no longer able to live independently," although none required skilled nursing care. Id. at 67. We then concluded that the town had discriminated by failing to make a reasonable accommodation because the evidence did not support the town's rationale — that granting an exception would undermine the purpose of Wis. Stat. § 62.23(7)(i)1 — and there was no evidence that allowing this home would impose any burden or expense on the town in any way. Id. at 68-70. The purpose of the statute, we explained, was to restrict the density of CLAs in residential neighborhoods in order to preserve the established character of the neighborhood so that residents of the facility "could live in a normal residential setting in a manner similar to other residents of the area rather than in an institutionalized setting." Id. at 69.

¶ 23. We did not expressly state in "K" Care that a reasonable accommodation was required because the proposed residents were not able to live independently due to their disabilities, and the application of the 2,500 foot requirement thus resulted in an unequal opportunity to live in a single-family residential area. It may be that our failure to expressly state this was misleading to the city attorney here. However, we are satisfied that this was the basis for our conclusion that a reasonable accommodation was necessary, and that, consistent with the case law we have discussed above, the obligation to make a reasonable accommodation to the distance requirement arises only when the proposed residents need to live in a CLA because of their disabilities.

¶ 24. Turning to the record in this case, we see no evidence that the proposed residents of the CLA need to live in a CLA because of their disabilities. Indeed, the evidence from the DOC was that it did not make referrals to Tellurian based on disabilities, but rather based on whether a youth is eligible to leave a correctional institution and has the need for independent living skills to reintegrate into the community. There is also no evidence that the boys referred by Dane County Human Services were either removed from their homes or placed at Tellurian because they could not live in a single-family home because of their disability. Finally, although the boys in Tellurian's program may receive treatment for mental health problems from outside providers, the purpose of the program is not to treat the boys' mental health problems; the purpose is to teach them the skills and the personal and social responsibility they need to live independently and successfully.

¶ 25. The City has brought to our attention no case in which a reasonable accommodation to a restriction on a CLA was required when the proposed residents were not persons who were not able to live independently because of their disabilities. And in the many cases we have examined in which a reasonable accommodation was required by the court, the proposed residents were persons who needed to live in a CLA because of their disability. This includes the cases from this court and the Wisconsin federal courts that have considered the 2,500 foot requirement at issue in this case: Oconomowoc Residential Programs, 23 F.Supp. 2d 941 (community based residential facility for developmentally disabled adults); United States v. Village of Marshall, 787 F.Supp. 872 (W.D. Wis. 1991) (group residential facility for persons suffering from mental illness); Tellurian U.C.A.N., Inc. v. Goodrich, 178 Wis. 2d 205, 504 N.W.2d 342 (Ct. App. 1993) (group home for mentally ill persons); "K" Care, 181 Wis. 2d 59. It also includes cases from other jurisdictions that have required reasonable accommodations to similar and other types of zoning regulations or decisions. See, e.g., United States v. City of Chicago Heights, 161 F. Supp. 2d 819 (N.D. Ill. 2001) (group home for persons with mental illness aided by professional staff); Smith & Lee, 102 F.3d 781 (group home for elderly disabled who require ongoing supervision); Thornton v. City of Allegan, 863 F.Supp. 504 (W.D. Mich. 1993) (adult foster care facility for mentally handicapped persons); Horizon House Developmental Servs., Inc. v. Township of Upper Southampton, 804 F.Supp. 683 (E.D. Pa. 1992) (group home for persons with mental retardation), aff'd without opinion, 995 F.2d 217 (3d Cir. 1993).

¶ 26. We conclude that because the proposed residents are not living in a CLA because of their disabilities, the City is not obligated to make a reasonable accommodation to Tellurian in the application of the 2,500 foot requirement. That is, the City has no obligation to do anything other than apply the standards for a conditional use permit in the same way it would if none of the proposed residents had a disability. Bruske-witz argues that had the Common Council done this, it could only have concluded that the standards for the permit were not met, and he asks us to reverse for that reason. However, we cannot say as a matter of law that this is the case. Neither can we say, based on our reading of the transcript, that the Common Council would have made the same decision — to grant the conditional use permit — had it not been advised that the FHAA and the ADA required a reasonable accommodation. The question whether the proposed residents had disabilities within the meaning of the statutes, and, if so, what effect that had on the standard the Common Council was to apply, was the focus of a significant portion of the discussion.

¶ 27. Therefore, we cannot agree with the City's implicit suggestion that we review the record to determine whether the evidence supports granting the permit without regard to the FHAA and the ADA. We are persuaded that the proper course is to reverse and remand to the circuit court with directions that it reverse and remand to the Common Council. The circuit court shall instruct the Common Council to consider Tellurian's application for a conditional use permit by applying the standards for a conditional use permit under Madison, Wis., Zoning Code § 28.12(11)(g)1, 2 and 7 without regard to a reasonable accommodation based on handicap or disability.

By the Court. — Order reversed and cause remanded with directions.

       Wisconsin Stat. § 62.23(7) (i)3 (1999-2000) provides that a CLA with a capacity for eight or fewer persons being served and properly licensed may be located in any residential district. However, § 62.23(7)(i)1 provides:
      (i) Community and other living arrangements. For purposes of this section, the location of a community living arrangement, as defined in s. 46.03(22), a foster home, as defined in s. 48.02(6), a treatment foster home, as defined in s. 48.02(17q), or an adult family home, as defined in s. 50.01(1), in any city shall be subject to the following criteria:
      1. No community living arrangement may be established after March 28, 1978 within 2,500 feet, or any lesser distance established by an ordinance of the city, of any other such facility. Agents of a facility may apply for an exception to this requirement, and such exceptions may be granted at the discretion of the city. Two community living arrangements may be adjacent if the city authorizes that arrangement and if both facilities comprise essential components of a single program.
      Initially, Tellurian sought and was granted an occupancy permit to occupy this house as a CLA for federal inmates on release programs. Bruskewitz filed an action seeking to enjoin Tellurian from operating that CLA on the ground that it would violate Wis. Stat. § 62.23(7)(i)1 because Madison did not have an ordinance that established a lesser distance. We agreed, and affirmed the trial court's granting of an injunction. Bruskewitz v. Tellurian, Inc., No. 98-2531 (Wis. Ct. App. July 8, 1999). Since the time Bruskewitz first filed that action, Madison adopted an ordinance, Madison, Wis., Zoning Code § 28.08(2)(b)11.c (1998), which requires a conditional use permit before a CLA serving not more than eight people may locate within 2,500 feet from another CLA.

       According to the testimony of Tom Groth, the supervisor of the program, the CHIPS cases were either initiated by the county because the youth was in jeopardy due to alcohol, sexual, or physical abuse in his home, or the youth's parents initiated the case because their child was uncontrollable.

       The pertinent standards are MadisoN, Wis., Zoning Code § 28.12(11)(g)1, 2 and 7:
      1. That the establishment, maintenance or operation of the conditional use will not he detrimental to or endanger the public health, safety, comfort or general welfare.
      2. That the uses, values and enjoyment of other property in the neighborhood for purposes already established shall be in no foreseeable manner substantially impaired or diminished by the establishment, maintenance or operation of the conditional use.
      7. That when applying the above standards to an application by a community living arrangement the City Plan Commission shall:
      a. Bear in mind the City's general intent to accommodate community living arrangements.

        b. Exercise care to avoid an over-concentration of community living arrangements which could create an institutional setting and seriously strain the existing social structure of a community. Considerations relevant for this determination are:
      i. The distance separating the proposed community living arrangement from other such facilities.
      ii. The capacity of the community living arrangement and the percent the facility will increase the population of the community.
      iii. The total capacity of all the community living arrangements in the community.
      iv. The impact on the community of other community living arrangements.
      v. The success or failure of integration into communities of other community living arrangements operated by the individual or group seeking the conditional use permit.
      vi. The ability of the community to meet the special needs, if any, of the applicant facility.

       Because the City does not argue that any protected class under the FHAA other than that of handicap is involved, we confine our analysis under the FHAA accordingly.

       "Handicap," as used in the FHAA, is further defined in the Code of Federal Regulations, 24 C.F.R. § 100.201(a)(2) (2001), as:

        Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of a controlled substance) and alcoholism.

       Unless otherwise indicated, when either "handicap" or "disability" is used alone in this opinion, it also encompasses the other term.

       42 U.S.C. § 3604(f)(9) provides in full:
      Nothing in this subsection requires that a dwelling he made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.

       We also considered the 2,500 feet distance requirement in Tellurian U.C.A.N., Inc. v. Goodrich, 178 Wis. 2d 205, 208, 504 N.W.2d 342 (Ct. App. 1993). There a village had denied an exception to the requirement for a group home for mentally ill persons. We upheld the trial court's finding that the village did not intentionally discriminate against the mentally handicapped, but we held that the village failed to make a reasonable accommodation because there was no evidence of any adverse impact if the exception were allowed. Id. at 215-17.