author: BROWN, J.

text:
    Laverne Haase, Plaintiff-Appellant, Larry Braatz, Norb Braun, Fidel Castillo, Gregory Ebel, Lawrence Ferge, Leon Fuerst, Carol Guyette, Estate of Ray Guyette, David Hamilton, Floyd Hanson, Jerald Heuer, Daniel Janiak, Rick Knudsen, Wesley Kupsky, Sr., James Mohrman, James Maroney, Terry Olejnik, Robert Parry, Donald Quaintance, Delores Radtke, Estate of Marvin Radtke, Candelario Rodriguez, Dale Sittman, Alois Steger, John Stilp, William Surprise, Jacob Vertz, Richard Weber and Arthur Zinkel, Plaintiffs, v. Badger Mining Corporation, Defendant-Respondent, Mine Safety Appliances Company, Minnesota Mining & Manufacturing, North Safety Products Company, The Norton Company, Textron Inc., Liberty Mutual Insurance Company, Travelers Casualty and Surety, American Optical Corporation, Dalloz Safety Inc. and Employers Insurance Company of Wausau, Defendants.
    Court of Appeals

      No. 02-1681.

      Oral argument May 7, 2003.

    Decided August 6, 2003.

      2003 WI App 192
    (Also reported in 669 N.W.2d 737.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Louis L. Plotkin and Rodney P. Vincent of Gertler,; Gertler, Vincent & Plotkin, LLP of New Orleans and Ronald L. Lampe and Brian Hamill of Dempsey, Williamson, Lampe, Young, Kelly & Hertel, LLP of Oshkosh. There was oral argument by Louis L. Plotkin and Ronald L. Lampe.

      On behalf of the defendant-respondent Badger Mining Corporation, the cause was submitted on the brief of L. John Argento and Cathy R. Gordon of Dickie, McCamey & Chilcote, EC. of Pennsylvania and Michael J. Cohen and Steven F. Stanaszak of Meissner, Tierney, Fisher & Nichols, S.C. of Milwaukee. There was oral argument by Cathy R. Gordon.

    Before Brown, Nettesheim and Snyder, JJ.

       Petition to review granted 1-23-04.

   BROWN, J.

¶ 1. The factual predicate of this case mirrors that of Bergfeld v. Unimin Corp., 319 F.3d 350 (8th Cir. 2003). There, a foundry worker who had developed silicosis brought a products liability action against the supplier of silica sand that sold sand to the foundry, alleging that the supplier failed to provide the foundry and the worker with adequate information about the risks of silicosis due to exposure to silica dust. Id. at 353-54. The Eighth Circuit Court of Appeals held that the silica sand supplier had no duty to warn the foundry of the sand's dangerous propensities where the foundry was a sophisticated user of the sand and it should have been aware of its dangerous characteristics. Id. at 352. Here, Laverne Haase contends that Badger Mining Corporation, a supplier of silica sand, had a duty to provide Neenah Foundry, his employer, with instructions on how to safely use the silica sand. He argues that Bergfeld and its discussion of the sophisticated user defense are inconsistent with Wisconsin law and do not apply to this case. We hold that the sophisticated user defense is available in Wisconsin. We adopt and apply the rationale of Bergfeld to this case and affirm the trial court's dismissal of Haase's negligence claim on that basis.

¶ 2. Haase also argues that the trial court erred in applying Restatement (Third) of Torts § 5 (1998) and in dismissing his strict liability claim. We conclude that the trial court properly applied § 5 to Haase's strict liability claim and affirm its decision immunizing Badger from strict liability. Accordingly we uphold the trial court's order granting Badger's motion to dismiss for insufficiency of the evidence.

¶ 3. The facts for the purposes of this appeal are as follows. It is undisputed that Haase has silicosis. Silicosis is caused by inhaling tiny silica particles that result from silica sand and is a devastating disease. It is also uncontested that Haase was exposed to harmful silica particles while working at the Neenah Foundry.

¶ 4. Haase began working at the Neenah Foundry in 1955. Haase held various jobs before being assigned to the rollover molding line in the late 1950s or early 1960s. He worked on the rollover molding line until approximately 1993. He also worked a job that involved cleaning burned, dried and fine sand from the basement area. He described the cleanup job as the dirtiest job he held during his forty years at Neenah. He also cleaned the pits every day for about a year. He wore a respirator while performing this work, and needed to change the filters often because they would become clogged with dirt and dust.

¶ 5. Haase then worked as a stand grinder from 1993 until his retirement in 1996. As a stand grinder, he was substantially exposed to harmful silica particles. Due to the silicosis hazard, Neenah required Haase to wear a respirator. Haase wore the government-approved 3M 8710 respirator Neenah issued to him.

¶ 6. Badger supplied silica sand to Neenah from 1980 to 1996, and it is uncontested that the silica particles to which Haase was exposed from 1993 until 1996 were from Badger's foundry sand. The sand which Badger supplied to Neenah was mined from a natural sandstone deposit, washed to remove clay and other impurities, dried and cooled, and then graded according to the grain size requested by the foundry. Nothing done in the mining, washing or milling process changed the chemical composition of the sand or otherwise altered its properties.

¶ 7. Badger issued warnings concerning potential health hazards associated with inhaling respirable silica on its invoices and other materials that accompanied bulk shipments. Also, beginning in 1988, and certain years thereafter, Badger sent its customers Material Safety Data Sheets (MSD Sheets) for its foundry sand. These data sheets warned of the dangers of the product and instructed how the product could be used safely in light of the silicosis hazard. Badger instructed that "an approved dust respirator" should be used if the air contained five times or less of the permissible exposure limit for respirable silica. "[A]n approved dust respirator" is a respirator that has been approved by the federal government for use against certain types of dust. The National Institute for Occupational Safety and Health (NIOSH) is the federal agency that issues such approvals. There are different types of "approved dust respirators." One example is the "approved dust respirator" worn by Haase from 1993 to 1996. Another type ofapproved dust respirator" is one equipped with a high-efficiency filter, which provides a much higher degree of protection than a conventional filter.

¶ 8. In 1992, NIOSH issued two Alerts dealing with the proper type of respiratory protection for silica dust. In these Alerts, NIOSH recommended that only approved respirators equipped with high-efficiency filters should be used where the air contains five times or less of the permissible exposure limit for respirable silica. In 1994, NIOSH again recommended, this time in a Pocket Guide to Industrial Hazards, that an approved respirator with a high-efficiency filter should be used for up to five times the permissible exposure limit, for respirable silica. Although Badger was aware of the NIOSH recommendations, Badger did not amend its MSD Sheets to reflect the NIOSH recommendations. The MSD Sheets instructed that an employee should wear "an approved dust respirator."

¶ 9. Haase filed suit against Badger and several respirator manufacturers, alleging that he contracted silicosis as a result of his workplace exposure to silica sand at Neenah. Haase asserted claims grounded in strict products liability and negligence.

¶ 10. At trial, two of Neenah's former safety directors testified, Dennis O'Brien and Thomas Shallow. O'Brien testified that Neenah was well aware of the hazards attendant to the industry. O'Brien stated that he and other managers were encouraged and trained to keep up to date on safety issues in foundry settings through attendance at government-sponsored seminars and review of literature from government agencies. O'Brien further testified that he did not rely on Badger for information concerning control of silica hazards' in the foundry or methods of protecting Neenah's employees from silica exposure. Specifically, he testified that Neenah never relied on Badger for information or recommendations regarding ventilation issues, air monitoring, engineering or administrative controls, the selection of respirators, or advice concerning what areas of the plant should be designated for mandatory respirator use. O'Brien testified that he made the decision to purchase the respirator Haase wore from 1993 to 1996, the 3M 8710, after consulting with 3M representatives. He stated that he did not rely on Badger with regard to the decision, or seek its advice about this respirator. He testified that the decision about when and where to use respirators in the foundry was made by Neenah without input from Badger or reliance on any information provided by Badger. He also testified that he believed that the 3M 8710 respirator was protecting Haase from the silica dust generated by Badger's product.

¶ 11. Shallow testified that he considered Neenah to be knowledgeable, technologically advanced and a leader in the foundry industry, due in part to the various individuals in Neenah's management who are involved with the American Foundrymen's Society (AFS). As the trial court noted, Shallow indicated that he did not ever recall receiving data sheets from Badger containing information regarding the respirators, but that he believed he had reviewed Badger's MSD Sheets while at Neenah. Shallow also testified that it was his practice to look at the MSD Sheets Badger issued and compare them to prior data sheets to see if Badger had made any changes. He testified that the two primary uses in looking at amended data sheets were the hazards presented by the product and how to guard against those hazards through personal protective equipment, including through respirators. He then stated that he did not expect Badger's MSD Sheets to be 100% accurate and that if he had questions about the accuracy of the data sheets, he would call the local Occupational Safety and Health Administration (OSHA) office. He stated that he did not know Badger's instructions regarding respirators were wrong and that he believed that the 3M 8710 respirator was protecting Haase from the silica dust. Shallow was never asked if Neenah relied on the instructions Badger gave Neenah.

¶ 12. Haase also called two expert witnesses to testify at trial. Dr. Yehia Hammad, Haase's liability expert, and Dr. Henry Anderson, Haase's medical expert, both conceded that silica sand, in its natural form, is not dangerous. Dr. Hammad testified that when Badger's foundry sand leaves its facilities, it cannot cause silicosis because the granules are too large to be inhaled into the lungs. Similarly, Dr. Anderson testified that even a very small grain of sand cannot get into the lungs; it has to be very fine and so small that it cannot be seen with the naked eye. Both experts acknowledged that in order for the sand to be respirable and, therefore, potentially harmful to the lungs, it needed to be broken into smaller particles, which occurs during the foundry's manufacturing processes. Dr. Hammad also testified that the respirator Haase used leaked approximately fifty percent of the harmful silica particles that were in and around Haase at any particular point in time. He stated that if a respirator with a high-efficiency filter had been used; only three particles out of 10,000 would have leaked through because such filters are 99.97% effective.

¶ 13. At the close of Haase's case-in-chief, Badger moved for dismissal, pursuant to Wis. Stat. § 805.14(3) (2001-02), on the grounds of insufficiency of the evidence. Badger gave the trial court a copy of the district court opinion in Bergfeld, which had been released (the appellate opinion in Bergfeld was obviously released at a later date). The trial court concluded that, considering all credible evidence and reasonable infer-enees in the light most favorable to Haase, there was no credible evidence to sustain a finding in Haase's favor on any of his claims.

¶ 14. Relying on the Bergfeld district court opinion, the trial court determined that Neenah was a sophisticated user of Badger's sand, noting that it had long been aware of, and taken steps to ameliorate, the risk of silicosis to its employees. The court determined that Badger could not be found liable for failing to warn Haase of potential silica hazards associated with its sand because it legitimately expected Neenah, a sophisticated user of the sand, to institute the necessary safety precautions based on its specific use of Badger's sand. The court noted that as an employer, Neenah was obligated to provide a safe workplace for its employees, and was in a far better position than a remote sand supplier to ascertain what employees were at risk for exposure to silica dust and to warn these employees of such risks. Accordingly, the court held that Badger had no duty to warn Neenah of silica hazards.

¶ 15. Relying, in part, on Dr. Anderson's testimony and applying Restatement (Third) of Torts § 5 (1998), the trial court also rejected Haase's strict products liability claims against Badger. Finally, the court concluded that even if Badger had a duty to warn and that duty was somehow breached, Haase failed to establish a causal effect between the lack of a warning and the injuries or harm he suffered. The court determined that Haase's proof against Badger as to causation rested entirely on conjecture and speculation and the jury should not and would not be asked to speculate as to causation. Haase appeals.

¶ 16. When a motion for a directed verdict based on the sufficiency of the evidence is made in the trial court, that motion shall not be granted unless the court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom it is made, there is no credible evidence to sustain a finding in favor of such party. Weiss v. United Fire and Cas. Co., 197 Wis. 2d 365, 388, 541 N.W.2d 753 (1995). On review, this court must apply the same standard and a trial court will not be reversed unless the decision is clearly wrong. Id. at 388-89. This "clearly wrong standard and the "any credible evidence standard are not two different standards, but only flip sides of the same coin. A trial court is "clearly wrong when it grants a motion for a directed verdict despite the existence of credible evidence to the contrary.

¶ 17. Haase first argues that the trial court erred in holding that Badger did not have a duty to warn Neenah about the silicosis hazard inherent in Badger's product or the steps necessary to avoid this hazard. Haase contends that the trial court erred in concluding that the sophisticated user defense is available in Wisconsin, arguing that Bergfeld and the sophisticated user defense are contrary to well-established Wisconsin products liability law. In the alternative, Haase argues that even if we adopt Bergfeld, it is "easily distinguishable" from this case. We, therefore, begin our discussion with an analysis of the Bergfeld decision.

¶ 18. Bergfeld worked in a foundry and developed silicosis as a result of many years of exposure to silica sand on the job. Bergfeld, 319 F.3d at 352. The MSD Sheets the supplier had provided described silica as "nontoxic." Id. Bergfeld filed a products liability claim against the foundry. Id. Bergfeld claimed that the foundry's supplier of silica sand failed to warn either him or the foundry of the risk of silicosis associated with exposure to silica dust concentrations below the maximum level permitted by OSHA regulations, which he conceded the foundry had knowledge of, but above the maximum level recommended by NIOSH. Id. at 353. The Eighth Circuit Court of Appeals concluded that the foundry was a sophisticated user and, as a matter of law, the bulk supplier had no duty to warn the foundry of the risks posed by excessive exposure to silica sand. Id. at 352.

¶ 19. In reaching its conclusion, the court explained that Iowa had adopted § 388 of the Restatement (Second) of Torts (1965) regarding a manufacturer's duty to warn of the dangers associated with the use of products. Bergfeld, 319 F.3d at 353. The court noted that § 388 provides:

One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

Bergfeld, 319 F.3d at 353; see also Restatement (Second) of Torts § 388 (1965). The court explained that subsec. (b) embodies the sophisticated user doctrine, which had been described as imposing "no duty to warn if the user knows or should know of the potential danger, especially when the user is a professional who should be aware of the characteristics of the product." Bergfeld, 319 F.3d at 353 (citations omitted).

¶ 20. The court then rejected Bergfeld's argument that the foundry was insufficiently sophisticated because it did not know of and did not implement safeguards to reduce exposure levels to the NIOSH recommended level. Id. at 354. The court reasoned that the foundry's manager of industrial hygiene at the time served as the foundry's representative to the AFS and had reviewed NIOSH publications and that another industrial hygienist at the foundry had knowledge of the NIOSH recommendation through professional publications. Id. The court concluded that the foundry was familiar with the NIOSH recommendation, but simply chose not to adopt it. Id.

¶ 21. In the instant case, the first issue we must address is whether Bergfeld and its sophisticated user defense are good law in Wisconsin. Like Iowa, Wisconsin has adopted Restatement (Second) of Torts § 388 (1965), which, as the Eighth Circuit recognized, "embodies the sophisticated user doctrine." Bergfeld, 319 F.3d at 353; see also Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87, ¶ 58, 236 Wis. 2d 435, 613 N.W.2d 142. Further, after reviewing Wisconsin cases discussing § 388, the federal district court for the western district of Wisconsin has recognized that it is likely that the Wisconsin Supreme Court would adopt some form of the sophisticated user doctrine. Nigh v. Dow Chem. Co., 634 F. Supp. 1513, 1517 (W.D. Wis. 1986). This was, in part, because it is well established in Wisconsin that "there is no duty to warn members of a trade or profession about dangers generally known to the trade or profession." Shawver v. Roberts Corp., 90 Wis. 2d 672, 686, 280 N.W.2d 226 (1979); see also Nigh, 634 F. Supp. at 1517 (concluding that Shawver, 90 Wis. 2d at 686, supported its determination that the sophisticated user defense was consistent with Wisconsin law). Finally, we note that sound policy reasons support the adoption of the sophisticated user defense. First, it places the duty to warn on the party arguably in the best position to ensure workplace safety, the purchaser-employer. Second, the burden falls upon the party in the best position to know of the product's potential uses— thereby enabling that party to communicate safety information to the ultimate user based upon the specific use to which the product will be put. For the foregoing reasons, we adopt Bergfeld and its discussion of the sophisticated user defense.

¶ 22. Haase argues that Bergfeld is easily distinguishable from this case for two reasons. Haase claims that in Bergfeld, there was no question as to whether the foundry was a sophisticated user and, here, there was credible evidence demonstrating that Neenah was not a sophisticated user. Next, Haase asserts that unlike the sand supplier in Bergfeld, Badger voluntarily assumed the duty to provide accurate safe-use instructions by giving Neenah data sheets containing instructions on the type of respirator necessary to avoid silicosis and that credible evidence in the record demonstrates that Neenah relied on those instructions in making its decisions on which respirators to use. We address these arguments in turn.

¶ 23. Haase submits that unlike the foundry in Bergfeld, Neenah was insufficiently sophisticated. Haase concedes that Neenah possessed general knowledge concerning silicosis and the need for respirators, but was not sophisticated enough to know that the respirators recommended by Badger offered insufficient levels of protection. The record, however, belies Haase's assertions.

¶ 24. From our review of the record, it is clear that Neenah had extensive knowledge of the hazards of inhaling silica dust, the disease of silicosis and the proper dust control methods. The record demonstrates that Neenah is a knowledgeable employer within a knowledgeable industry. Neenah has been in the foundry business for more than 120 years. During much of that time, Neenah managers have been members of the AFS and have frequently attended AFS meetings and seminars where they received literature about foundry hazards and worker protection. Both former safety directors who testified at trial acknowledged that Neenah was well aware of the hazards attendant to the industry. Also, Shallow testified that he considered Neenah to be knowledgeable, technologically advanced and a leader in the foundry industry. Furthermore, the record demonstrates that Neenah dedicated significant time and resources towards keeping abreast of industry safety standards and changes in government regulations; improving ventilation and dust collection systems in the foundry; purchasing respiratory protective equipment, including air-fed helmets and high-efficiency filter respirators for employees working in areas where silica levels could not be reduced below regulations; training employees in recognizing hazards and protecting themselves from those hazards; and medically monitoring employees who had been exposed to silica. The evidence in the record shows that, for whatever reason, Neenah chose not to require its employees to wear the high-efficiency respirators, but it did not show that Neenah was unfamiliar with them or that Neenah was unsure of how to adequately protect its workers. No credible evidence has been provided to the contrary. We therefore conclude that Neenah was a sophisticated user of silica sand and, as a consequence, it was entirely reasonable for Badger to expect that Neenah would institute the necessary safety precautions based on its own specific use of Badger's sand.

¶ 25. Next, Haase asserts that by providing Neenah with the MSD Sheets, Badger had voluntarily assumed the duty to provide accurate safe-use instructions and Neenah relied on Badger's MSD Sheets in making its decisions on which respirators to use. However, once again, Haase fails to identify any facts introduced at trial that support his assertion. There is no evidence that Badger took it upon itself to give specific guidance on the kind of respirator Neenah was to use. The MSD Sheets simply warned Neenah of the dangers of silicosis and advised that its employees should wear government-approved respirators. Further, O'Brien, the safety coordinator and safety director for over a decade, testified that Neenah never relied on Badger in any way in making decisions to use certain respirators. O'Brien testified that he made the decision to purchase the 3M 8710, the respirator worn by Haase between 1993 and 1996, after consulting with 3M representatives. He did not speak with Badger about the decision or seek its advice about the government-approved respirator. Furthermore, contrary to Haase's assertions, Shallow never testified that Neenah actually relied on the information from Badger in making its determinations about respirators. Although he indicated that he did review the MSD Sheets Badger provided, Shallow stated that he did not expect the MSD Sheets to be 100% accurate when he received them, and if he had any questions about the accuracy of the MSD Sheets, he would contact the local OSHA office. We, therefore, reject Haase's attempts to distinguish this case from Bergfeld and conclude that the trial court was not clearly wrong in granting Badger's motion for a directed verdict on his negligence claims.

¶ 26. We now move from the negligence cause of action to the strict liability claim. Haase argues that the trial court erred in holding that Badger was immune from a strict products liability claim pursuant to Restatement (Third) of Torts § 5 (1998). He contends that the trial court should have applied the product-liability test embodied in Restatement (Second) of Torts § 402A (1965). Haase argues that had the trial court applied § 402A, as is required by law, the court would have come to a different conclusion. He submits that the foundry sand Badger supplied to Neenah was defective and unreasonably dangerous from the standpoint of an ordinary consumer.

¶ 27. Even if we apply Restatement (Second) of Torts § 402A (1965), as Haase asks us to do, his strict liability claim would not succeed. To establish a claim under § 402A, a plaintiff must prove:

(1) that the product was in a defective condition when it left the possession or control of the seller, (2) that it was unreasonably dangerous to the user or consumer, (3) that the defect was a cause of. . . the plaintiffs injuries or damages, (4) that the seller engaged in the business of selling such product... and (5) that the product was one which the seller expected to and did reach the user or consumer without substantial change in the condition it was when he [or she] sold it.

Green v. Smith & Nephew AHP, Inc., 2001WI109, ¶ 23, 245 Wis. 2d 772, 629 N.W2d 727. The defective condition and unreasonably dangerous requirements, while separate, are based on the hypothesis that the product is dangerous to an extent beyond that which would be contemplated by an ordinary consumer. Restatement (Second) of Torts § 402A cmt. i (1965); see also Green, 245 Wis. 2d 772, ¶ 29.

¶ 28. Although Haase attempts to belittle the trial court for comparing the silica sand Badger sold to Neenah to the sand used in sand boxes or on golf courses, the bottom line is that the sand Badger supplies is a raw material and in its natural form is not unreasonably dangerous. According to Dr. Anderson, the plaintiffs own expert, a grain of silica sand is too large to get into the lungs and the sand particles must be made very small or fine in order to become respirable and harmful. Dr. Anderson testified that the sand is fractured by the foundry's own processing of the sand and it is this fracturing that produces the smaller, finer particles that make the sand dangerous. Badger merely takes the sand from the earth, washes the sand, sizes the sand and delivers it to its customers. Haase points us to no evidence in the record demonstrating that the sand is in any way dangerous at the time it is delivered by Badger. Accordingly, from the evidence in the record, we cannot see how the application of Restatement (Second) of Torts § 402A (1965) would have changed the outcome of the case.

¶ 29. Furthermore, we are convinced that the trial court was not in error when it adopted and applied Restatement (Third) of Torts § 5 (1998). Contrary to Haase's assertions, § 5 is the logical extension of Restatement (Second) of Torts § 402A (1965). Section 5 is titled "Liability of Commercial Sellers or Distributors of Product Components For Harm Caused by Products Into Which Components Are Integrated" and provides:

One engaged in the business of selling or otherwise distributing product components who sells or distributes a component is subject to liability for harm to persons or property caused by a product into which the component is integrated if:
(a) the component is defective in itself, as defined in this Chapter, and the defect causes the harm; or
(b)(1) the seller or distributor of the component substantially participates in the integration of the component into the design of the product; and
(2) the integration of the component causes the product to be defective, as defined in this Chapter; and
(3) the defect in the product causes the harm.

Comment c to § 5 states that the term "product components" includes raw materials, such as sand. The comment recognizes that a basic raw material cannot be defectively designed. "Inappropriate decisions regarding the use of such materials are not attributable to the supplier of the raw materials but rather to the fabricator that puts them to improper use .... Accordingly, raw materials sellers are not subject to liability for harm caused by defective design of the end-product." Restatement (Third) of Torts § 5 cmt. c (1998). The comment then applies the same considerations to failure-to-warn claims stating that "[t]o impose a duty to warn would require the seller to develop expertise regarding a multitude of different end-products and to investigate the actual use of raw materials by manufacturers over whom the supplier has no control. Courts uniformly refuse to impose such an onerous duty to warn." Id. This mirrors § 402A's defective condition and unreasonably dangerous elements, which require the product to be dangerous beyond the extent contemplated by the ordinary consumer who purchases it. In essence, § 5 recognizes that a raw material such as sand is inherently safe in its design and is not an unreasonably dangerous product.

¶ 30. Haase notes that in Green, 245 Wis. 2d 772, ¶¶ 72-73, our supreme court refused to adopt § 2(b) of the Restatement (Third) of Torts (1998) and implies that this translates into an outright rejection on the part of the supreme court of the Restatement (Third) of Torts. Green cannot be read so broadly. In Green, the court was asked to adopt Restatement (Third) of Torts § 2(b), which incorporates an element of foreseeability of the risk of harm in and a risk-benefit test in products liability analysis. Green, 245 Wis. 2d 772, ¶ 72. The court rejected § 2(b) as being fundamentally at odds with current Wisconsin products liability law, which analyzed claims using the consumer-contemplation test set forth in § 402A. Green, 245 Wis. 2d 772, ¶ 72. However, as we have explained, the principles and tenets embodied in Restatement (Third) of Torts § 5 (1998) complement those of Restatement (Second) of Torts § 402A (1965). Hence, we conclude that the trial court correctly applied § 5.

¶ 31. Restatement (Third) of Torts § 5(a) and (b)(1) are written in the disjunctive and essentially provide exposure for a supplier when the product is defective or when the seller substantially participates in the end-product. As is clear from our previous discussion, neither of these two elements is present here. The silica sand Badger supplies Neenah is a naturally occurring raw material. Further, Badger does not participate in Neenah's processing of the silica sand. Accordingly, we uphold the trial court's dismissal of Haase's strict liability claim.

By the Court. — Order affirmed.

        Bergfeld v. Unimin Corp., 226 F. Supp. 2d 970 (N.D. Iowa 2002).

       The American Foundrymen's Society is a foundry trade organization that was established in the United States more than 100 years ago. Since its inception, it has prepared and distributed literature addressing foundry hazards, including silica exposure, to its members. The widespread knowledge of silicosis as a work-related disease was further substantiated at trial by exhibits related to a National Silicosis Conference held in 1937. The Conference featured the film, "Stop Silicosis." According to Badger, it depicted men working in various dusty trades, including foundries, and described how workers could be protected from overexposure to silica. Committees were formed at the Conference and directed to address the medical, engineering, economic and administrative aspects of this silica-related disease that was affecting many of the country's workers. The National Silicosis Conference Summary Report released in 1937 directly addressed silicosis prevention in industrial settings, recommending measures for employers to take on behalf of their workers. Among the recommendations were workplace surveys, compliance with laws and regulations, respiratory protection and employee safety training.


source: Caselaw Access Project

author: ANDERSON, PJ.

license: Public Domain

text:
    In re the Commitment of Ray A. Schiller: State of Wisconsin, Plaintiff-Respondent, v. Ray A. Schiller, Respondent-Appellant.
    Court of Appeals

      No. 02-2963.

      Submitted on briefs May 23, 2003.

    Decided August 6, 2003.

    2003 WI App 195
    (Also reported in 669 N.W.2d 747.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Jack E. Schairer, assistant state public defender, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Eileen W. Pray, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Anderson, PJ., Nettesheim and Snyder, JJ.
   ANDERSON, PJ.

¶ 1. Ray A. Schiller appeals a trial court order finding no probable cause to conclude that Schiller was no longer a sexually violent person and denying his Wis. Stat. ch. 980 (2001-02) petition for discharge. Schiller argues that the trial court erroneously denied his right to a jury trial on the issue of discharge when it found no probable cause. He argues that his expert's report and testimony established probable cause that he was not a sexually violent person and that therefore a trial was required on the petition for discharge. We disagree and, therefore, affirm the trial court.

¶ 2. Schiller petitioned for supervised release under Wis. Stat. § 980.08 and petitioned by default for discharge without the secretary's approval under Wis. Stat. § 980.09(2). For purposes of judicial economy, the trial court heard Schiller's petition for supervised release and his petition for discharge at the same eviden-tiary hearing on October 9, 2002. The only evidence before the court was the report and testimony of each side's expert. Schiller argued that the opinion of his expert, Dr. Diane Lytton — which stated that Schiller did not seem to lack volitional control — established probable cause that Schiller was not a sexually violent person and that this opinion established that a trial was required on his petition for discharge.

¶ 3. Specifically, Dr. Lytton testified that during her review of records and other reports and her interview with Schiller, she "found no evidence that would indicate he had any kind of mental disorder or mental impairment that would affect his volitional control." She stated:

[Schiller] apparently chose to offend, but that was a choice. My impression of him was that those — that was a choice, choices that he made, that he didn't have — you know, he was not an out-of-control individual, he wasn't psychotic, he didn't have some kind of a brain injury that affected his behavior. So, in my opinion those were choices that he made.

¶ 4. Dr. Lytton also explicitly concluded in her report that Schiller was a pedophile:

In my opinion, to a reasonable degree of psychological certainty, Mr. Schiller has Pedophilia. That mental disorder, as expressed in Mr. Schiller, likely predisposes him to commit sex offenses against children. A comprehensive risk analysis led to opinions that he is likely at high risk to commit another such offense, and that he continues to require a secure setting to manage this risk. Sex offender treatment should be completed prior to consideration for supervised release.

¶ 5. The State disagreed that probable cause was established by Dr. Lytton's opinion. It presented the expert report and testimony of Dr. Christopher Snyder, a forensic clinical psychologist with the Department of Health and Family Services evaluation unit at the Sandridge Secure Treatment Center. Dr. Snyder's report and testimony were based on review of materials and an interview with Schiller, as well as periodic re-examinations of Schiller. Like Dr. Lytton, Dr. Snyder diagnosed Schiller to be a pedophile. Specifically, he testified that Schiller is "pedophilic. . . sexually attracted to females Non-exclusive Type." In his report, Dr. Snyder summarized his findings as follows:

Mr. Schiller is diagnosed with Pedophilia, Sexually Attracted to Females, Nonexclusive Type, which is a mental disorder, acquired or congenital, that affects his emotional or volitional capacity, and predisposes him to commit sexually violent acts as defined by Chapter 980. At this time, Mr. Schiller continues to show substantial probability that he will commit another sexually violent offense.

¶ 6. After the hearing, the trial court denied Schiller's petition for supervised release under Wis. Stat. § 980.08. It also denied his petition for discharge under Wis. Stat. § 980.09(2), finding no probable cause to conclude that Schiller was no longer a sexually violent person. Although Schiller's notice of appeal states that he appeals both rulings of the trial court, his brief addresses only the denial of his petition for discharge. We decline to address arguments insufficiently developed or unsupported by legal authority. Reiman Assocs., Inc. v. R/A Adver., Inc., 102 Wis. 2d 305, 306 n.1, 306 N.W.2d 292 (Ct. App. 1981) (an issue raised but not briefed or argued is deemed abandoned). Accordingly, we address Schiller's arguments only as they relate to the denial of his petition for discharge.

¶ 7. On appeal, Schiller argues that sufficient facts were introduced at the October 9, 2002 hearing to establish probable cause and, thus, to warrant a jury trial on the issue of discharge. We disagree.

¶ 8. We must segregate factual determinations from conclusions of law and apply the appropriate standard of review to each. State v. Thayer, 2001 WI App 51, ¶ 22, 241 Wis. 2d 417, 626 N.W2d 811. While findings of fact will not be set aside unless clearly erroneous, the application of these facts to a legal standard, such as probable cause, is a question of law that we review independently of the trial court. Id.

¶ 9. The issue is whether the trial court erroneously denied Schiller a jury trial on the issue of discharge when it found no probable cause to establish that he was no longer a sexually violent person. We conclude that Dr. Lytton's report and testimony do not rise to the level of probable cause and therefore the trial court did not err when it found no probable cause to establish that Schiller was no longer a sexually violent person. In other words, probable cause that a detainee is no longer a sexually violent person is not demonstrated by an expert's conclusion that a detainee has the ability to control his or her behavior.

¶ 10. Although Dr. Lytton's report expresses her opinion that Schiller "has Pedophilia" and her opinion that this diagnosis "predisposes him to commit sex offenses against children," she nonetheless seems to misinterpret the phrase "serious difficulty in controlling behavior" as this phrase has been used by our courts. Dr. Lytton's testimony appears to equate "serious difficulty in controlling behavior" with a person's inability to make choices:

[Schiller] apparently chose to offend, but that was a choice. My impression of him was that those — that was a choice, choices that he made, that he didn't have — -you know, he was not an out-of-control individual, he wasn't psychotic, he didn't have some kind of a brain injury that affected his behavior. So, in my opinion those were choices that he made.

¶ 11. However, a "serious difficulty in controlling behavior" is not about whether a person has the ability to make choices according to the United States Supreme Court, which recently addressed the constitutional requirements substantively limiting the civil commitment of a dangerous sexual offender in Kansas v. Crane, 534 U.S. 407, 409 (2002). The Crane Court specifically recognized the fact that "most severely ill people — even those commonly termed 'psychopaths'— retain some ability to control their behavior. Insistence upon absolute lack of control would risk barring the civil commitment of highly dangerous persons suffering severe mental abnormalities." Id. at 412 (emphasis added; citations omitted).

¶ 12. The Crane Court further indicated that we must not only consider whether the person has the ability to make choices, but the degree to which those choices are driven by a mental disorder:

[SJerious difficulty in controlling behavior... when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.

Id. at 413.

¶ 13. Furthermore, the Crane Court went on to hold that pedophilia is a mental disorder that by definition includes a diagnosis of lack of control:

[PJedophilia — a mental abnormality that critically involves what a lay person might describe as a lack of control. DSM-IV 571-572 (listing as a diagnostic criterion for pedophilia that an individual have acted on, or been affected by, "sexual urges" toward children).

Crane, 534 U.S. at 414.

¶ 14. The Wisconsin Supreme Court's opinion in State v. Laxton, 2002 WI 82, 254 Wis. 2d 185, 647 N.W2d 784, cert. denied, Laxton v. Wisconsin, 123 S. Ct. 870 (U.S. Jan. 13, 2003), dovetails the opinion of the United States Supreme Court in Crane. Laxton involved a constitutional challenge to the sexually violent person commitment law (Wis. Stat. ch. 980 (1997-98)). Laxton, 254 Wis. 2d 185, ¶ 1. There, the Wisconsin-Supreme Court held that a separate finding of serious difficulty in controlling behavior is not constitutionally required and that the requisite proof of lack of control is established when the nexus between a person's mental disorder and dangerousness has been established:

[W]e conclude that such a civil commitment does not require a separate finding that the individual's mental disorder involves serious difficulty for such person to control his or her behavior. The requisite proof of lack of control is established when the nexus between such person's mental disorder and dangerousness has been established. Specifically, we conclude that evidence showing that the person's mental disorder predisposes such individual to engage in acts of sexual violence, and evidence establishing a substantial probability that such person will again commit such acts, necessarily and implicitly includes proof that such person's mental disorder involves serious difficulty in controlling his or her behavior. Such evidence distinguishes such a person from the dangerous but typical recidivist.

Id., ¶ 2 (emphasis added).

¶ 15. Finally, our decision is supported by the fact that the conclusions of both Dr. Lytton and Dr. Snyder reveal substantial agreement in the areas our courts have held to be determinative in such an inquiry. First, both experts agreed with the United States Supreme Court's definition of pedophilia — each testifying that one diagnosed with pedophilia is predisposed to commit acts of sexual violence against children. Additionally, they both concurred that Schiller continues to be afflicted with pedophilia, that this pedophiliac condition predisposes him to commit acts of sexual violence, and that he is substantially probable to commit acts of sexual violence in the future. Moreover, both experts determined that Schiller had not completed sufficient treatment to be safely released to the community on supervised release.

¶ 16. Schiller did not demonstrate probable cause that he was no longer a sexually violent person and therefore he was not entitled to a jury trial. The trial court did not err in denying his petition for discharge.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Wisconsin Stat. § 980.03 provides certain rights to a person who succeeds in establishing probable cause that he or she is no longer a sexually violent person, one of which is the right to a jury trial if requested. See also Wis. Stat. § 980.09(2). This section provides in relevant part:
      (3) The person who is the subject of the petition, the person's attorney, the department of justice or the district attorney may request that a trial under s. 980.05 be to ajury of 12. A request for a jury trial shall he made as provided under s. 980.05. Notwithstanding s. 980.05(2), if the person, the person's attorney, the department of justice or the district attorney does not request a jury trial, the court may on its own motion require that the trial be to a jury of 12. A verdict of a jury under this chapter is not valid unless it is unanimous.
      Sec. 980.03(3).

       A Default Petition for Discharge Without Secretary's Approval is triggered when a Wis. Stat. ch. 980 respondent does not sign the last page of a periodic re-examination report. We note that, generally, in the case of a Wis. Stat. § 980.09(2)(a) Default Petition for Discharge Without Secretary's Approval, the probable cause hearing is not an evidentiary hearing — it is simply a paper review of all re-examination reports, with argument by counsel. See State v. Paulick, 213 Wis. 2d 432, 438-39, 570 N.W.2d 626 (Ct. App. 1997).
      Wisconsin Stat. § 980.09 provides in relevant part:
      (2) Petition without secretary's approval, (a) A person may petition the committing court for discharge from custody or supervision without the secretary's approval. At the time of an examination under s. 980.07(1), the secretary shall provide the committed person with a written notice of the person's right to petition the court for discharge over the secretary's objection. The notice shall contain a waiver of rights. The secretary shall forward the notice and waiver form to the court with the report of the department's examination under s. 980.07. If the person does not affirmatively waive the right to petition, the court shall set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the person is still a sexually violent person. The committed person has a right to have an attorney represent him or her at the probable cause hearing, but the person is not entitled to he present at the probable cause hearing.

        (b) If the court determines at the probable cause hearing under par. (a) that probable cause exists to believe that the committed person is no longer a sexually violent person, then the court shall set a hearing on the issue. At a hearing under this paragraph, the committed person is entitled to be present and to the benefit of the protections afforded to the person under s. 980.03. The district attorney or the department of justice, whichever filed the original petition, shall represent the state at a hearing under this paragraph. The hearing under this paragraph shall be to the court. The state has the right to have the committed person evaluated by experts chosen by the state. At the hearing, the state has the burden of proving by clear and convincing evidence that the committed person is still a sexually violent person.
      (c) If the court is satisfied that the state has not met its burden of proof under par. (b), the person shall be discharged from the custody or supervision of the department. If the court is satisfied that the state has met its burden of proof under par. (b), the court may proceed to determine, using the criterion specified in s. 980.08(4), whether to modify the person's existing commitment order by authorizing supervised release.


author: CANE, C.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Evan Zimmerman, Defendant-Appellant.
    Court of Appeals

      No. 02-3097-CR.

      Submitted on briefs June 24, 2003.

    Decided August 12, 2003.

    2003 WI App 196
    (Also reported in 669 N.W.2d 762.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Keith Findley of Wisconsin Innocence Project, University of Wisconsin Law School.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Edwin J. Hughes, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 1-23-04.

   CANE, C.J.

¶ 1. Evan Zimmerman appeals a judgment entered on a jury verdict convicting him of first-degree intentional homicide and an order denying his motion for postconviction relief. Zimmerman raises several issues on appeal. He argues: (1) The evidence was insufficient to convict him; (2) the trial court erroneously allowed the State to rely on speculative evidence connecting him with the victim on the night of the murder; (3) the State knowingly presented false evidence; (4) his trial counsel was ineffective; (5) he is entitled to a new trial because of newly discovered evidence; and (6) he is entitled to a new trial in the interest of justice.

¶ 2. .We conclude that Zimmerman's trial counsel was ineffective because he (1) failed to introduce DNA test results that excluded Zimmerman; (2) failed to obtain and present independent medical testimony regarding the victim's death; and (3) failed to obtain and present expert testimony challenging the hypnotically refreshed testimony of the crime's only witness. As a result of this conclusion, we must determine if the trial evidence was sufficient to convict to determine whether remand for a new trial is required. We conclude the evidence was sufficient to sustain the jury's verdict and therefore remand for a new trial.

Background

¶ 3. On February 26, 2000, at about 5:45 a.m., Kathy Thompson's strangled body was found on a curb on Laurel Street in Eau Claire. Thompson had last been seen walking home from jail around 3 a.m. She and her husband, Robert Miles, had both been taken to jail as a result of a domestic dispute, although Miles was kept overnight on a probation hold. They had been married the day before, and had been seen fighting at their wedding reception. When leaving the jail, Thompson refused a police officer's offer of a ride, saying she wanted to walk home. She began walking in the direction of her apartment, which was a few blocks away and close to the apartment of an ex-boyfriend, Zimmerman.

¶ 4. After the body was discovered, Zimmerman immediately became the focus of the murder investigation. Zimmerman and Thompson had dated from November 1998 until May 1999. Evidence at trial suggested that it had been an uneven relationship that Zimmerman took much more seriously than Thompson. Zimmerman, for instance, had referred to Thompson as his future wife, and after their breakup, he would often show up at taverns and other places where Thompson was. During and after their relationship, Thompson often requested favors of Zimmerman, including loans and frequent use of his van, and she also relied on him for emotional support.

¶ 5. After a year-long investigation, Zimmerman was charged with Thompson's murder. At trial, the State's theory of the crime was that Thompson had met up with Zimmerman after leaving jail, probably at his apartment. The State argued that Thompson's marriage and her rejection of Zimmerman had angered him and led him to kill her. Finally, the State claimed Zimmerman transported Thompson's body to Laurel Street upright in the passenger seat of his van.

¶ 6. The trial evidence was almost entirely circumstantial. The State's case was based on: (1) Zimmerman's inconsistent alibis, incriminating statements to police, and suspicious behavior and statements to others on the morning Thompson's body was discovered; (2) the opportunity he had to kill her; (3) evidence that Zimmerman was obsessed with Thompson; (4) medical testimony regarding the cause of Thompson's death and the circumstances surrounding it; and (5) the hypnotically refreshed testimony of Brice Rene, who said he saw a van similar to Zimmerman's with a woman in the passenger seat near the site and close to the time Thompson's body was discovered.

¶ 7. The police first contacted Zimmerman the day of the murder. The State and Zimmerman dispute his activities that day. Zimmerman claims he woke up at 9:30 a.m. and went to buy cigarettes at a gas station. On his way there his neighbor, Michael McDonald, told him the police had been looking at his van; Zimmerman expressed concern that they might have looked inside because he had left empty beer cans in the vehicle. After arriving at the gas station, another patron told Zimmerman that he heard a woman had been murdered and "gutted up" on Margaret Street. Zimmerman testified he went home and was eventually contacted by detective William Slaggie, who asked if he knew Thompson and was aware that she was dead. Zimmerman then went to the VFW bar.

¶ 8. The State claimed that Zimmerman was out of the house much earlier that day. Another neighbor of Zimmerman's, Todd Loew, testified that he saw Zimmerman get out of his van between eight or nine o'clock that morning, and that he did not think the van had been there a half-hour to forty-five minutes earlier. When police arrived at Zimmerman's residence around 9:30 or 10 a.m., however, they found no one home. After looking around Zimmerman's van, the police said they left. McDonald testified he saw Zimmerman walking his dog between 10 and 11 a.m., and then told Zimmerman about the police looking at Zimmerman's van. After about a half-hour, McDonald said Zimmerman left in the van. The police contacted Zimmerman at the VFW bar that afternoon, and told a very intoxicated Zimmerman that Thompson was dead. Detective James South-worth said that Zimmerman appeared to be upset and surprised by the news, and did not say he already knew about the murder.

¶ 9. Ron Gibson, a friend of Zimmerman's, testified that at the VFW on the afternoon after the murder, Zimmerman told him that Thompson had been murdered and, "That they found her up on Margaret Street, gutted like a fish." Another friend, Maureen Horne, said Zimmerman told her that afternoon that Thompson "had been murdered and that she was disemboweled and strangled," and that the body had been found on Margaret Street. The officers who contacted Zimmerman at the VFW that afternoon testified they did not tell him how Thompson had been murdered. At trial, Zimmerman argued that he knew the location and the cause of death, both of which turned out to be at least partially wrong, because he had heard them at the gas station that morning. The State, however, claimed that Zimmerman knew these things because he was responsible for the murder.

¶ 10. Detective Donn Adams testified that he contacted Zimmerman later on the day of the murder and that Zimmerman claimed to have been drinking with his neighbor, Lowell Brown, on that morning. Brown testified that this was not true, and Zimmerman disputed Adams's testimony, claiming only to have called out to Brown after arriving back from the VFW on the morning of the murder. Zimmerman allowed Adams to look though his apartment and impound his van for examination.

¶ 11. On February 27, Zimmerman had a telephone conversation with a co-worker, Shane Eckwright, about the murder. Zimmerman told Eckwright that he had been at the VFW on the night of the murder with Dan Cox and Gibson until about 2:30 a.m. Both Cox and Gibson corroborated this story. On February 28, Diane Steinke, a friend of Zimmerman's, called Slaggie and told him that Zimmerman had slept at her house after returning from the VFW on the morning of the murder. Brown also told police that Zimmerman said he had spent the night at Steinke's.

¶ 12. At trial, Zimmerman testified that on the night of the murder, he left the VFW at 2:30 a.m., had a drink with Cox in the parking lot, and then drove to his friend James Stephanie's house. Not seeing Stephanie's car, he left and went to Steinke's. Although her lights were on, he said he got no response knocking on her door and went home. There, he called up to Brown to see if he wanted to have a beer, but Brown did not respond so Zimmerman went to sleep.

¶ 13. In April 2000, the police conducted a traffic survey in the area where Thompson's body was found, asking motorists if they had been in the area on the morning of February 26. A man named Brice Rene said he had been in the area and had noticed a white van with a sleeping or passed out female passenger around 5:30 a.m. while he was on his way to work. The police showed Rene pictures of Zimmerman's van, a white Dodge with wood paneling, and he said he thought it was the one he saw, but was unsure. He could not identify the driver and did not describe the woman passenger. Rene said he saw the van at an intersection where it had to wait for his car to pass, and it then turned behind him.

¶ 14. In an effort to recover information, the police had Rene hypnotized. During the hypnosis session, which was videotaped and replayed at trial, Rene recalled that the van turned in front of him, not behind, that the woman had a medium build, was in her late thirties and had shoulder-length brunette hair, and that the van may have been a Ford with a blue racing stripe. Zimmerman's counsel unsuccessfully attempted to suppress the tape as irrelevant and prejudicial.

¶ 15. The police continued to contact Zimmerman to discuss the case. In August 2000, they informed him that a witness had seen a woman with her eyes closed in a white van near the area where Thompson was found. At trial, the officer who conducted the interview said Zimmerman's response was "nobody saw us," although on cross-examination he agreed that Zimmerman had said "nobody saw us because we weren't together," but explained that there was a pause between "us" and "because." The officer also testified that in the same conversation, ¿immerman became very emotional and began crying after he said he thought his daughter would forgive him if he was responsible for the crime. After his arrest, Zimmerman told the arresting officer he really could not remember what had happened the night of the murder, but that he was "going to stick with" his claim that he went home and went to bed. When the officer asked if Zimmerman might have committed the murder while he was blacked out, Zimmerman told him it was a possibility.

¶ 16. In support of its claim that Zimmerman was obsessed with Thompson, the State presented evidence that after their breakup, Zimmerman would appear at taverns and other places where Thompson was, and once even appeared in her kitchen in the middle of the night. A friend of Thompson's testified that Thompson had told her that Zimmerman had said if he could not have Thompson, no one could. In addition, a friend of Zimmerman's said that Zimmerman had told him that "he would like to kill [Thompson] and . . . cut her cunt out so he could take it out and take it home and fuck it whenever he wanted to." The State also introduced Zimmerman's diary entries regarding his and Thompson's relationship, which detailed, among other things, when they had sex and Thompson's "periods."

¶ 17. The defense presented evidence suggesting that Zimmerman was "over" Thompson. For instance, the man whom Thompson dated after Zimmerman, but before her husband, testified that Zimmerman was not angry when he learned of the relationship and told him to treat Thompson well. In addition, the defense introduced a note and the testimony of two witnesses showing that Zimmerman had wished Thompson well after learning she was getting married.

¶ 18. At trial, the State's theory of opportunity was that because Thompson still turned to Zimmerman for help, she likely went to him after her release from jail. In support, the State pointed out that she had tried to persuade two friends to take her to Zimmerman's after leaving her wedding reception. In addition, the State noted that she walked towards Zimmerman's apartment after leaving the jail, although her apartment was also in that direction. Because Zimmerman would have recently arrived home from the VFW, the State argued, he would still be awake when she arrived.

¶ 19. Ramsey County, Minnesota, medical examiner Michael McGee performed Thompson's autopsy. He testified the cause of her death was asphyxia due to ligature strangulation, and that a telephone cord found in Zimmerman's van may have been the object used. McGee also said that Thompson's nasal secretions had dried in such a way on her face to suggest she had been sitting upright, rather than lying down, when the secretions drained and dried, and that this would have been consistent with her sitting in the passenger seat of Zimmerman's van. He also said it was possible that she was strangled inside the van. McGee testified he did not think the murder was sex-related.

¶ 20. The State also presented physical evidence seized from Zimmerman's van and from the area where Thompson was found. Police found Thompson's hair, identified by DNA testing, on a brush in the van. The police also collected cigarette butts from the area where Thompson was found, hairs from Thompson's pants and sweater, and scrapings from her fingernails. The test results excluded Zimmerman as a source, and Zimmerman, Thompson and her husband were excluded as sources of the DNA on the cigarette butts and hair found on Thompson's pants. Police also had beer cans from Zimmerman's van tested, which returned only his DNA. Zimmerman's attorney did not elicit testimony that the DNA samples taken from the scene excluded Zimmerman and that some samples excluded Zimmerman, Thompson, and her husband.

¶ 21. In addition, Zimmerman owned a dog, and the police recovered a substantial amount of dog hair from his van. No dog hairs were found on Thompson. Thompson owned a cat and her sweater was covered in cat hair, but no cat hairs were found inside the van. The telephone cord did not contain any DNA. Carpet fibers from Thompson's shoes could not be matched to any source.

¶ 22. The jury convicted Zimmerman of first-degree intentional homicide and the court gave him the mandatory life sentence, making him eligible for extended supervision in twenty years. In his motion for postconviction relief, Zimmerman claimed that his counsel was ineffective, that the State knowingly introduced false testimony, and that he was entitled to a new trial based on newly discovered evidence. The court rejected all these claims, and he now appeals.

Discussion

¶ 23. As noted, Zimmerman raises several issues on appeal. Because we conclude that his trial counsel was ineffective, however, we need not address most of these claims. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issue need be addressed). We are required, however, to determine whether the evidence was sufficient for the jury to convict Zimmerman because, if it was not, we would be precluded from remanding for a new trial by the double jeopardy clauses of the Wisconsin and United States Constitutions. See State v. Perkins, 2001 WI 46, ¶ 47, 243 Wis. 2d 141, 626 N.W2d 762.

¶ 24. We are satisfied that the evidence introduced at trial is sufficient to sustain the jury's verdict. When reviewing the sufficiency of the evidence, "The test is not whether this court or any of the members thereof are convinced [of the defendant's guilt] beyond reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be so convinced by evidence it had a right to believe and accept as true." State v. Poellinger, 153 Wis. 2d 493, 503-04, 451 N.W2d 752 (1990).

[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 state 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.

Id. at 507 (citation omitted).

¶ 25. Zimmerman contends, and the State admits, that most of the persuasive evidence against him was his own statements and alibis. The problem with this, Zimmerman argues, is that they are so lacking in probative value that they are insufficient to support the jury's verdict. We are not persuaded, however, that the only substantial evidence of Zimmerman's guiit were his statements and alibis. Instead, we must examine all the evidence introduced at trial and, if any reasonable inferences from it could support the verdict, we must accept those inferences.

¶ 26. It is true that the inferences from Zimmerman's statements are mostly negative. In his brief, Zimmerman argues that the various alibis he gave to the police regarding his whereabouts on the night of the murder can be construed as consistent. We agree, however, it is just as easy, if not easier, to construe them as inconsistent. Zimmerman told the police various things regarding his whereabouts on the morning of the murder. Simply because his testimony at trial reconciled some of the inconsistencies does not mean the jury was required to accept that explanation.

¶ 27. Zimmerman also argues that even if the jury had concluded he fabricated his alibi, this alone is not enough to support the verdict. See Stewart v. State, 83 Wis. 2d 185, 193, 265 N.W.2d 489 (1978) (a negative inference from defendant's testimony, standing alone, is insufficient to sustain a guilty verdict). This argument, however, ignores the rest of the evidence presented at trial that allowed the jury to reach its verdict.

¶ 28. For example, the testimony establishing Zimmerman's obsession with Thompson and his statements about her could also help lead a jury to conclude that he was responsible for killing her by establishing his motive. Zimmerman argues that the evidence suggested he was "over" Thompson by the time of her wedding and had, in fact, wished her good luck in her life. However, there was also evidence of his obsessive behavior, such as his diary and his appearance at bars and other places where Thompson was present after their breakup. While there may be innocent explanations for these behaviors, there certainly are negative implications that could be reached as well, and the jury could reasonably conclude that Zimmerman was obsessed with Thompson, and this was a motive for him to kill her.

¶ 29. The jury could also have inferred guilt from the testimony about Zimmerman's knowledge of the location of Thompson's body and her cause of death. Although he named the wrong street and said incorrectly that she had been gutted, the street was very close to where the body was found and he correctly said that Thompson had been strangled. A jury could reasonably infer that the reason he knew these things was because he was responsible for the murder.

¶ 30. In addition, while it was minimal, the direct and physical evidence was not without probative value. One of Thompson's hairs was found in a brush in Zimmerman's van. A reasonable inference is that the hair came from Thompson on the night of the murder, that Thompson was killed or transported in Zimmerman's van, and that he killed her. We agree that the remaining DNA evidence is overwhelmingly against the State's case. However, we must indulge every reasonable inference and it is for the jury to determine the credibility of witnesses, the weight to be given to the evidence, and to resolve conflicts in testimony. See Poellinger, 153 Wis. 2d at 506.

¶ 31. Finally, a jury could infer Zimmerman's guilt from Rene's testimony that he saw a white van in the area around the same time that Thompson's body was found. Despite conflicts in Rene's testimony and his inaccurate description of the van, he said he saw a white van, close in time and proximity to the discovery, and that a woman similar to Thompson was passed out or sleeping in the passenger seat. A jury could infer that the van was Zimmerman's, Thompson was the woman, and that, instead of her being passed out or sleeping, she was dead. Based on Rene's testimony, Zimmerman's inconsistent alibis, the physical evidence and the evidence of Zimmerman's obsession with Thompson, a reasonable jury could conclude beyond a reasonable doubt that he was guilty.

¶ 32. We next address Zimmerman's claim that his trial counsel was ineffective. Zimmerman claims his counsel was ineffective because he failed to (1) expose the State's false claims of Zimmerman's guilty knowledge of the murder's details by not introducing evidence that the police had released information about the murder before Zimmerman demonstrated his knowledge; (2) present the DNA test results that excluded Zimmerman and presented the profile of an unknown man; (3) obtain and present medical testimony challenging Dr. McGee's conclusions; (4) challenge Rene's hypnotically refreshed testimony; (5) object to inadmissible hearsay and opinion testimony; and (6) object to improper closing arguments.

¶ 33. In order to prevail on an ineffective assistance of counsel claim, a defendant bears the burden of establishing that counsel's performance was deficient and that the deficient performance produced prejudice. State v. Sanchez, 201 Wis. 2d 219, 232-36, 548 N.W.2d 69 (1996). To prove deficient performance, a defendant must establish that his or her counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984). The defendant must overcome a strong presumption that his or her counsel acted reasonably within professional norms. State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W2d 845 (1990).

¶ 34. To show prejudice, the defendant must demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. When a defendant alleges multiple deficiencies by trial counsel, prejudice should be assessed based on the cumulative effect of these deficiencies. State v. Thiel, 2003 WI 111, ¶ 59.

¶ 35. Ineffective assistance of counsel claims present mixed questions of law and fact. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711 (1985). A trial court's factual findings must be upheld unless they are clearly erroneous. State v. Harvey, 139 Wis. 2d 353, 376, 407 N.W.2d 235 (1987). Whether counsel's performance was deficient and, if so, whether the deficient performance prejudiced the defendant present questions of law, which we review de novo. Pitsch, 124 Wis. 2d at 634. The defendant has the burden of persuasion on both prongs of the test. Strickland, 466 U.S. at 687, 697.

¶ 36. We conclude that Zimmerman's trial counsel was deficient due to his failures to present the DNA evidence that excluded Zimmerman, offer alternative medical testimony, and challenge Rene's hypnotically refreshed testimony. Further, we determine that the cumulative effect of these errors was prejudicial and, therefore, Zimmerman is entitled to a new trial because he received ineffective assistance of trial counsel.

¶ 37. We first examine Zimmerman's claim that his counsel was ineffective by failing to present the DNA evidence. The State submitted numerous items for DNA testing, including cigarette butts found near Thompson, hairs found on her pants and sweater, and tissue samples taken from under her fingernails. DNA extracted from these sources was compared against profiles of Zimmerman, Thompson, and Miles. Zimmerman was excluded as the source of any of these items, and all three were excluded as the source of the hairs taken from the pants and the cigarette butts.

¶ 38. At trial, the DNA results came in through lieutenant Eric Larson. Neither the State nor counsel questioned Larson about the hairs found on Thompson's pants or the fingernail scrapings and, on direct examination, Larson testified that no evidence found at the scene provided any insight into the crime. At the postconviction motion hearing, counsel testified he had no strategic reason for not introducing this evidence and admitted he made a mistake by not doing so. We agree.

¶ 39. Counsel's failure to adequately question Larson about the DNA test results constitutes deficient performance. The situation is comparable to that in State v. Glass, 170 Wis. 2d 146, 488 N.W2d 432 (Ct. App. 1992). In Glass, counsel for a defendant accused of sexual assault stipulated that the results of a vaginal swab taken from the victim were inconclusive. Id. at 149. The swabs, however, tested negative for the presence of semen. Id. We concluded this constituted ineffective assistance because, "A 'negative' test result is far different from an 'inconclusive' one. Defense counsel's explanation for stipulating away such potentially exculpatory evidence is unsatisfactory and implausible. Whether or not the strength of that evidence later might have been diminished, Glass was entitled to have the jury hear it.” Id. at 152.

¶ 40. Here, the only testimony regarding the DNA samples taken from the scene was that they provided no insight into the crime. At best, this statement means the samples were inconclusive. This, however, was not the case. Instead, the samples taken from Thompson's body and the surrounding area excluded Zimmerman; and one sample excluded Thompson, her husband, and Zimmerman as sources. Counsel's failure to challenge Larson's testimony with this data had the effect of essentially stipulating that the evidence was inconclusive. Instead, it was potentially exculpatory evidence that Zimmerman was entitled to have the jury hear. Counsel's failure to introduce this evidence constitutes deficient performance.

¶ 41. We next address Zimmerman's claim that his counsel should have presented alternative medical testimony to counter Dr. McGee's. At the postconviction hearing, Milwaukee County medical examiner Jeffery Jentzen testified on Zimmerman's behalf and challenged much of McGee's testimony. Specifically, Jentzen said that the telephone cord found in Zimmerman's van could not have been the murder weapon because the mark left on Thompson's neck was a wide, webbed, fabric-like pattern and contained a buckle mark, and was therefore inconsistent with the telephone cord. Further, Jentzen testified that the nasal secretion pattern was consistent with being formed while the body was lying down, rather than sitting up, that Thompson's wounds were inconsistent with being formed in a vehicle and being strangled by someone in the driver's seat. Jentzen also stated the circumstances in which Thompson was found and some of her injuries were consistent with a sex-related crime.

¶ 42. Given the particular facts of this case, we conclude that counsel's failure to present independent medical testimony constituted deficient performance. Counsel's decision not to investigate a defense must be directly assessed for reasonableness in all the circumstances, "applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691. At the Machner hearing, counsel testified that he did not consider finding a medical examiner to review McGee's findings because they did not link Zimmerman to the crime, although he admitted Jentzen's evidence would have been helpful at trial. Many of McGee's findings were inconclusive. He testified that the telephone cord could have been the murder weapon and that nothing found in the autopsy indicated that it was not used. Jentzen, however, concluded that the cord was not used in Thompson's murder. McGee also testified that hemorrhages on Thompson's body could have been caused by being pushed against a van door or window by a person in the driver's seat, whereas Jentzen concluded this was not the case. Both of McGee's statements were important to his testimony, and both were rather inconclusive. Counsel was deficient by failing to present available alternative testimony to counter McGee.

¶ 43. Finally, we conclude that counsel's handling of Rene's hypnotically refreshed testimony was deficient. In State v. Armstrong, 110 Wis. 2d 555, 329 N.W.2d 386 (1983), our supreme court first addressed the admissibility of hypnotically refreshed testimony. The trial court's discretionary decision to admit the testimony focuses on the reliability of the hypnotic session. Id. at 574. The court listed nine factors for trial courts to consider when deciding whether to admit hypnotically refreshed testimony. Id. at 571 n.23. These factors are intended to assist the court in determining whether the hypnosis session was unduly suggestive. Id. The court should also examine whether the hypnosis process was reliable under the circumstances. Id. at 573. In addition, the supreme court held that to satisfy a defendant's confrontation right, the court must allow cross-examination of the witness, and the defendant must be allowed to introduce expert testimony on the witness' prehypnotic recollection and the effect hypnosis can have on memory. Id. at 569-70.

¶ 44. Here, counsel unsuccessfully made a motion in limine to prevent Rene from testifying on the basis that the testimony would be irrelevant and prejudicial. Counsel never argued, however, that the hypnosis session did not comply with Armstrong's requirements. At the postconviction hearing, counsel testified he did not challenge the testimony based on Armstrong because Rene's hypnotized and non-hypnotized testimony was so inconsistent that he impeached himself, and this was also why he only asked two questions while cross-examining Rene. The State suggests that this was an appropriate trial strategy and that therefore we may not second-guess counsel's choice. See State v. Felton, 110 Wis. 2d 485, 502, 329 N.W.2d 161 (1983).

¶ 45. To begin, we are not persuaded by counsel's explanation of his trial strategy. Counsel said he let the testimony in because it was so inconsistent, yet he had tried earlier to exclude it because it was irrelevant and prejudicial. Even if it was inconsistent, counsel presumably still thought it was prejudicial. Furthermore, there was a basis to challenge the admission of the testimony under Armstrong. We cannot say whether the trial court would have, in its discretion, granted a motion to exclude the testimony, but counsel should have at least tried. At the postconviction hearing, Zimmerman presented the testimony of professor Alan Scheflin. He stated the hypnosis session did not comply with Armstrong and other standards for hypnotically refreshed testimony, such as being impermissibly suggestive, only videotaping Rene and not the hypnotist, and having the police give too much information to the hypnotist. If the trial court had agreed with Scheflin, it could have suppressed Rene's testimony.

¶ 46. If the trial court did not suppress the testimony, an expert would have been able to challenge the hypnotic session as unduly suggestive. At the postcon-viction motion hearing, Scheflin testified that he found numerous violations of Armstrong's standards in the hypnotic session, including failure to tape both the hypnotist and Rene. Scheflin also criticized the hypnotist's oral, as opposed to written, briefing by the police and also noted police told the hypnotist that Rene "was the crucial witness, the key witness," which violated Armstrong's requirement that the hypnotist be given minimal information to conduct the session. Finally, Scheflin identified several areas in which the hypnotist added content and structure to Rene's memories, including the color of the van and whether it turned in front or behind Rene. While we take no position whether the hypnosis session violated Armstrong's requirements, counsel should have at least presented available expert testimony challenging the hypnosis session and the reliability of Rene's testimony.

¶ 47. We now address whether these deficiencies prejudiced Zimmerman's defense. As noted, to demonstrate prejudice, a defendant must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Further, when multiple deficiencies are alleged, we examine their cumulative prejudicial effect. Thiel, 2003 WI 111, ¶ 59.

¶ 48. Here, the cumulative effect of counsel's deficiencies is sufficient to undermine our confidence in the trial's outcome. The trial court dismissed the prejudicial effect of the claimed errors, saying the medical testimony "had nothing to offer either for or against Mr. Zimmerman's conviction," and that Rene's testimony was "much ado about nothing." The trial court also concluded that the defense proved at trial that no DNA evidence connected Zimmerman to the crime. The State makes similar arguments.

¶ 49. We cannot agree with these statements. The evidence against Zimmerman, while sufficient to allow a jury to reach a guilty verdict, was far from overwhelming. Counsel's deficiencies relate to evidence that, if properly challenged, could have reasonably called Zimmerman's guilt into question.

¶ 50. Zimmerman's defense was that he was not with Thompson on the night of her murder. The omitted evidence would all have reinforced this defense, and the cumulative effect of counsel's errors is enough to undermine our confidence in the jury's verdict. The failure to introduce the exclusionary DNA evidence contributed to the prejudice because, if introduced, it might have allowed the jury to reach the conclusion that because none of Zimmerman's DNA was found at the scene or on Thompson, he was not responsible for her murder. Instead, all the jury heard was that a cigarette butt found near the body did not provide any insight into the crime. Although the jury perhaps could have reached an exculpatory conclusion without this additional DNA evidence, it would have been significantly more likely to reach this conclusion had it been informed that Zimmerman was excluded from various pieces of evidence taken from Thompson's body, rather than a cigarette butt found on a curb.

¶ 51. Similarly, by not seeking independent medical testimony, counsel allowed only the propositions that the telephone cord may have been used in the murder and that Thompson may have been injured, in the van to go to the jury. Had counsel considered seeking independent medical testimony, he could have offered the jury testimony that would have allowed them to reject any connection between McGee's conclusions and Zimmerman. Because counsel did not seek this evidence, and especially in light of the inconclusive nature of the medical testimony and the lack of other strong evidence against Zimmerman, this also contributed to the prejudice against Zimmerman.

¶ 52. Finally, we conclude that counsel's failure to challenge Rene's hypnotically refreshed testimony by attempting to keep it out under Armstrong or by seeking an expert to challenge the reliability of the hypnotic session also contributed to the prejudice. Rene was the only witness placing Zimmerman in the area where Thompson's body was found. While we agree that Rene's testimony was contradictory, the potential inferences from it could very well have led the jury to its conclusion that Zimmerman was responsible for Thompson's murder. Given the "popular misconception that hypnotized people always tell the truth," Armstrong, 110 Wis. 2d at 573, the jury may have given undue weight to any inferences they might have drawn from Rene's testimony. Counsel did little to mitigate this concern. He also should have made a stronger attempt to prevent the introduction of Rene's testimony and, if he failed, sought an expert to challenge the hypnosis session. His failure to adequately challenge the only witness placing Zimmerman in the area where Thompson's body was found further prejudiced Zimmerman's defense.

¶ 53. Both the State and the trial court generally dismissed Zimmerman's claims of ineffective assistance as inconsequential. Our review of the record, however, does not lead us to the same conclusion. We have determined that inferences from this evidence were necessary to sustain the jury's verdict. Thus, this evidence all contributed to Zimmerman's conviction, and defense counsel's deficient performance in these areas prejudiced Zimmerman’s defense.

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

       We wish to acknowledge the following law students who as participants in Wisconsin Innocence Project made a significant contribution to the appellant's appeal: Neil F. Byl, Mary Delaney, Megan Morrisey and Sheila Sullivan.

       Margaret Street is approximately one-half-block from where Thompson's body was found.

        State v. Machner, 92 Wis. 2d 797, 285 N.W2d 905 (Ct. App. 1979).

       The Armstrong factors are:
      1. The person administering the hypnotic session ought to be a mental health person with special training in the use of hypnosis, preferably a psychiatrist or a psychologist.
      2. This specially trained person should not be informed about the case verbally. Rather, such person should receive a written memorandum outlining whatever facts are necessary to know. Care should be exercised to avoid any communication that might influence the person's opinion.
      3. Said specially trained person should be an independent professional not responsible to the prosecution, investigators or the defense.
      4. All contact between the specially trained person and the subject should be videotaped from beginning to end.
      5. Nobody representing the police or the prosecutor or the defendant should be in the same room with the specially trained person while he is working with the subject.
      6. Prior to induction a mental health professional should examine the subject to exclude the possibility that the subject is physically or mentally ill and to confirm that the subject possesses sufficient judgment, intelligence, and reason to comprehend what is happening.
      7. The specially trained person should elicit a detailed description of the facts as the subject believes them to be prior to the use of hypnosis.

        8. The specially trained person should strive to avoid adding any new elements to the subject's description of her/his experience, including any implicit or explicit cues during the pre-session contact, the actual hypnosis and the post-session contact.
      9. Consideration should be given to any other evidence tending to corroborate or challenge the information garnered during the trance or as a result of post-hypnotic suggestion.

        State v. Armstrong, 110 Wis. 2d 555, 571, n.23, 329 N.W.2d 386 (1983) (citation omitted).


author: HOOVER, PJ.

text:
    In the Interest of Daniel T., a person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. Daniel T., Respondent-Appellant.

    Court of Appeals

      No. 03-1189.

      Submitted on briefs July 23, 2003.

    Decided August 12, 2003.

    2003 WI App 200
    (Also reported in 670 N.W.2d 95.)

      On behalf of the respondent-appellant, the cause was submitted on the brief of Leonard D. Kachinsky and Sisson & Kachinsky Law Office of Appleton.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Mary M. Kerrigan-Mares, assistant district attorney, of Green Bay.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review filed.

   HOOVER, PJ.

¶ 1. Daniel T. appeals a disposi-tional order and a subsequent order lifting a stay on the requirement that Daniel register as a sex offender pursuant to Wis. Stat. § 301.45. Daniel contends that the trial court erred when it concluded it had no authority to impose the stay. We conclude that the trial court lacks the authority to stay sex offender registration under § 301.45. Thus, it was appropriate for the trial court to lift the stay and the order is affirmed.

Background

¶ 2. The facts are undisputed. A delinquency petition was filed against Daniel on September 30, 2002, alleging he had engaged in one count of sexual intercourse with a person under the age of thirteen, contrary to Wis. Stat. § 948.02(1), arid one count of burglary. Daniel eventually admitted the sexual assault and the burglary charge was dismissed and read in at sentencing.

¶ 3. At the dispositional hearing on November 27, the court ordered Daniel be placed for one year in the Northwest Child and Adolescent Center. As a condition of the placement, Daniel was to register with the State as a sex offender pursuant to Wis. Stat. § 301.45. The trial court, however, stayed the registration for ninety days, pending determination of the registration statute's applicability, even though the trial court questioned its authority to order the stay. On April 15, 2003, the court ordered the stay on registration lifted and Daniel appeals.

Discussion

¶ 4. This appeal requires us to review and interpret sections of Wis. Stat. §§ 301.45 and 938.34. Interpretation of a statute is a question of law we review de novo. In re Kendell G., 2001WI App 95, ¶ 9, 243 Wis. 2d 67, 625 N.W.2d 918. A court may have erroneously exercised its discretion if it based its orders on an erroneous interpretation of the law. In re Adra B., 2000 WI App 86, ¶ 9, 234 Wis. 2d 406, 610 N.W.2d 144.

¶ 5. We note that the initial "stay" was ordered because Daniel requested a hearing under Wis. Stat. § 938.34(15m)(bm) to determine whether Wis. Stat. § 301.45 applied. Obviously, the court was required to make such a determination because if the registration statute was inapplicable, an order requiring Daniel's registration would be unlawful. At the March 24 hearing, however, Daniel conceded that he did not fulfill any of the § 301.45(lm) exemptions from registering as a sex offender. However, he contended that the court could continue the stay based on Wis. Stat. § 938.34(16), which allows a stay of a dispositional order. The trial court disagreed, as do we.

¶ 6. Wisconsin Stat. § 301.45(lg)(a) requires any person "adjudicated delinquent... for a sex offense" to comply with the section's reporting requirements. This dovetails with Wis. Stat. § 938.34(15m)(bm)'s requirement that "If the juvenile is adjudicated delinquent on the basis of a violation[] . . . of s. ... 948.02(1).. . the court shall require the juvenile to comply with the reporting requirements under s. 301.45 . . .."

¶ 7. Wisconsin Stat. § 938.34(16) allows the court to stay "the execution of the dispositional order contingent on the juvenile's satisfactory compliance with any conditions that are specified in the dispositional order . . . ." Daniel argues that there is ambiguity when Wis. Stat. §§ 301.45, 938.34(15m)(bm), and 938.34(16) are applied together. We disagree.

¶ 8. If there is any inconsistency among these three statutes, it would be that Wis. Stat. §§ 301.45 and 938.34(15m)(bm) appear to conflict with § 938.34(16). The first two require registration, but the latter might allow a court to circumvent that requirement with a stay. When statutes on the same subject conflict, the more specific one controls. Nicolet Minerals Co. v. Town of Nashville, 2002 WI App 50, ¶ 17, 250 Wis. 2d 831, 641 N.W.2d 497.

¶ 9. Here, the more specific statute is the mandatory registration of Wis. Stat. § 301.45. If § 301.45 did not exist, a different sanction could replace it for adjudicatory purposes under Wis. Stat. § 938.34(15m)(bm). In other words, when the court is confronted with a juvenile sex offender, the general juvenile justice statute refers courts to the specific statute of § 301.45 to discover the penalty. Section 301.45(lm) is very specific about when the registration requirement is inapplicable — no part of § 301.45 allows registration to be superceded by a judicial stay. Moreover, § 301.45(5)(a) makes the registration requirements applicable for fifteen years after adjudication, with no mention of the court's ability to toll this time limit by issuing a stay. Thus, a stay may not be issued to circumvent § 301.45 registration requirements.

¶ 10. Alternatively, we disagree that Wis. Stat. § 938.34(16) would allow a trial judge to stay a condition of a dispositional order. The statute allows the dispositional order to be stayed provided the stay is contingent on the juvenile fulfilling the conditions set forth in the original dispositional order. Here, the disposition is the year-long placement; registration as a sex offender is a condition "specified in the dispositional order . If a stay were issued, the most it could do would be to stay Daniel's placement at Northwest Child and Adolescent Center. Even then, he would have to fulfill the registration condition to keep the full disposition in abeyance.

By the Court. — Orders affirmed.

       This case was converted to a three-judge appeal by order dated August 8, 2003.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Daniel only argues regarding the order lifting the stay. He alleges no other errors with regard to the dispositional order itself.

       There are actually several subsections, but they simply refer to different dates on which to start the fifteen-year "clock."

       We also disagree that the court can stay a part or single condition of a dispositional order. Wisconsin Stat. § 938.34(16) allows a stay of "the execution of the dispositional order .. . ." It does not say that a stay of a section of the dispositional order or that a stay of conditions of the order is allowed. We acknowledge that in State v. Kendell G., 2001 WI App 95, ¶¶ 11, 16, 243 Wis. 2d 67, 625 N.W2d 918, we wrote that the court might stay all or part of a disposition. However, the question in Kendell G. was whether, when there is a stay, counting the one-year maximum placement begins on the day the order is entered or the day the stay is lifted. Moreover, there was no dispute over whether the court could stay the dispositional order. Consequently, the interpretation of how much of an order § 938.34(16) allows to be stayed is dicta.