source: Caselaw Access Project

author: DEININGER, PJ.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Tony G. Longmire, Defendant-Appellant.
    Court of Appeals

      No. 03-0300-CR.

      Submitted on briefs August 13, 2003.—

      Decided April 1, 2004.

    2004 WI App 90
    (Also reported in 681 N.W.2d 534.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Charles Bennett Vetzner, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of David J. Becker, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Deininger, RJ., Vergeront and Lundsten, JJ.

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

   DEININGER, PJ.

¶ 1. Tony Longmire appeals a judgment of conviction for theft by contractor. As part of its sentence, the court ordered him to pay $34,985 in restitution, an amount which Longmire moved to reduce. He also appeals the court's order denying his postconviction motion. Longmire claims the amount of restitution ordered is excessive because he was denied an offset for contract work that was completed, and because it includes expenses not authorized by the restitution statute, Wis. Stat. § 973.20 (2001-02).

¶ 2. We agree that the trial court improperly denied Longmire an offset for work performed that he had paid for. We therefore direct that an offset be allowed, but not in the amount Longmire seeks. We also conclude that the victims' attorney fees and their costs in correcting certain construction deficiencies are not, on the present facts, "special damages" recoverable in a civil action against Longmire "for his . . . conduct in the commission of a crime." Wis. Stat. § 973.20(5)(a). Accordingly, we reverse the restitution order in part.

¶ 3. Longmire also complains that the trial court sentenced him to an excessive period of extended supervision and failed to consider relevant "new factors" warranting a reduction in the length of extended supervision. We disagree that the matters Longmire cites constitute new factors for sentencing purposes and, although we affirm the sentence imposed in all other respects, we direct that Longmire may renew his sentence modification motion on remand based on the reduction in restitution we order in this decision.

BACKGROUND

¶ 4. The owners of a home hired Longmire to complete a home improvement project for the sum of $45,295. The homeowners paid Longmire an initial deposit of $30,000 before he commenced work. Long-mire hired a subcontractor to excavate and pour concrete footings for which he paid the subcontractor $5,533, but no additional work was done on the project. Approximately one month after the agreed upon completion date had passed, the homeowners hired an attorney and advised Longmire through counsel that he was in breach of the construction contract. The homeowners subsequently canceled the contract, demanded the return of all payments they had made to Longmire, and asked him for a written accounting of how their payments had been applied. Longmire did not respond to these demands.

¶ 5. The La Crosse County District Attorney charged Longmire with one count of felony theft by contractor, Wis. Stat. §§ 779.02(5) and 943.20(l)(b), and two counts of misdemeanor home improvement fraud. Longmire pled guilty to theft by contractor and made an initial restitution payment of $1,000 in return for the dismissal of the two home improvement fraud charges, which were read in at sentencing. The trial court sentenced Longmire to fourteen months of confinement, to be followed by ten years of extended supervision, and it ordered him to pay the homeowners $34,985 in restitution.

¶ 6. Longmire filed a postconviction motion challenging the amount of restitution. He argued that the restitution total should be offset by the amount he paid the subcontractor to perform the initial excavation and concrete work. He also contended that the total imper-missibly included attorney fees and amounts for landscaping, cement removal, and modification of the concrete footings, allegedly expended by the homeowners to correct deficiencies in the excavation and concrete work.

¶ 7. The trial court declined to reduce restitution. It denied Longmire an offset for the excavation and concrete work, stating that contractor fraud was "a very unique situation" where "there's always shoddy workmanship" and that "if [Longmire] hadn't stole[n] the money, the job would have been completed, and then he'd have been responsible for correcting the mistake." The court also declined to eliminate any of the attorney fees or amounts expended to correct Longmire's subcontractor's allegedly shoddy work. The court concluded that "all of the attorney's fees were incurred in an effort to get the victims their money back," and that "if he hadn't stole [n] the money ... we can assume [the work] would have been done properly, [and] that's an expense that [the homeowners] would not have incurred."

¶ 8. Longmire's postconviction motion also challenged the length of his extended supervision. He maintained that his ten-year period of extended supervision should be reduced because of two new factors: (1) the Criminal Penalties Study Committee Final Report on 1997 Wisconsin Act 283, Truth In Sentencing, which recommended that the maximum length of extended supervision for certain felonies be reduced; and (2) the legislature's subsequent capping of extended supervision for felony theft at five years. Finally, Longmire argued that the length of his extended supervision was unduly harsh and had not been supported by a proper explanation of the length of time chosen. As with the restitution, the trial court refused to modify Longmire's term of supervision. Noting that this was Longmire's third conviction for contractor fraud, the trial court expressed the intent that there not "be a fourth victim." The court concluded that the length of extended supervision was necessary to punish Longmire and to "make the victims whole."

¶ 9. Longmire appeals the judgment of conviction with respect to the amount of restitution and the length of extended supervision ordered, as well as the denial of his postconviction motion seeking reductions in both.

ANALYSIS

¶ 10. The trial court's restitution order required Longmire to reimburse the homeowners for the following items: (1) storage fees ($685); (2) landscaping, cement removal, and related construction costs ($3,100); (3) attorney fees ($2,200); and (4) repayment of the initial $30,000 deposit in full. Longmire challenges only the inclusion of the second and third items, as well as trial court's refusal to offset the restitution amount by the amount of money Longmire paid to a subcontractor for the initial excavation and concrete work. We first discuss the law governing restitution in criminal cases and then apply it to each of Longmire's challenges, beginning with his claim of entitlement to an offset.

H-i

¶ 11. To determine whether the disputed portions of the restitution order are proper, we must first consider Wis. Stat. § 973.20, which governs restitution in criminal cases. The trial court "shall" order restitution for a crime considered at sentencing "unless the court finds substantial reason not to do so and states the reason on the record." Section 973.20(lr). A primary-purpose of restitution is to compensate the victim. See State v. Sweat, 208 Wis. 2d 409, 422, 561 N.W.2d 695 (1997). Section 973.20 "reflects a strong equitable public policy that victims should not have to bear the burden of losses if the defendant is capable of making restitution." State v. Kennedy, 190 Wis. 2d 252, 258, 528 N.W.2d 9 (Ct. App. 1994). Additionally, we are to "construe the restitution statute broadly and liberally in order to allow victims to recover their losses [that occur] as a result of a defendant's criminal conduct." State v. Anderson, 215 Wis. 2d 673, 682, 573 N.W.2d 872 (Ct. App. 1997) (emphasis added).

¶ 12. This mandate notwithstanding, the legislature has placed limits on the restitution a court may order. Wisconsin Stat. 973.20(5) provides, in relevant part:

(5) In any case, the restitution order may require that the defendant do one or more of the following:
(a) Pay all special damages, but not general damages, substantiated by evidence in the record, which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing.

Whether an item included within a restitution order comes within statutory limitations on what a court may order is a question of law that we decide de novo. See State v. Rash, 2003 WI App 32, ¶ 5, 260 Wis. 2d 369, 659 N.W.2d 189, review denied, 2003 WI 32, 260 Wis. 2d 753, 661 N.W.2d 101 (Wis. Apr. 22, 2003) (No. 02-0841-CR).

¶ 13. Restitution awarded under Wis. Stat. § 973.20(5)(a) is limited in two ways relevant to our present analysis. First, before a trial court may order restitution "there must be a showing that the defendant's criminal activity was a substantial factor in causing" pecuniary injury to the victim. State v. Johnson, 2002 WI App 166, ¶ 16, 256 Wis. 2d 871, 649 N.W.2d 284 (emphasis added). In making its determination, however, a trial court may "take[] a defendant's entire course of conduct into consideration" including " 'all facts and reasonable inferences concerning the defendant's activity related to the 'crime' for which [he] was convicted, not just those facts necessary to support the elements of the specific charge.'" State v. Madlock, 230 Wis. 2d 324, 333, 602 N.W.2d 104 (1999) (emphasis added) (citation omitted). Put another way, we have said that a causal link for restitution purposes is established when "the defendant's criminal act set into motion events that resulted in the damage or injury." Rash, 260 Wis. 2d 369, ¶ 7.

¶ 14. Second, restitution is limited to "special damages ... which could be recovered in a civil action against the defendant for his . . . conduct in the commission of a crime." Wis. Stat. § 973.20(5)(a) (emphasis added). This limitation restrains a sentencing court from ordering the payment of "general damages," that is, amounts intended to generally compensate the victim for damages such as pain and suffering, anguish, or humiliation. See State v. Behnke, 203 Wis. 2d 43, 60, 553 N.W.2d 265 (Ct. App. 1996). The term "special damages" as used in the criminal restitution context, means "[a]ny readily ascertainable pecuniary expenditure paid out because of the crime." State v. Holmgren, 229 Wis. 2d 358, 365, 599 N.W. 2d 876 (Ct. App. 1999).

¶ 15. Thus, Wis. Stat. § 973.20(5)(a) limits the items of damages that a sentencing court may order a convicted defendant to pay as restitution in a criminal case to a victim's pecuniary losses attributable to the defendant's criminal conduct. As discussed below, however, a court may not order a criminal defendant to compensate a victim under § 973.20(5)(a) for any item that does not constitute "special damages," nor for any losses that arise solely from the defendant's noncriminal conduct. We conclude that the restitution order under review oversteps these statutory limitations.

A.

¶ 16. The determination of the amount of restitution to be ordered (and thus whether a victim's claim should be offset or reduced for any reason) is reviewed under the erroneous exercise of discretion standard. See Johnson, 256 Wis. 2d 871, ¶ 7. When we review a circuit courts exercise of discretion, we examine the record to determine whether the circuit court logically interpreted the facts, applied the proper legal standard and used a demonstrated, rational process to reach a conclusion that a reasonable judge could reach. Id. Although the burden falls on a victim or the State to establish the amount of the pecuniary injury a victim has sustained on account of a crime, Longmire bears the burden of proving whether an offset should be allowed and in what amount. See State v. Walters, 224 Wis. 2d 897, 907-08, 591 N.W.2d 874 (Ct. App. 1999).

¶ 17. The State does not dispute that Longmire did not retain or misapply all of the $30,000 the homeowners paid him to make improvements to their home: he paid $5,533 to a subcontractor to excavate and pour concrete footings. The trial court acknowledged this fact but nevertheless disallowed any offset for this expenditure by Longmire. The trial court explained its reasoning as follows:

Everybody concedes that Mr. Longmire took $30,000 and stole it, or at least a good portion of it. His claim that he's entitled to a credit for some money that he paid to put in the wrong footings in the wrong place in the wrong size that had to be torn out, and I'm not going to reward him for that for a number of reasons, not the least of which was the fact that there were read-in offenses, and because of the particular nature of contractor fraud there's always shoddy workmanship, it goes hand in hand. And because if he hadn't stole[n] the money, the job would have been completed, and then he'd have been responsible for correcting the mistake, and it is now the homeowner who has to pay to correct that mistake. So I'm not going to give him credit for the amount that he claims he paid for the footings.

The State contends that the trial court's denial of an offset should be upheld because Longmire never established facts sufficient to show that the trial court abused its discretion in refusing to credit him with the monies paid to partially complete the job. It also suggests that such a showing would involve proof that the homeowners had benefited from Longmire's expenditure.

¶ 18. We conclude that the trial court erroneously exercised its discretion by not allowing any offset whatsoever for Longmire's undisputed expenditure of a portion of the deposit money in compliance with his contractual obligations. We also conclude, however, that the extent of the homeowners' benefit from Longmire's expenditure may be considered in determining the amount of offset to be allowed.

¶ 19. There can be little question that the homeowners in this case could recover as special damages in a civil action that part of the $30,000 they paid to Longmire that he misapplied or converted to his own use. See Topzant v. Koshe, 242 Wis. 585, 588, 9 N.W.2d 136 (1943) (explaining that damages for conversion is the value of items wrongfully taken). Longmire did not convert the entire $30,000, however, because he expended $5,533 of it to commence work pursuant to his contract with the homeowners. We thus conclude that Longmire has met his burden to establish that the $30,000 figure should be reduced or offset for the excavation and concrete work Longmire procured for the homeowners.

¶ 20. Although two home improvement fraud charges were read in at sentencing, and thus also constituted crimes "considered at sentencing," neither negates Longmire's entitlement to an offset for expenditures he made on the contracted work. The conduct underlying the two misdemeanors was Longmire's failure to notify the homeowners of a delay in completion of the contract and his failure to return payments to which the homeowners were entitled after they demanded the return in writing. If the homeowners suffered pecuniary loss as a result of the unanticipated delay in completing the contracted work, those damages were unrelated to the issue of an offset to the deposit for work actually completed. Likewise, the damages attributable to Longmire's failure to return unexpended sums after the homeowners' written demand would seem to be the same as the theft or conversion damages — that is, the homeowners would not be entitled to recover any sums Longmire actually expended on the project.

¶ 21. Our conclusion that Longmire is entitled to an offset for amounts he expended for work done does not necessarily mean that he is entitled to an offset of $5,533. That amount may have been excessive or unreasonable for the work actually performed. The homeowners claimed, and the trial court found, that, despite Longmire's expenditure of $5,533 on excavation and concrete work, the work was poorly done and the homeowners were required to pay some $3,100 to correct it. Although, for reasons set forth in the next section of this opinion, we conclude that Longmire could not be ordered to pay for these additional expenses as a separate item of restitution, we see no barrier to considering the corrective expenses in determining the amount to be offset against the $30,000 deposit for work performed. We therefore conclude that the trial court's factual finding regarding the homeowner's additional expenses to correct the deficiencies in the excavation and concrete work, correctly applied, operates to reduce the allowable offset from $5,533 to $2,433, thereby crediting Longmire with the amount he expended on contract work less the amounts the homeowners expended to correct that work.

B.

¶ 22. As we have explained, on the facts of this case, the $3,100 the court found the homeowners expended for correction of defects in the work performed by Longmire's subcontractor may properly be applied to reduce the offset claimed by Longmire for the excavation and concrete work he paid for. Not anticipating that we would treat the expenditures in that fashion, Longmire challenges the trial court's inclusion of the $3,100 as a separate item of restitution. We agree that, absent Longmire's claim for an offset for work performed, the amounts in question should not have been included in the restitution order. The parties have briefed the issue of the inclusion of these costs as a separate item of restitution and, even though the "bottom line" of our disposition is unaffected, we address the issue to provide guidance on it.

¶ 23. We conclude that these costs, incurred by the homeowners and admittedly arising out of their dealings with Longmire, are not recoverable as a separate item of restitution under Wis. Stat. § 973.20(5)(a). Even if the work-correction expenditures could have been recovered in a civil action against Longmire for breach of contract, they would not constitute "special damages . . . which could be recovered in a civil action against [him] for his ... conduct in the commission of a crime considered at sentencing." Section 973.20(5)(a) (emphasis added).

¶ 24. We have no quarrel with the State's contention that a criminal defendant can be required to pay restitution for "special damages," even if not directly caused by the criminal conduct, so long as some "causal nexus" is established between the crimes considered at sentencing and the damage for which restitution is sought. See, e.g., State v. Canady, 2000 WI App 87, ¶ 9, 234 Wis. 2d 261, 610 N.W.2d 147. However, the $3,100 allowed in the restitution order for additional construction costs was not attributable to the fact that Long-mire converted the lion's share of the $30,000 deposit he was given, or that he failed to return unexpended portions of the deposit after the same was demanded, or that he failed to notify the homeowners of a delay in completion of the contract. Rather, the "precipitating cause," id., for these expenditures was construction work, shoddily performed, but legally procured by Longmire in furtherance of his contractual obligations.

¶ 25. The record provides no basis for the trial court's conclusions that "because of the particular nature of contractor fraud there's always shoddy workmanship" and that "if [Longmire] hadn't stole[n] the money ... we can assume [the work] would have been done properly, [and] that's an expense that [the homeowners] would not have incurred." Although it may be the case that many who commit theft by contractor or violate trade regulations also perform shoddy work, the former are crimes but the latter is not. Contrary to the trial court's statements, had Longmire not stolen the homeowners' money but instead applied all of it toward completing the contracted work, the homeowners might still have found it necessary to incur additional expenses in correcting the deficiencies. In that case, however, their only recourse would have been to pursue a civil recovery, and we cannot read Wis. Stat. § 973.20(5)(a) so broadly as to permit them to piggyback a breach of contract claim onto the pecuniary losses they incurred on account of Longmire's theft.

¶ 26. We emphasize that it is not the nature of the potential civil cause of action that distinguishes between amounts awardable as restitution and those that are not. Wisconsin Stat. § 973.20(5)(a) permits restitution for "all special damages" that could be recovered in any type of "civil action," be it one for conversion, breach of contract, or even (as we discuss further below) a statutory cause of action based on administrative rule violations. Longmire's conversion of the deposit payment, his failure to return unexpended portions of it after a written demand, and his failure to give notice of a delay in completion of the project no doubt all constituted breaches of Longmire's contract with the homeowners. But the crucial fact is that each of these acts was also "a crime considered at sentencing," and hence, any losses attributable, directly or indirectly, to those acts by Longmire were proper items of restitution. Section 973.20(5)(a). The poor quality of the work actually performed under the contract, however, was purely a civil wrong and the criminal restitution statute cannot be enlisted to remedy it.

C.

¶ 27. Longmire's final challenge to the restitution order is to the inclusion of the homeowners' attorney fees in the amount of $2,200. At the postconviction hearing, one of the homeowners testified that they had commenced a civil suit against Longmire seeking recovery of damages for landscaping costs, removal of debris, and additional construction necessitated by the subcontractor's allegedly shoddy work. The homeowners' attorney also testified. She stated that she was retained for the purposes of recouping the stolen funds. The attorney produced a billing invoice itemizing the services she rendered to the homeowners. In addition to charges for work relating to the civil action against Longmire, the attorney's billings included charges for her attendance at Longmire's plea hearing and for "drafting [a] new contract, because we proposed a new contract to Mr. Longmire in lieu of the one that he originally . . . agreed to but. .. hadn't completed."

¶ 28. The trial court permitted the inclusion of attorney fees in the restitution order on the following rationale:

[W]hether there was advice given about the criminal case or advice given about the civil case, all of the attorney fees were incurred in an effort to get the victims their money back. That's what those attorney's fees were for. Whether it was ... before or after the Criminal Complaint, or before the plea hearing or after the plea hearing, every bit of effort it is conceded expended by the attorney on behalf of the victims was to try and get the money that Mr. Longmire stole back. And that to me is a reasonable and necessary effort occasioned by his crime.

¶ 29. Longmire contends the trial court erred because the "American Rule" requires litigants in a civil action to bear their own litigation costs, and thus the rule precludes a recovery of attorney fees as "special damages" under Wis. Stat. § 973.20(5)(a). The State responds that Wis. Stat. § 100.20(5) provides an exception to the "American Rule" applicable to this case because it would allow the homeowners to recover "a reasonable attorney's fee" in a civil suit against Long-mire for the Administrative Code violations that underlay the two read-in misdemeanors. Although we agree that the homeowners might be able to recover certain attorney fees in such a suit, we also agree with Long-mire that the fees should not have been a part of the restitution order for amounts authorized under § 973.20(5)(a).

¶ 30. We note first that attorney fees and costs awarded to a successful plaintiff in an action under Wis. Stat. § 100.20(5) are not "damages" recovered but costs of litigation shifted to the defendant. The statute provides as follows:

Any person suffering pecuniary loss because of a violation by any other person of any order issued under this section may sue for damages therefor in any court of competent jurisdiction and shall recover twice the amount of such pecuniary loss, together with costs, including a reasonable attorney's fee.

Because the statutory language plainly distinguishes between a plaintiffs "pecuniary loss" constituting "damages," and attorney fees a plaintiff may also recover, we conclude that the legislature did not intend that costs and fees were subsumed within the plaintiffs "damages."

¶ 31. This interpretation is consistent with our discussion of Wis. Stat. § 100.20(5) in Armour v. Klecker, 169 Wis. 2d 692, 486 N.W.2d 563 (Ct. App. 1992), where we consistently refer to the statute as allowing a successful plaintiff to recover "double damages and attorney fees," see id. at 695, 698-701 (emphasis added), an implicit recognition that a successful plaintiffs "damages" do not include attorney fees. It is also consistent with our conclusion in Paulik v. Coombs, 120 Wis. 2d 431, 355 N.W.2d 357 (Ct. App. 1984), that a plaintiff who prevailed on a claim for double damages under § 100.20(5) could also recover reasonable attorney fees even though the defendant had obtained judgment on a counterclaim that exceeded the plaintiffs damages. Id. at 438.

¶ 32. Finally, we observe that, in authorizing a sentencing court to order a criminal defendant to pay restitution to a victim for "special damages. . . which could be recovered in a civil action against the defendant," Wis. Stat. § 973.20(5)(a) (emphasis added), the statute plainly contemplates that restitution ordered in a criminal case will generally render actual civil litigation unnecessary. We cannot conclude that the legislature intended to include in "special damages" attorney fees for pursuing arguably unnecessary litigation.

¶ 33. Therefore, because (1) Longmire is entitled to an offset for amounts he expended in performance of the contract; (2) the homeowners' expenses in correcting construction deficiencies may not be ordered as an item of restitution but may be used to reduce the offset; and (3) attorney fees recoverable under Wis. Stat. § 100.20(5) are not "special damages . .. which could be recovered in a civil action" within the meaning of Wis. Stat. § 973.20(5)(a); we direct that, on remand, the amount of restitution ordered in the judgment of conviction be reduced from $34,985 to $27,252.

¶ 34. We acknowledge that the reduction in restitution we direct will mean that the homeowners will not be "made whole" for all of their losses resulting from their unfortunate dealings with Longmire, unless they are successful in pursuing further civil remedies against him. As the supreme court has explained, however, "the criminal justice system should not be employed to supplement a civil suit or as a threat to coerce the payment of a civil liability or to perform the functions of a collection agency." Huggett v. State, 83 Wis. 2d 790, 803-04, 266 N.W.2d 403 (1978). Our disposition seeks to ensure that the criminal justice system requires Longmire to compensate his victims for the damages they sustained by virtue of Longmire's criminal conduct, no less and no more.

HH

¶ 35. Longmire raises several challenges to the length of extended supervision the trial court imposed. First, he contends that the trial court improperly accorded overriding weight to the amount of time he would need to pay the ordered restitution, thereby slighting the three "primary" sentencing factors (gravity of the offense, nature of the offender, and need for public protection). Second, Longmire argues that the court's emphasis on the length of time necessary for him to pay the restitution award constituted discrimination on the basis of his financial status, thereby violating his constitutional right to equal protection. Finally, he asserts that "new factors" warrant a reduction in his sentence.

¶ 36. Except for the constitutional claim and the presence or not of a "new factor," matters we decide de novo, our review of Longmire's sentence challenges is limited to determining whether the sentencing court erroneously exercised its discretion. There is a strong public policy against interference with the sentencing discretion of the trial court, and an equally strong presumption that the sentencing court acted reasonably in exercising its discretion. See State v. Perez, 170 Wis. 2d 130, 142, 487 N.W.2d 630 (Ct. App. 1992). The primary factors a court must consider when fashioning a sentence are: "the gravity and nature of the offense, including the effect on the victim, the character of the offender, including his or her rehabilitative needs and the interests of deterrence, and the need to protect the public." State v. Setagord, 211 Wis. 2d 397, 416, 565 N.W.2d 506 (1997). Within this framework, however, the "weight which is to be attributed to each [primary sentencing] factor is a determination which appears to be particularly within the wide discretion of the sentencing judge." Ocanas v. State, 70 Wis. 2d 179,185, 233 N.W.2d 457 (1975).

¶ 37. Longmire acknowledges that restitution may play an important role in meeting an offender's rehabilitative needs. See Huggett, 83 Wis. 2d at 798 ("Restitution can aid an offender's rehabilitation by strengthening the individual's sense of responsibility. The probationer may learn to consider more carefully the consequences of his or her actions."). Longmire objects, however, to what he perceives as the trial court's sole reliance on the amount of restitution in setting his term of extended supervision. He claims the court simply failed to consider his other rehabilitative needs or either of the other primary sentencing factors. We disagree.

¶ 38. The court's considerations at sentencing were not as narrow as Longmire contends. Among other things, the court said this:

There are three principles that are here today that are conflicting. The first one obviously is restitution to the victims, making them whole. The second one is protection of the community to make sure there's no more victims. And the third one is to punish for the wrongdoing that was done. I wish I could wrap all of those up in a nice clean package and make sure that all of those interests were protected. I'm not sure I can.

The court also indicated that it was taking into consideration that Longmire had prior convictions for contractor fraud, that the current offense occurred while Longmire was on probation for contractor fraud, and that it viewed Longmire as having a lack of sympathy for the victims in this case. At the postconviction hearing, the trial court further explained that the sentence it imposed was influenced primarily by two factors: the need to make the victims whole and Longmire's prior record.

¶ 39. We conclude that the trial court's sentencing rationale, taken as a whole, did not constitute an erroneous exercise of discretion. A court, after giving consideration to the relevant sentencing factors, may give disproportionate or controlling weight to a single factor. As the supreme court has explained:

[I]mposition of a particular sentence can be based on any one or more of the three primary factors. While an element of weighing or balancing is involved, this is for the trial court to perform. Such determination will not be reweighed or rebalanced by this court, since "... weight which is to be attributed to each factor is a determination which appears to be particularly within the wide discretion of the sentencing judge."

Anderson v. State, 76 Wis. 2d 361, 367, 251 N.W.2d 768 (1977) (quoting Ocanas, 70 Wis. 2d at 185).

¶ 40. We also reject Longmire's equal protection challenge. At the postconviction hearing, the court declined to reduce the ten-year term of extended supervision it had imposed, saying:

Now, if he pays the whole restitution in five years, come on in and I'll cut the extended supervision at that point in time. I'd love to see it happen. I don't think the victims would complain at all if they got the money back sooner rather than later. But... it's probably going to take him that long, and that's why I gave him the extended supervision that I did.

Longmire contends that the court's comments show that the lengthy term of supervision was imposed solely because of Longmire's straitened circumstances, thus violating the equal protection clause of the Fourteenth Amendment.

¶ 41. We disagree. The cases cited by Longmire, Klimas v. State, 75 Wis. 2d 244, 249 N.W.2d 285 (1977), and State ex rel. Pedersen v. Blessinger, 56 Wis. 2d 286, 201 N.W.2d 778 (1972), preclude a court, on equal protection grounds, from imposing imprisonment on a defendant solely because of his or her poverty. This does not mean, however, that a defendant may not legitimately be placed on a lengthy period of supervision because of his or her inability to immediately pay an obligation imposed as part of the disposition, provided that, if given time, the defendant would be able to make substantial payments toward the obligation. See Huggett, 83 Wis. 2d at 803 ("Failure to make restitution within the original probation period might constitute cause for extending probation and continuing restitution if there is a basis for believing that additional restitution would effectuate the objectives of probation and that [the defendant] could make more than negligible payments during the extended period."); State v. Kuba, 150 Wis. 2d 618, 620-22, 443 N.W.2d 17 (Ct. App. 1989) (concluding that a sentencing court may consider the length of time needed to complete restitution when setting the length of probation). In short, we conclude that ordering a lengthy term of supervision in order to enable Longmire to pay a sizeable restitution amount does not violate his right to equal protection.

¶ 42. Finally, Longmire cites three matters which he argues are "new factors" and thus grounds for the trial court to modify his term of extended supervision: (1) a reduction in the maximum term of extended supervision for the class of felony of which Longmire was convicted; (2) the rationale of the Criminal Penalties Study Committee Final Report on 1997 Wisconsin Act 283 for recommending reduced maximum terms of supervision; and (3) any reduction in restitution as a result of this appeal. We conclude the first two matters are not "new factors," and although the last one is a new factor that Longmire may cite in a renewed sentence modification motion on remand, it does not provide a basis for us to reverse the judgment and order currently on appeal.

¶ 43. A defendant seeking sentence modification based on a new factor must show that a new factor both exists and justifies modification. State v. Champion, 2002 WI App 267, ¶ 4,258 Wis. 2d 781, 654 N.W.2d 242, review denied, 2003 WI 32, 260 Wis. 2d 752, 661 N.W.2d 100 (Wis. Mar. 13, 2003) (No. 01-1894-CR). A new factor is a fact or set of facts highly relevant to the sentence determination that was not known to the trial judge at the time of original sentencing because it was not then in existence or was "unknowingly overlooked" by all parties. Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). A new factor must also be a development that frustrates the purpose of the original sentence, and must be proved by clear and convincing evidence. Champion, 258 Wis. 2d 781, ¶ 4. Whether a fact or set of facts constitutes a new factor is a question of law that we review without deference to the trial court. State v. Michels, 150 Wis. 2d 94, 97, 441 N.W.2d 278 (Ct. App. 1989).

¶ 44. At the time Longmire committed his offense in 2001, theft in an amount greater than $2,500 was a Class C felony, punishable by a maximum bifurcated sentence of fifteen years, with no specified maximum term of extended supervision within the fifteen-year total maximum sentence. Wis. Stat. §§ 943.20(3)(c), 939.50(3)(e), and 973.01(2). This classification and maximum sentence remained in effect during 2002 when Longmire was convicted and sentenced. Just prior to Longmire's sentencing, however, the legislature created new classifications to take effect on February 1, 2003. Longmire's crime became a Class G felony, now punishable by a maximum bifurcated sentence of ten years, of which no more than five years may be ordered as a term of extended supervision. 2001 Wis. Act 109; Wis. Stat. §§ 943.20(3)(c), 939.50(3)(g), and 973.01(2)(d)4 (2003).

¶ 45. Longmire contends that both the reduction in penalty and the rationale behind it constitute new factors for the purposes of sentence modification. However, it has long been the law in Wisconsin that a reduction in the maximum penalty for a crime subsequent to a defendant's sentencing is not a new factor. State v. Hegwood, 113 Wis. 2d 544, 548, 335 N.W.2d 399 (1983). More recently, we have concluded that a change in the classification of a crime under the 2003 revisions to the Truth in Sentencing laws is also not a new factor for traditional sentence modification purposes. State v. Torres, 2003 WI App 199, ¶ 7, 267 Wis. 2d 213, 670 N.W.2d 400, review denied, 2004 WI 1, Wis. 2d_, 673 N.W.2d 693 (Wis. Nov. 17, 2003) (Nos. 03-0233-CR, 03-0234-CR, 03-0235-CR, 03-0236-CR).

¶ 46. We conclude that, just as a change in the classification and maximum sentence of a crime is not a new factor for traditional sentence modification purposes, neither is the rationale underlying the change. The study committee's rationale for recommending to the legislature that certain maximum terms of extended supervision be reduced is not a "fact or set of facts" relevant to the imposition of Longmire's sentence. Rather, it is an opinion on an aspect of correctional policy held by a committee created to conduct a study and make recommendations regarding the implementation of the Truth in Sentencing laws in Wisconsin. See Criminal Penalties Study Comm. Final Report on 1997 Wisconsin Act 283, Truth In Sentencing, at 1 (Aug. 31, 1999). In any event, even if the committee's views could be deemed a "new factor," the trial court did not share those views, making it highly unlikely that the court would have imposed a shorter term of supervision had it been aware of the committee's recommendations at sentencing.

¶ 47. Finally, we acknowledge (and the State does not dispute) that the amount of restitution the court ordered Longmire to pay played a significant role in the court's determination of the length of extended supervision it ordered. We have directed that the restitution amount be reduced from $34,985 to $27,252. We conclude that this twenty-two percent reduction in restitution constitutes a new factor given the prominent role the restitution amount played in the court's sentencing decision. We therefore direct that on remand Longmire may renew his motion for a reduction in the term of his extended supervision on the basis of this new factor. Because the trial court may or may not conclude that the reduction in restitution we have ordered warrants a modification, and because this factor was not present when the court entered the appealed judgment and order, we will not vacate Longmire's present sentence or reverse the postconviction order denying sentence modification.

CONCLUSION

¶ 48. For the reasons discussed above, we vacate that part of the appealed judgment and order requiring Longmire to pay $34,985 in restitution and direct that an amended judgment be entered on remand setting the amount of restitution at $27,252. We affirm the appealed judgment and order in all other respects but direct that Longmire may renew his motion to reduce the term of his extended supervision on the basis of the reduction in restitution we have ordered.

By the Court. Judgment and order affirmed in part; reversed in part and cause remanded with directions.

       WISCONSIN Stat. § 779.02(5) provides, in relevant part:
      [A]ll moneys paid to any prime contractor... by any owner for improvements, constitutes a trust fund only in the hands of the prime contractor ... to the amount of all claims due or to become due or owing from the prime contractor ... for labor and materials used for the improvements, until all the claims have been paid .... The use of any such moneys by any prime contractor ... for any other purpose until all claims . .. have been paid in full or proportionally in cases of a deficiency, is theft by the prime contractor... of moneys so misappropriated and is punishable under s. 943.20.
      Wisconsin Stat. § 943.20(l)(b), in turn, provides that whoever
      [b]y virtue of his or her office, business or employment... having possession or custody of money or ... other negotiable writing of another, intentionally uses, transfers, conceals, or retains possession of such money... or writing without the owner's consent, contrary to his or her authority, and with intent to convert to his or her own use or to the use of any other person except the owner [is guilty of theft].

        If the amount converted exceeds $2,500, the theft constitutes a felony. See § 943.20(3)(c).

       Wisconsin Stat. § 100.26(3) renders it a crime to intentionally refuse, neglect or fail to obey certain trade practice regulations. Longmire was charged with violating two such regulations: Wis. Admin. Code § ATCP 110.02(7) (c) for failing "to give the buyer timely notice of any impending delay in contract performance... beyond a deadline specified in the contract," and § ATCP 110.07(4)(a) for not returning "payments to which the buyer is entitled" within fifteen days after receiving a written demand for their return.

       It appears that this figure represents total restitution of $35,985, reduced by the $1,000 that Longmire paid prior to sentencing pursuant to his plea agreement.

       It is generally the State's responsibility to present at sentencing the "amount of loss suffered by any victim as a result of a crime considered at sentencing" for purposes of restitution. See Wis. Stat. § 973.20(13)(a)1, (b), and (c). However, the "burden of demonstrating by the preponderance of the evidence the amount of loss sustained by a victim as a result of a crime considered at sentencing is on the victim," and, at any post-sentencing hearing on the proper amount of restitution, the district attorney is not required to represent the victim unless the court so orders. Section 973.20(14)(a); State v. Kayon, 2002 WI App 178, ¶ 13, 256 Wis. 2d 577, 649 N.W.2d 334.

       We note that the criminal complaint indicates that the homeowners received an estimate of the value of Longmire's initial excavation and concrete work that was less than the amount Longmire paid for it. Except for this statement in the complaint, the homeowners did not challenge the amount Longmire claimed he spent on the work.

       As the prosecutor noted at Longmire's sentencing, "it's not a crime to do bad work."

       We note that a restitution order may require that a defendant pay other costs, such as a victim's "out-of-pocket expenses" and lost income "resulting from the filing of charges or cooperating in the investigation and prosecution of the crime." Wis. Stat. § 973.20(5)(b). The State does not argue, however, that any provision other than § 973.20(5)(a) authorizes the restitution order in this case. Accordingly, we do not consider whether the homeowners' attorney fees, or some of them, might be ordered as restitution under some other subsection or paragraph of § 973.20.

       Our holding in State v. Anderson, 215 Wis. 2d 673, 573 N.W.2d 872 (Ct. App. 1997), which both parties cite and discuss, does not govern the present facts. We upheld in Anderson the inclusion in a restitution order of attorney fees where the incurred attorney fees are the natural and proximate result of a wrongful act by the defendant which subjects the plaintiff to litigation with a party other than the defendant. Id. at 681 (emphasis added). The fees at issue here were incurred in pursuing claims against Longmire, not a third party. Moreover, we note that the attorney fee at issue in Anderson was a contingency fee that reduced the victims' recovery from a third party who shared responsibility for their losses. If the amount recovered from the third party was allowed as an offset against the victims' pecuniary losses, the effect of allowing the fees as an item of restitution essentially reduced the offset to reflect the net value of the third-party recovery the victims actually received, just as we have reduced Longmire's offset to reflect the victims' net benefit from Longmire's construction expenditures.

       As we have noted, the record indicates that the attorney fees included in the restitution order covered a variety of legal services provided to the victims related to their dealings with Longmire. Longmire also argues that the attorney fees should be excluded from the restitution order because the record does not show that any of the fees were incurred in bringing an action under Wis. Stat. § 100.20(5) grounded on Longmire's Administrative Code violations, which constitutes the State's principal justification for their inclusion. Because we conclude that attorney fees, even if recoverable under § 100.20(5), are not "special damages" within the meaning of Wis. Stat. § 973.20(5)(a), we do not address the potential lack of eviden-tiary support.

       The revised restitution figure of $27,252 is derived as follows: $34,985 (present restitution amount) MINUS $2,433 (net offset for work Longmire paid for) MINUS $3,100 (disallowed construction repair costs) MINUS $2,200 (disallowed attorney fees) = $27,252. Alternatively, the amount can be calculated as follows: $30,000 (homeowners' deposit paid to Longmire) MINUS $2,433 (net value of contract work performed) = $27,567 (amount Longmire converted to his own use) PLUS $685 (uncontested "storage fees") MINUS $1,000 (paid prior to sentencing) = $27,252.

       See footnote 14.

       The notation (2003) refers to provisions in the 2001-02 statutes that became effective on February 1, 2003.

       Our conclusion in State v. Torres, 2003 WI App 199, ¶ 7, 267 Wis. 2d 213, 670 N.W.2d 400, review denied, 2004 WI 1,_Wis. 2d_, 673 N.W.2d 693 (Wis. Nov. 17, 2003) (Nos. 03-0233-CR, 03-0234-CR, 03-0235-CR, 03-0236-CR) rests in part on our observation that the newly created Wis. Stat. § 973.195
      reflects the legislature's intent to create a separate and specific statutory procedure for requesting a sentence reduction that should be used in place of [a motion for sentence modification] whenever "a change in law or procedure related to sentencing.. . effective after the inmate was sentenced that would have resulted in a shorter term of a confinement" is the basis of the modification.

        Id., ¶ 9. We note that § 973.195(b) 1 also permits a defendant to request sentence adjustment grounded, among other things, on his or her "progress in rehabilitation." The trial court stated at the postconviction hearing (see ¶ 40) that it would entertain a motion from Longmire to reduce his term of extended supervision if he fully paid the ordered restitution in less than ten years. We note that § 973.195 limits when a request for sentence adjustment may be filed, and it limits the types of adjustments a court can order. We express no opinion as to whether the circuit court possesses the authority, either under § 973.195 or other law, to terminate Longmire's term of supervision upon completion of his restitution obligation.

       In denying Longmire's sentence modification motion, the court explained:
      So there were two primary reasons why he got the sentence he got, and I articulated both of them. One was to punish him, to finally get the message across to him that he can't he doing this. It's got to stop. There's not going to be a fourth victim. And the other one was to make sure that I could make the victims whole, because he did steal a lot of money, and it's going to take him a long time to pay it back, and five years isn't going to be enough.

        And it may well be that after a year or two the legislature is going to realise that programs limiting extended supervision to a five-year period of time when there's a tremendous amount of restitution due is a mistake, and they may change the law back.

      (Emphasis added.)


author: DYKMAN, J. DEININGER, RJ.

text:
    In Re the Custody and Support of Neven D.H.: David E. Helling, Petitioner-Respondent, v. Billie Jo Lambert, Respondent-Appellant.
    Court of Appeals

      No. 03-1097.

      Submitted on briefs December 5, 2003.

    Decided April 1, 2004.

    2004 WI App 93
    (Also reported in 681 N.W.2d 552.)

      DeiningeR, EJ., dissents.

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Lynn J. Bodi and Carol M. Gapen of The Law Center for Children & Families, Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Tod O. Daniel, Janesville.
    For Neven D.H. the cause was submitted on the brief of Michael A. Haakenson of Haakenson & Haak-enson, guardian ad litem for Neven D.H., Janesville.
    Before Deininger, PJ., Dykman and Higginbotham, JJ.
   DYKMAN, J.

¶ 1. Billie Jo Lambert appeals from a judgment awarding primary physical placement of her son, Neven, to the boy's father, David Helling. She claims the trial court erroneously considered her non-marital relationship with a third party as a negative factor absent any showing that the relationship was harmful to the child; that the court was biased against her based on her living arrangements and pregnancy; that the court failed to give adequate consideration to the harm which could result from removing the child from his primary attachment; and that there was insufficient evidence to support the court's conclusion that placement with the father would be in the child's best interest. We conclude that the trial court's opinion of the stability of nonmarital relationships in general, which it stated was based in part upon its view of other paternity cases it had seen, was insufficient to support a factual finding that the mother's specific living situation in this case was unstable. Because the trial court identified its finding that the mother's living situation was unstable as one of the "main factors" supporting its decision, we reverse and remand for further proceedings consistent with this opinion.

BACKGROUND

¶ 2. Neven was born on March 1, 2000. Lambert and Helling were living together at that time, and Helling formally acknowledged his paternity of Neven after the child's birth.

¶ 3. Helling and Lambert's relationship deteriorated. Helling moved out of the parties' shared residence in October of 2000. The parties agreed between themselves that Helling would have Neven overnight on Tuesdays, Thursdays and Saturdays each week. That arrangement continued until August of 2001, when Lambert moved in with her new boyfriend, Scott Weber, whom she had been dating for over a year.

¶ 4. In August of 2001, Helling filed a family court action seeking primary physical placement of Neven. The trial court entered a temporary order placing Neven with Helling on Tuesday and Thursday evenings and alternate weekends.

¶ 5. By the time of the hearing, Lambert had been dating Weber for about two years, living with him for three months, and was expecting a child with him. Weber testified that Lambert was not officially on his lease, but was paying him $425 per month in rent, and they were splitting other expenses. Lambert testified that she and Weber had no current marriage plans, but that she hoped to build a permanent long-term relationship with him. While at work, Lambert placed Neven in daycare with a woman caring for four other children about Neven's age. Helling's sister provided daycare for Neven during Helling's periods of placements.

¶ 6. Consistent with the guardian ad litem's recommendation, the trial court decided to award Helling primary physical placement, primarily citing the instability of Lambert's living situation. The details of the trial court's reasoning will be discussed more fully below.

DISCUSSION

¶ 7. We review the trial court's placement decision under the erroneous exercise of discretion standard. Wiederholt v. Fischer, 169 Wis. 2d 524, 530, 485 N.W.2d 442 (Ct. App. 1992). To be sustained, a discretionary determination must be based upon the facts appearing in the record and in reliance on the appropriate and applicable law. Luciani v. Montemurro-Luciani, 199 Wis. 2d 280, 294, 544 N.W.2d 561 (1996). Thus, although a court has broad discretion in making placement decisions, its power is still limited to that provided by statute. Schwantes v. Schwantes, 121 Wis. 2d 607, 360 N.W.2d 69 (Ct. App. 1984).

¶ 8. Under Wis. Stat. § 767.24(4)(a)2 (2001-02), the trial court "shall set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for different households." The court must consider a variety of factors relevant to the best interest of the child in making its determination, including the wishes of the child and parents; the interaction of the child with his parents or other persons who may significantly affect his or her best interests; the amount of time the child has spent with each parent; the child's developmental needs and adjustment; any physical or mental health issues; any abuse issues; the availability of child care; the ability of each parent to cooperate and facilitate the other parent's contact with the child; and any professional assessments. § 767.24(5). In addition, the court shall consider "the need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child," and "[s]uch other factors as the court may in each individual case determine to be relevant." § 767.24(5)(em), (k). However, because freedom of association is constitutionally protected, a court may not base a placement decision on a parent's nonmarital sexual conduct or relationship with a third party absent specific evidence that the conduct or relationship in question has had or would have a significant adverse impact on the child. See Schwantes v. Schwantes, 121 Wis. 2d at 625-26.

¶ 9. Here, the trial court found that both parents had spent substantial amounts of time with the child and interacted well with him; that the child was well adjusted; that there were no mental health or abuse issues; and that the parents were able to communicate reasonably well with one another. While "not denigrating" the mother's daycare services, the trial court favored the father on that factor due to the strong relationship the father's sister had with the child. The trial court acknowledged that the mother had been the primary caregiver, but explained that it was giving that factor less weight than it might have in other cases because the child had demonstrated an ability to adjust well to the changes he had already experienced. We see no misuse of discretion in the trial court's consideration of any of these factors.

¶ 10. The trial court then focused on the factor enumerated in Wis. Stat. § 767.24(5)(em), the "need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child." Lambert argues that the trial court erred in interpreting this provision as a general requirement for predictability and stability in the child's life, rather than a preference for regularly occurring periods of physical placement. Even if we were to read that factor as Lambert urges, however, we are persuaded that predictability and stability would still be permissible factors for a court to consider as relevant to the child's best interest under the catchall provision in § 767.24(5)(k).

¶ 11. The main problem with the trial court's analysis, in our view, is not its consideration of stability as a proper factor, but rather its factual basis for finding that Lambert was "not in a predictable and stable situation." The trial court specifically found that Lambert's situation was" not stable "because ... [she had] recently established a relationship with Mr. Weber." It went on to state:

That relationship, if I calculate it correctly, has existed where you live together for at the most three months, and it's the kind of relationship that can be here today and gone tomorrow because when people do not get married, that relationship does not have the stability of law. It can end tomorrow. That concerns me.
It also concerns me, and, you know, I observed Mr. Weber up here. I observed Ms. Helling. I didn't hear any testimony about how that child gets along with Mr. Weber. Here we have got somebody that's in that child's life and is going to be in that child's life on a fairly consistent basis, and I'm concerned about that.
And I'm concerned by the new relationship. You don't own the home, that you are there at Mr. Weber's largess, and that is one of the most important things I think in this case.
And I also agree with Mr. Daniel, I think it shows poor judgment on your part that you entered into that relationship, that you will have another child out of that relationship with no predictability or stability in it.
And I guess in part my attitude about this type of thing is based on the fact that I have probably 40 to 50 paternity cases a month which are brand new, and I don't think that's right. And I don't think those are predictable or stable relationships, and I guess one of the criterion that I based that decision on, I see it 40 to 50 to 60 times a month. I see what happens. That concerns me.

(Paragraph divisions revised.) We see several flaws in the trial court's reasoning.

¶ 12. First, although it is true that Lambert and Weber had only been living together for three months by the time of the hearing, it was undisputed that they had been dating for two years. We therefore question the characterization of their relationship as having been "recently established."

¶ 13. Second, the trial court's assertion that Lambert and Weber's relationship is the kind that "can be here today and gone tomorrow" appears to have been based solely on the fact that the relationship was nonmarital in nature. The trial court's generalized assumption about the stability of nonmarital relationships ignores the reality that marital relationships can also end in divorce. Moreover, it violates the maxim that "[e]ach custody case must turn on its own facts and circumstances." Wendland v. Wendland, 29 Wis. 2d 145, 149, 138 N.W.2d 185 (1965). Lambert testified that she hoped to have a "permanent, long-term relationship" with Weber. We see nothing in the record which would undermine Lambert's testimony or indicate that Lambert and Weber's relationship was in any particular jeopardy. Indeed, the trial court's own comment that Weber was "going to be in that child's life on a fairly consistent basis" suggests a likelihood that Lambert and Weber's relationship would continue.

¶ 14. The trial court could reasonably take into consideration the nature of Weber's relationship with the child. However, Weber had been dating Lambert for two of the two-and-a-half years of the child's life, and the trial court found that the child was well adjusted. Absent any specific evidence of problems, we see no factual basis for the trial court to draw any unfavorable inferences about Weber's relationship with the child.

¶ 15. The trial court could also reasonably consider the stability of each parent's living situation. Again, however, there was nothing in the record to suggest that Lambert and Weber would not be living together for an indefinite time into the future, or that Lambert was any more likely to move again sooner than Helling, who had himself moved twice after Neven's birth. Nor could the trial court reasonably infer that Lambert's past relationship history made her more likely than Helling to fail in future relationships, when the only failed relationship in evidence was that of both Lambert and Helling. While the fact that Lambert was not formally listed on Weber's lease might legally allow Weber to ask Lambert to leave at any time, there was absolutely nothing in the record to suggest any reason why he would be likely to do so.

¶ 16. We next consider the trial court's comments that Lambert's entering into a relationship with Weber, and having a child with him, showed "poor judgment," and that the court did not think it was "right" that so many paternity cases were being filed. It again appears that the trial court was relying in part upon evidence outside of the record, since the "40 to 50 to 60" monthly paternity cases upon which the trial court claimed to rely for its finding that "those" relationships (which we understand to mean between unmarried parents) were not predictable or stable were not before the court in this case.

¶ 17. In sum, we are persuaded that the trial court's finding that Lambert's living situation was "unstable" was based primarily not upon evidence in the record, but rather upon the trial court's negative view of her unmarried status. We further agree with Lambert that the trial court's comments reflect an impermissible consideration of her nonmarital relationship with a third party as a negative factor absent any showing that the relationship was harmful to the child, in violation of her associational rights. Schwantes, 121 Wis. 2d at 625.

¶ 18. The dissent correctly notes that, unlike in Schwantes, the trial court here did not explicitly condition the mother's opportunity for continued physical placement upon the termination of her third-party relationship. We see little practical distinction, however, between an order which forces a parent to choose between a third-party relationship or continued periods of physical placement and one which denies equal or primary physical placement based upon an existing third-party relationship. In each instance, the parent's choice to associate with a third-party ultimately affects the amount of time the parent will have with his or her child. Accordingly, we believe that showing a significant adverse affect upon the child is a necessary prerequisite to adverse consideration of a third-party relationship. This is required to protect the same associational rights identified in Schwantes.

¶ 19. The dissent also correctly notes that the trial court's view of Lambert's living situation was not the only factor in its decision. If the trial court's comments in this regard had merely been made in passing, we would agree that the rest of the trial court's discussion would provide a reasonable basis for its decision. But the trial court itself noted that many of the other factors it considered "really don't cut either way." Lambert's living situation was one of the few main factors the court focused on in making its decision. It is impossible to know what conclusion the trial court would have reached had it not relied heavily on Lambert's living situation to reach that conclusion. Because the trial court lacked a sufficient factual basis for a finding upon which it relied heavily in making its placement decision, we conclude that it erroneously exercised its discretion.

¶ 20. We emphasize that we are not holding that a trial court cannot consider whether a parent's particular lifestyle choices have an impact on the best interests of a specific child. Findings regarding instability in living conditions must, however, be based upon evidence specific to the individual case, not generalizations. There was insufficient evidence here from which the trial court could have made a finding that Lambert's relationship was so unstable as to adversely impact the child. We therefore remand to have the trial court reconsider the placement decision in this case without treating Lambert’s relationship with Weber as a negative factor.

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

DEININGER, RJ.

¶ 21. (dissenting). The majority concludes that the trial court impermissibly considered Lambert's "nonmarital relationship with a third party as a negative factor absent any showing that the relationship was harmful to the child." Majority at ¶ 17. Because I conclude that the trial court did not base its placement decision on the fact of Lambert's "nonmarital relationship with a third party," but on the relative predictability and stability of the parents' present living arrangements, as well as on several other permissible factors, I respectfully dissent. In my view, the trial court applied the correct law to the relevant facts and reasoned its way to a reasonable conclusion, one that a reasonable judge could reach on the present record. See Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982). There is thus no cause for this court to disturb the trial court's discretionary decision and I would affirm it.

¶ 22. The majority takes the trial court to task for making what it deems unsubstantiated and impermissible inferences regarding Lambert's relationship with Mr. Weber. It does so after excerpting and isolating only a small part of the trial court's bench decision. In order to determine whether the court erroneously exercised its discretion, however, we must consider the remarks quoted at paragraph 11 of the majority opinion within the context of the parties' arguments and the court's entire ruling.

¶ 23. The child's guardian ad litem recommended that Helling have primary placement. In his written report to the court, the guardian ad litem commented on each of the factors set forth in Wis. Stat. § 767.24(5) (2001-02). He explained that his recommendation was based on concerns that Lambert "may not be fostering a significant relationship with Neven and his father" and that she "has a history of some emotional/mental difficulties." The guardian ad litem had "almost no concerns" regarding Helling and his ability to care for his son. He renewed his recommendation in favor of Hell-ing at the conclusion of the custody hearing, citing in addition a concern over Lambert's "present living situation" where she had no "enforceable right" to remain in her boyfriend's residence "if something went bad" in the relationship.

¶ 24. Helling's counsel agreed with the guardian ad litem's report and analysis, and he emphasized the stability of his client's "home situation" and Helling's proximity to extended family who had strong bonds with the child and assisted with child care. Counsel contrasted that to Lambert's circumstances:

Now she finds herself with all due respect in another situation like she was earlier.... She has another child on the way now. She is in the same spot, and it's not very long down the road where they will have to work out problems they created for that child. I think that shows a lack of maturity and stability on her part, you know. They are living in a situation she has no ownership. I mean, she is basically a tenant, you know, at will of a "boyfriend".... I think it shows a lack of maturity, lack of judgment and lack of forethought.

Lambert's counsel emphasized the advantages of the placement plan Lambert favored, asserted that she had been the child's primary caregiver, and responded to the "living situation" issue by noting that Lambert had maintained stable, long-term employment and thus had "income appropriate to make adjustments in case there were other things that might change."

¶ 25. Given the guardian ad litem's recommendation and counsel's arguments, it is not surprising that the trial court commented in its ruling on Lambert's present living situation. The majority agrees that the trial court could "reasonably consider the stability of each parent's living situation." Majority at ¶ 15. That is precisely what the court did in the excerpt quoted at paragraph 11 of the majority opinion.

¶ 26. The court deemed Lambert's living situation to be less predictable and stable than Helling's, but that was not the court's only consideration in awarding Helling primary placement. The court began its ruling by noting that it was making an initial placement decision, not considering whether to modify an existing placement arrangement. It then made routine findings of fact regarding the parties and the child, followed by an extensive discussion of the placement issue:

Under all of the testimony of the parties both parties are fit and proper persons to have the care, custody and control of the minor child of the parties. Both parties are good people. Both parties are good parents. The child is doing well. The child is in good health mentally and physically. The child is well adjusted at present to his situation and both homes. The child interacts well with both parents. Both parents have spent quality time with the child in the past. Both parents are capable of providing the child's needs and caring for the child on a daily basis.
So I'm asked to make a judgment about which would be the best parenting situation for the child. Now in doing that, first of all, I have a guardian ad litem appointed. He is appointed by the Court. The guardian ad litem makes a recommendation to the Court. The guardian ad litem represents the child ... in the child's interests and doesn't represent either parent's interests.
We have independent contract guardian ad litems in our county. The reason is we hope they develop some expertise, and also they're beholden to no one. They are beholden only to the Court. I expect when I appoint a guardian ad litem from contract guardian ad litems, that I will get a conscientious, diligent and fair, unbiased opinion about what the guardian ad litem thinks is in the best interests of the child. And when I do so, I think it's incumbent on the Court to listen to what the guardian ad litem says.
[The guardian ad litem] has recommended based on his investigation, his discussion with the parties, based on him sitting through the testimony here that Mr. Helling be primary care provider and have primary placement of the child. That is a factor in the Court's decision. It's not the only factor.
Now, there are a lot of superficial reasons that are indicated here, and some of the reasons are well, Mr. Helling is a bad parent because he is taking his youngster around on the lawn mower, or Mr. Helling is a bad parent because he is giving his youngster a ride on the sidewalk on a motorcycle. You know, these are side issues. The real fundamental issue here is I have always said stability and predictability. And some of you have practiced before me more than others, but fundamentally, I think it's the Court's obligation to figure out what the best parenting situation is that will give the youngster a place he can call home and to have that place be predictable and stable.
And what I try to sort out above all when I am making a decision in these cases is where that's going to occur. Now, the factor that I am talking about here, I think I have already addressed most of the factors under the custody proposal or custody criterion under 767.24(5). The factor that I practically harp on is the need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child.
... One of the main factors here that concerns the Court probably the most and that is this, Ms. Lambert, you are not in a predictable and stable situation. That concerns me. You are not in a predictable and stable situation because, you know, you recently established a relationship with Mr. Weber.
[Material quoted at ¶ 11 of majority opinion.]
Now, Ms. Lambert, you are a good mom. There is no question about it, and it makes my decision a lot harder because while you have got that factor against you, you certainly are a good mom, and you have done a heck of a job raising this youngster, and that makes this decision harder.
On the other hand, Mr. Helling, you have done a pretty good job too, sir, and I think you have been a good father to this youngster. I think you have developed a good relationship with him, and I think you've demonstrated that if your cooking isn't all that great, at least it's improving. You are willing to learn, and that's the important thing, and the good things of life aside, the most important thing in any child's life is love and affection for the child, parenting the child, creating a strong family ethic in the child, and I think that Mr. Helling, that benefit has to go to you.
You have a solid family background. I'm impressed by the care services that you are offering. I'm not denigrating Ms. Helling’s care services, but the family loves — there is just no doubt in my mind the family loves that child, and the care provider, boy, they will do a heck of a job. But they are getting paid, and that’s why they are there. And there is a lot of difference, and when I was watching [Helling’s] sister up here, I was touched by the emotion that she showed when she was talking about how much she cared about that youngster and what she was prepared to do for that youngster.
I think the childcare situation definitely goes to Mr. Helling. Now, in short, when I look at the factors, and the rest of the factors really don't cut either way, there isn't any drug or alcohol problem. There isn't any abuse problem. They both are good people. I don't have any appropriate reports of professionals. There won't be any. There is no reason to. You folks are both well-adjusted people, and you are doing a good job with this child. He is doing well.
Now, [Lambert's counsel], the matter of inertia is a powerful argument in child custody matters. There is no question about that, and that is what the child is, well adjusted. It's Newton's first law of physics. Things that are at rest tend to remain at rest and things in motion tend to remain in motion. These things are at rest. Maybe Court should leave them at rest, but I think that the law of inertia, which is really what you are talking about, is not as big a factor as it normally would be in court decisions. Because while it's true mom has been the primary caretaker, we are talking about a child that's two and a half years old.
We are also talking about a child that's well adjusted to home changes. As you indicated, he had his home changed two or three times. He has had child care changes. He keeps right on going. He does well, and if this child were, you know, 13 or 14 and a hell raiser and gets along well with dad or mom and not the other side and that had been the arrangement, that's a different matter for the issue of inertia or continuation of an existing relationship.
But that's not so here. This child will do well. He can make adjustments, and so if you had to capsulize my basis for my decision, I would say it's this. We got two good parents. We got two good situations as far as relationships with the youngster. The child is doing well, but I am concerned about predictability and stability in Ms. Lambert's relationship with Mr. Weber, and I don't think that's a predictable or stable situation. Tm also concerned about the type of care that Mr. Helling can give [through] his family and his family support system, which I think is a big factor in my decision.
And last, it's very hard for Court given the finding 1 have made to go against the recommendation of the guardian ad litem in this case who has done a very able and conscientious job in this matter. I commend him for it. My judgment is going to be I will conclude that it's in the best interests of this child that the primary placement be with the petitioner David Helling.

(Emphasis added.)

¶ 27. Thus, when the remarks the majority finds objectionable are placed in the context of the court's entire ruling, it becomes apparent that the court's decision was not based "primarily... upon the trial court's negative view of [Lambert's] unmarried status." Majority at ¶ 17. Taken as a whole, the court's bench decision shows that it awarded Helling primary placement because of three factors: the greater "predictability and stability" of his living situation, the proximity and availability to Helling of intra-family childcare providers, and the guardian ad litem's recommendation in favor of primary placement with Helling. I cannot conclude that any of these factors are inappropriate or that the trial court's reliance on them constituted an erroneous exercise of discretion.

¶ 28. Finally, I note that the majority believes that our decision in Schwantes v. Schwantes, 121 Wis. 2d 607, 360 N.W.2d 69 (Ct. App. 1984), compels a reversal here. It does not. The trial court in Schwantes conditioned its award of custody to the mother on her terminating a relationship with a third party, and when she failed to terminate the relationship, transferred custody of the children to the father. Id. at 619-21. Our holding was explicit and limited:

We conclude that sec. 767.24(2), Stats., cannot be construed to confer upon the trial court the power to condition an award of custody on the termination of the custodial parent's relationship with another in the absence of a showing that the relationship has a significant adverse affect upon the children.

Id. at 625-26.

¶ 29. The trial court in this case did not condition Lambert's opportunity for physical placement of the child on her terminating her relationship with Mr. Weber. In fact, in addition to awarding the parties joint legal custody, the court gave Lambert placement of the child every week from 4:00 p.m. Thursday through 5:00 p.m. Friday, and on alternate weekends extending through Sunday evening at 7:00 p.m., plus two uninterrupted weeks in the summer and holidays as agreed upon by the parties. Nowhere does the court require or even suggest that Lambert could have these placement periods only if she terminated her relationship with Weber or moved out of his residence. Neither did the court require that Weber not be present during Lambert's periods of placement.

¶ 30. In short, the trial court made no negative comments whatsoever about Lambert's relationship with Weber per se. It concluded only that Lambert's present living situation was not as predictable and stable as Helling's. Nothing in Schwantes prohibits the court from reaching this conclusion or from considering it as a factor in awarding primary placement.

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

       Helling contends that Schwantes is inapplicable here because that case involved the modification of an initial placement. However, because the modification in that case was based upon the violation of a condition set forth in the initial placement decision, the court did in fact analyze the topic of third-party relationships in the context of initial placement decisions.

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


author: WEDEMEYER, PJ.

text:
    In re the Termination of Parental Rights to Reynaldo F., a Person Under the Age of 18: Reynaldo F., by Guardian ad Litem, Carol C. Petersen, Petitioner-Appellant, Modesto F., Petitioner, v. Christal M., Respondent-Respondent.

    Court of Appeals

      No. 03-2687.

      Submitted on briefs March 2, 2004.

    Decided April 6, 2004.

    2004 WI App 106
    (Also reported in 681 N.W.2d 289.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Carol C. Petersen, Legal Aid Society of Milwaukee, Inc., Guardian ad Litem Division, Milwaukee.
    On behalf of the respondent-respondent, the cause was submitted on the brief of Christopher L. Hartley, Milwaukee.
    Before Wedemeyer, PJ., Fine and Curley, JJ.

       Petition to review denied 6-8-04.

   WEDEMEYER, PJ.

¶ 1. Reynaldo E, by his guardian ad litem, Carol C. Petersen, appeals from an order dismissing a petition seeking to terminate the parental rights of the mother, Christal M. Petersen asks us to reverse the order and remand for a new trial based on two trial court errors: (1) the trial court erred in ruling that it had to dismiss the ground for termination based on commission of a serious felony because Christal's appeal of the conviction was still pending; and (2) the trial court erroneously exercised its discretion in excluding evidence related to the life and death of Reynaldo's twin brother, Raymon. Because the mother's appeal of her conviction was challenging solely the sentence and not her guilt, the trial court erred in dismissing the ground for termination based on Wis. Stat. § 48.415(9m) (2001-02); moreover, the trial court also erroneously exercised its discretion in excluding evidence regarding Reynaldo's twin. Accordingly, we reverse the order and remand for a new trial.

BACKGROUND

¶ 2. On July 18, 2001, Christal gave birth to twin boys, Reynaldo and Raymon. The first nineteen days of their lives were apparently without incident. On the twentieth day, Christal became angry and frustrated by the twins' crying. She was sitting on the couch holding Raymon while Reynaldo was lying on the couch, crying. Christal stood up and threw Raymon across the room toward his car seat. His head hit the floor and a chair leg. She then placed Raymon in his car seat and secured him. Christal proceeded to pick Reynaldo up off the couch. She lifted him over her head and threw him across the room toward his car seat. Raymon died and Reynaldo sustained two fractures to his skull.

¶ 3. After throwing the babies, Christal went outside and sat on the front porch stoop for about thirty minutes before returning to check on the babies. When emergency personnel and the police were summoned, Christal told them that two visiting children, ages three and four, must have caused the injuries to the twins. When Christal was told that the injuries could not have been caused by young children, she confessed.

¶ 4. On August 10, 2001, Christal was charged as a result of this incident. On December 17, 2001, she entered a no contest plea to second-degree reckless homicide and child abuse-recklessly causing great harm. On February 1, 2002, she was sentenced to twelve years, six years' initial confinement for Raymon's death, and seven years, three years' initial confinement for Reynaldo's injuries. Her postconviction motion seeking sentence modification was denied. In April 2003, Christal appealed her conviction, challenging only the sentencing decision.

¶ 5. On January 17, 2003, the petition seeking to terminate Christal's parental rights was filed. It presented three grounds for termination: (1) child abuse for seriously injuring Reynaldo after killing his twin brother, Raymon, pursuant to Wis. Stat. § 48.415(5); (2) failure to assume responsibility for not having a substantial parental relationship with Reynaldo pursuant to Wis. Stat. § 48.415(6); and (3) commission of a serious felony against one of the person's children, pursuant to Wis. Stat. § 48.415(9m). The child abuse ground for termination was voluntarily dismissed at the final pretrial. Also, at that time, Christal moved to dismiss the § 48.415 (9m) ground, on the basis that this statute cannot be used until the judgment of conviction is final. She argued that because her conviction was pending on appeal, it was not final. The trial court, relying on Monroe County v. Jennifer V., 200 Wis. 2d 678, 681, 548 N.W.2d 837 (Ct. App. 1996), agreed with Christal's argument and dismissed this termination ground. As a result, the only ground presented to the jury was failure to assume parental responsibility.

¶ 6. Before trial, the court also granted Christal's motion to exclude all evidence relating to the existence of Raymon, the twin brother. The trial court ruled that although the evidence was relevant, it was unduly prejudicial. The jury trial occurred in June 2003. The jury found that Christal had not failed to assume parental responsibility for Reynaldo. The trial court dismissed the termination petition. Reynaldo, by his guardian ad litem, Petersen, now appeals from that order.

DISCUSSION

A. Dismissal of Grounds for Termination Based on Serious Felony Conviction, Pursuant to Wis. Stat. § 48.415(9m).

¶ 7. Petersen argues that the trial court erred when it dismissed the termination ground based on Wis. Stat. § 48.415(9m). Christal responds that the trial court's interpretation of the statute was correct — that anytime a parent's direct appeal of a conviction is pending, there is no final judgment to form the basis for grounds to terminate under § 48.415(9m). Christal's argument was premised on the holding in Jennifer V, wherein this court interpreted the term "conviction" as used in Wis. Stat. § 48.415(5) to mean a conviction after the right of direct appeal had been exhausted. Jennifer V., 200 Wis. 2d at 681. The trial court agreed that this holding created a "bright line" rule, which prohibited a termination based on a conviction if the parent's direct appeal was still pending. Based on the reasoning that follows, we clarify the holding in Jennifer V. to prohibit termination based on a conviction when a direct appeal is still pending only if the pending appeal has raised issues challenging the parent's guilt. Accordingly, we reverse the trial court's order and remand for a new trial.

¶ 8. The interpretation of a statute, here Wis. Stat. § 48.415(9m), presents a question of law, which this court reviews independently. State v. Wittrock, 119 Wis. 2d 664, 669, 350 N.W.2d 647 (1984). Our goal in construing a statute is to ascertain the intent of the legislature. Jennifer V., 200 Wis. 2d at 682. In order to do so, we look first to the plain meaning of the language of the statute. Id. If the language is ambiguous, that is, reasonably susceptible to more than one meaning, we look to the "scope, history, context, subject matter and object of the statute" to determine the intent of the legislature. Id.

¶ 9. Wisconsin Stat. § 48.415(9m) provides that a jury may find grounds for termination of parental rights based on:

Commission of a serious felony against one of the person's children, (a) Commission of a serious felony against one of the person's children, which shall he established by proving that a child of the person whose parental rights are sought to be terminated was the victim of a serious felony and that the person whose parental rights are sought to be terminated has been convicted of that serious felony as evidenced by a final judgment of conviction.

¶ 10. It is undisputed in this case that Christal was convicted of a serious felony against one of her children. The issue in this case is whether the termination petition can assert this ground as a basis to terminate Christal's parental rights when, at the time of the termination trial, her conviction was still pending on appeal.

¶ 11. Jennifer V. held that the term "conviction" used in Wis. Stat. § 48.415(5) was ambiguous because it could reasonably be interpreted either to mean the judgment of conviction entered by the trial court or a conviction after the completion of the appeal as of right. Jennifer V, 200 Wis. 2d at 685. In Jennifer V, we based our analysis on the fact that when a direct appeal is pending, "there is a chance the judgment may be reversed ... which could result in either a guilty verdict or an acquittal." Id. at 688-89. This situation would create a lack of finality and would not promote permanency and stability for the child. Id. at 689-90.

¶ 12. We now elect to clarify the holding in Jennifer V. to account for the factual scenario presented in this case where a parent is convicted of a serious felony and files a direct appeal, which raises only a sentencing issue that will in no way affect the determination of guilt. Under these circumstances, there is no chance that the judgment of guilt will be reversed. There is no chance that a successful appeal could result in an acquittal of the conviction for the parent. Thus, the pendency of the appeal in this case does not affect the final judgment of guilty rendered by the trial court. In this situation, waiting for the appellate decision would run counter to the legislature's intent that termination cases be handled with great speed to ensure the welfare of the children involved. See Wis. Stat. § 809.107(6)(e).

¶ 13. Here, it is undisputed that Christal was found guilty of serious battery of one of her children. A judgment of conviction was entered. She filed a direct appeal challenging solely the length of her sentence. There is no possibility that the appeal will result in an innocent parent losing rights to her child. Christal's guilt has been finally determined. Thus, Jennifer V. does not apply to this case. Jennifer Vs holding is limited to appeals based on guilt or innocence. We hold that when a parent's pending appeal does not raise issues of guilt or innocence, the term "final judgment of conviction" used in Wis. Stat. § 48.415(9m) means the judgment of conviction entered by the trial court, either after "a verdict of guilty by the jury, a finding of guilty by the court in cases where a jury is waived, or a plea of guilty or no contest." Wis. Stat. § 972.13(1).

¶ 14. Based on the foregoing, we conclude that the trial court erred in dismissing the ground for termination based on the felony conviction. Accordingly, the trial court's order to that effect is reversed and this case is remanded for a new trial based on the ground for termination set forth in Wis. Stat. § 48.415(9m).

B. Exclusion of Evidence of Twin Brother.

¶ 15. Petersen also argues that the trial court erroneously exercised its discretion when it excluded all evidence related to the existence of the life and death of Reynaldo's twin brother, Raymon. Christal responds that it was reasonable for the trial court to exclude this evidence. We conclude that the trial court's decision constituted an erroneous exercise of discretion.

¶ 16. Evidentiary decisions are reviewed under the erroneous exercise of discretion standard. LaCrosse County Dep't of Human Servs. v. Tara P., 2002 Wl App 84, ¶ 6, 252 Wis. 2d 179, 643 N.W.2d 194. If the trial court considered the pertinent facts, applied the correct law and used a rational process to reach a reasonable determination, we will uphold its ruling. Id.

¶ 17. Here, the trial court agreed that the evidence of the existence and death of Raymon was relevant to the failure to assume parental responsibility ground for termination found in Wis. Stat. § 48.415(6), which provides:

FailuRe to assume PARENTAL responsibility (a) Failure to assume parental responsibility, which shall be established by proving that the parent or the person or persons who may be the parent of the child have never had a substantial parental relationship with the child.
(b) In this subsection, "substantial parental relationship" means the acceptance and exercise of significant responsibility for the daily supervision, education, protection and care of the child. In evaluating whether the person has had a substantial parental relationship with the child, the court may consider such factors, including, but not limited to, whether the person has ever expressed concern for or interest in the support, care or well-being of the child, whether the person has neglected or refused to provide care or support for the child and whether, with respect to a person who is or may be the father of the child, the person has ever expressed concern for or interest in the support, care or well-being of the mother during her pregnancy.

¶ 18. The trial court excluded the evidence because it found that the probative value of the evidence of Raymon's death was substantially outweighed by the likelihood of unfair prejudice. The trial court did state that this evidence would be admissible if "the story was incomplete without Raymon," thereby causing a gap which would leave the jury confused.

¶ 19. We conclude that the story is incomplete without the evidence related to Raymon. Reynaldo was the second baby thrown. The facts demonstrate that Christal first threw Raymon and then buckled Raymon into his car seat. She then picked Reynaldo up and threw him toward his car seat. Because the trial court excluded all evidence of Raymon, Christal's counsel was able to present disingenuous arguments to the jury, including the argument that what occurred to Reynaldo was the result of a "split second of bad judgment." In reality, Christal had a chance to reconsider her behavior before throwing the second baby.

¶ 20. Further, prior convictions of a parent are not so prejudicial as to outweigh their probative value where the information would lead the jury to an understanding of why children are removed from the parent's home. State v. Quinsanna D., 2002 WI App 318, ¶ 20, 259 Wis. 2d 429, 655 N.W.2d 752. In Quinsanna, we ruled that evidence of the mother's drug convictions could be admitted into evidence because they related to the reason her children were removed from her home. Id., ¶ 20. Likewise, Christal's conviction for the death of Reynaldo's twin brother is relevant to whether she provided for the care and well being of the surviving twin.

¶ 21. Excluding Raymon's existence and death prevented the jury from hearing the complete story. It also resulted in having to redact large portions of documentary evidence, including police and medical reports, to erase any mention of Raymon. The facts of the case had to be altered, resulting in false testimony presented to the jury — one officer had to testify that certain acts Christal did to Raymon were actually done to Reynaldo. Christal was able to testify as to her difficulties during pregnancy, but the jury could not be told that the difficult conditions were typical of multiple birth pregnancies. Christal was allowed to tell the jury that she provided a bassinet for Reynaldo as evidence that she was taking care of his needs. However, the jury could not be told that the single bassinet served as a bed for both twins to share.

¶ 22. The facts involving these twin boys were so interconnected that excluding the existence and death of one resulted in an untrue and incomplete story being presented to the jury. Although we agree with the trial court that the homicide of Raymon may be prejudicial, we disagree that it was so unduly prejudicial as to substantially outweigh the probative value of the existence and death of Raymon. The evidence related to Reynaldo's twin brother was required for the jury to understand the circumstances surrounding Christal's ability to assume responsibility for Reynaldo. Christal's conduct toward Reynaldo could not be logically separated from his twin brother, Raymon, without the rewriting of history. Accordingly, the trial court erred in excluding such evidence. We reverse the order of the trial court granting the motion to exclude all evidence about Raymon and remand for a new trial consistent with this opinion.

By the Court. — Order reversed and cause remanded for a new trial.

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