source: Caselaw Access Project

author: CURLEY, J. SCHUDSON, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Vaughn Thurmond, Defendant-Appellant.
    Court of Appeals

      No. 03-0191-CR.

      Oral argument November 17, 2003.

      Decided February 3, 2004.

    2004 WI App 49
    (Also reported in 677 N.W.2d 655.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Ann T. Bowe of Milwaukee, with oral argument by Ann T. Bowe.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Marguerite M. Moeller, assistant attorney general, and Peggy A. Lautenschlager, attorney general, with oral argument by Marguerite M. Moeller.

    Before Wedemeyer, PJ., Schudson and Curley, JJ.
   CURLEY, J.

¶ 1. Vaughn Thurmond appeals the judgment convicting him of second-degree sexual assault, and kidnapping as a habitual criminal, contrary to Wis. Stat. §§ 940.225(2)(a), 940.31(l)(b), and 939.62 (2001-02). Thurmond argues that the trial court erroneously exercised its discretion by failing to declare a mistrial after the jury indicated it was deadlocked. He also claims that the trial court erred when, after learning that the jurors believed they were deadlocked and reading them a supplementary instruction urging them to resolve the case, it granted the State's request to instruct the jury on two lesser-included offenses. Because Thurmond never moved for a mistrial, he has waived the right to raise this issue. However, we are satisfied that, under the specific facts of this case, giving the jury post-summation lesser-included offense instructions resulted in unfair prejudice to Thurmond. Consequently, we reverse.

I. Background.

¶ 2. Stefanie E reported to the police that while she was walking home from work in the late evening of September 8, 2001, a man came up behind her, grabbed her, pressed what she believed to be a knife against her throat, and pushed her across the street into a used car lot. Once there, the man went through her empty pockets, opened a car door, pushed her inside and sexually assaulted her for approximately thirty minutes, all the while holding the knife. After her assailant laid the knife down on the dashboard, she escaped by pushing him, getting up, and running away. She ran to a corner tavern where she saw someone she knew, who then walked her home. Once home, Stefanie E told a friend what had occurred. Her friend took her to a local hospital, and the police were called.

¶ 3. Later that same evening, the police took Stefanie E to the crime scene where she was shown a driver's license issued to Thurmond. She identified the picture on the license as that of her assailant. Several days later, she also picked him out of a lineup. The original criminal complaint charged Thurmond with first-degree sexual assault and kidnapping while armed. At the preliminary hearing, Stefanie E admitted that while she believed her assailant" had a knife, she never actually saw it. She also testified that her assailant asked her for money. Thurmond was bound over for trial.

¶ 4. After the preliminary hearing, the State filed an amended information adding a count of attempted armed robbery to the original charges. A jury trial was eventually held and both Stefanie E and Thurmond testified. Stefanie E described the events in a manner similar to her preliminary hearing testimony, except that she now claimed to have seen the knife. Thurmond, on the other hand, claimed that his encounter with Stefanie E was a romantic one. He testified that they were walking toward each other on the same street and he engaged her in light banter that led to her willingly accompanying him to the car. He vigorously denied ever having or displaying a knife. He told the jury that she consented to having sex with him in the back seat of the car. He described how she removed her own panties and how they had sex in several different positions. He explained to the jury that, after approximately thirty-five minutes, Stefanie E suddenly acted like she was in a hurry, got up, dressed and left. He claimed that he gave her his name and telephone number on a piece of paper.

¶ 5. Following the close of testimony, the trial court held a jury instruction conference. At the conference, the State did not request the court to give any instructions regarding lesser-included offenses. After the instruction conference, the attorneys gave their closing arguments. The jury then began its deliberations on June 24, 2002, at approximately 11:00 a.m. When the jury did not reach a verdict by late afternoon on June 24, the trial court ordered them to resume deliberations at 8:30 a.m. the next day. What occurred during the jury's deliberations on June 25 and June 26 is not entirely clear. What we do know is that the jury sent out several notes to the trial court, but the court failed to either preserve or read all of them into the record, despite its statement that it would do so. On the morning of June 25, the trial court assembled the parties and advised them:

I have you here because of the questions I have been receiving from the jury. The latest question indicates that [the jury] need[s] to be reinstructed, especially on the reasonable doubt issues. ["]What is the difference between personal and, parentheses, shadow of a doubt and reasonable doubt based on evidence from testimony [?]"

The trial court also remarked:

It appears to me that they are [making every effort to deliberate] because in some of the questions they do indicate - and I will read those questions into the record at the appropriate time, but they do indicate the fact that they are taking votes and what their totals are.
At this point I'm not really sure where they are going with these questions, but I just felt the need to sort of bring them in and reinstruct them on the burden of proof and presumption of innocenceL]

Shortly thereafter, the following colloquy occurred:

; [THURMOND'S ATTORNEY]: Judge, you had made reference to two other notes. I'm assuming that you are not going to make reference to those?
THE COURT: Well, I'm not going to make reference to those notes.
Essentially the questions - the question before this one indicated that, you know, essentially they were not in complete agreement. I indicated to them that I could reinstruct them, and I believe it's 805 - 805.13(5), which indicates after the jury retires, the court may reinstruct the jury as to all or any part of the instructions previously given and may give supplemental instructions as it deems appropriate, so I indicated to them that I could reinstruct them - reinstruct them, as well as speak to the need to continue deliberations.
[THURMOND'S ATTORNEY]: Thank you.
THE COURT: And then what has resulted is this next question that they somehow need reinstructing on burden of proof. So I'm going to do that, indicate to them that they are to continue to deliberate, and then just send them back in so they can continue to deliberate.

Following this exchange, the trial court brought the jury into the courtroom, made reference to the questions sent by the jury, and reinstructed them on the definition of reasonable doubt. The jury was then sent back to deliberate.

¶ 6. Some time later on June 25, the trial court re-assembled the parties and advised them that the jury had sent another note:

All right. At this time I've had the matter called. I've indicated that - before the case was called, what the question was, and I'm going to read it into the record at this point. ["]We are still at a standstill on our vote. We have reviewed the evidence, we have discussed, we have backtracked our conversations to make sure we are not speculating and searching for doubt. We have three jurors who find Stefanie P[.]'s credibility in question. We know you want us to deliberate, but we need a new way to approach deliberations to move us forward. ["]

Following receipt of this question, the trial court decided to read the supplemental jury instruction, Wis JI — Criminal 520, which urges the jury to try to resolve the case. No objection was made to the trial court's proposed instruction and the trial court instructed the jury accordingly.

¶ 7. Several hours later, the trial court went back on the record stating that it was 4:00 p.m. on the second day of deliberations, and noting that the jury had indicated that it answered one of the verdict questions. The bailiff informed the court that the jury indicated that it needed more time to deliberate. After this discussion, the trial court went back on the record and announced that the State was moving the court to instruct the jury on lesser-included offenses. The State wished to have the trial court read the jury instruction for second-degree sexual assault, as a lesser-included offense of first-degree sexual assault, and the jury instruction for attempted strong arm robbery, as a lesser-included offense of attempted armed robbery.

¶ 8. In granting the State's motion, the trial court revealed for the first time that the jury had previously inquired about lesser-included offenses:

I'll indicate that as they've been deliberating for about 14 hours, there was a question with respect to the - the jury had a question with respect to the lesser included. My response at that time was that it is not a proper instruction, but at this time now the State has moved for the lesser included.

The next morning, which began the third day of deliberations, the trial court read the jury the instructions for the lesser-included offenses and gave them additional verdict forms over Thurmond's objection. With respect to additional argument by counsel, Thurmond objected to any additional closing arguments by either side. His attorney reasoned:

Judge, as I view the case law, it seems to say that there would be the possibility of further summation by the attorneys or further closing argument by the attorneys, and for strategic reasons I want the record to reflect that we are not asking the Court for that opportunity, specifically because of the questions that have come out of jury deliberations.
It would give counsel for the State, particularly, the opportunity to answer all of those questions, and we don't want that to be done. So I have consulted with Mr. Thurmond about that, and he definitely does not want me to make any further summations.
Then I just want to restate our objection to the process, and that is primarily because it would seem to be that the jury is likely to take this as an opportunity to possibly - in the Court's view that maybe they would - maybe they should find a lesser offense. Somehow they may feel that this is their out, and that the Court is providing them an out.

The State agreed that no additional argument would be made.

¶ 9. After receiving the new instructions, the jury began deliberating at approximately 11:45 a.m. At approximately 1:30 p.m., presumably after a lunch break, the jury reached a verdict finding Thurmond guilty of second-degree sexual assault and kidnapping, but without the use of a dangerous weapon, and not guilty of attempt armed robbery. Just prior to reading the verdict, the trial court stated that yet another jury question had been sent:

I will indicate that we do have a verdict. There was one question, and the question essentially related to what "seize" meant, and whether or not being held forcibly is the same as being seized. I can't recall the exact wording of the question, but I referred them to the instruction on kidnapping and the third element that defines what "seized" means.
The second part of the question was, was this double jeopardyt?] I indicated to them that that is not an issue for deliberations. That is what I left it at, and that was the question.
At this point they have a verdict. Are there any issues that need to be addressed before we bring in the jury?
I will also indicate, too, that I tried to keep some of the questions, but I would answer the question on the same sheet of paper and send it back to them. I had the bailiff inquire as to whether or not they have the questions, and they don't have the questions. So what I'm going to do after the verdict is received, depending on what it is, I will go back and speak with them briefly and I will come hack and hear any arguments at that time on any matters.

Following the verdict, Thurmond was sentenced to fifteen years' confinement to be followed by ten years of extended supervision on count one, and ten years of confinement to be followed by twenty years' extended supervision on count two. Thurmond did not bring any postconviction motions.

II. Analysis.

A. Thurmond waived his right to argue the trial court should have granted a mistrial.

¶ 10. Thurmond argues that the "trial court committed reversible error in failing to declare a mistrial in [his] case." He posits that when the jury sent a note indicating that it was deadlocked, the trial court, sua sponte, should have declared a mistrial. The decision to declare a mistrial is within the sound discretion of the trial court. State v. Copening, 100 Wis. 2d 700, 710, 303 N.W.2d 821 (1981). When no mistrial is declared, our review of this issue is limited to whether the trial court erroneously exercised its discretion in refusing to do so. See State v. Pankow, 144 Wis. 2d 23, 47, 422 N.W.2d 913 (Ct. App. 1988). Here, however, Thurmond failed to move the court for a mistrial. As a consequence, he may not raise this issue on appeal. State v. Rogers, 196 Wis. 2d 817, 825-27, 539 N.W.2d 897 (Ct. App. 1995) (failure to raise specific challenges in the trial court waives the right to raise them on appeal); see also State v. Holt, 128 Wis. 2d 110, 124-25, 382 N.W.2d 679 (Ct. App. 1985). Moreover, Thurmond cites no law requiring a trial court to declare a mistrial on its own motion.

B. Under the circumstances presented here, the trial court erred when it instructed the jury on the lesser-included offenses.

¶ 11. Thurmond next argues that the trial court committed reversible error in permitting the post-summation instructions on lesser-included offenses. Thurmond does not dispute the fact that second-degree sexual assault is a lesser-included offense to first-degree sexual assault or that attempted strong arm robbery is a lesser-included offense of attempted armed robbery. Rather, his argument is two-fold: (1) he submits that it was error to give the instructions because lesser-included offense instructions are permitted only when there is a reasonable basis in the evidence for the jury to acquit on the greater offense and to convict on the lesser offense, and here, no reasonable basis existed to acquit on the greater offense and convict on the lesser offense; and (2) he submits that the timing of the giving of the instructions was unfairly prejudicial because the jury had earlier been told that lesser-included instructions were inappropriate, and by giving the lesser-included instructions late in the deliberations, the jury may have felt that the trial court was endorsing a finding of guilt to the lesser-included offenses. We agree with Thurmond's second argument. Because of our decision in this issue, it is not necessary for us to address Thurmond's first argument. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need be addressed).

¶ 12. A trial court has wide discretion as to which instructions it will give to a jury. McMahon v. Brown, 125 Wis. 2d 351, 354, 371 N.W.2d 414 (Ct. App. 1985). The instructions must fully and fairly inform the jury as to the applicable principles of law. Runjo v. St. Paul Fire & Marine Ins. Co., 197 Wis. 2d 594, 602, 541 N.W.2d 173 (Ct. App. 1995).

Even if we determine that a circuit court has committed an error in administering a jury instruction, we must assess whether the miscue constitutes reversible error, that is, whether the "substantial rights" of a litigant have been affected. [As such, f]or an error "to affect the substantial rights" of a party, there must be a reasonable possibility that the error contributed to the outcome of the action or proceeding at issue. A reasonable possibility of a different outcome is a possibility sufficient to "undermine confidence in the outcome."

Nommensen v. American Cont'l Ins. Co., 2001 WI 112, ¶¶ 51-52, 246 Wis. 2d 132, 629 N.W.2d 301 (citations and footnote omitted).

¶ 13. Wisconsin Stat. § 972.01 directs that the same rules regarding juries apply in criminal jury trials as in civil actions. Wisconsin Stat. § 805.13 sets out the rules regarding jury instructions in civil actions. Wisconsin Stat. § 805.13(5) authorizes the trial court to reinstruct the jury after deliberations have begun: "After the jury retires, the court may reinstruct the jury as to all or any part of the instructions previously given, or may give supplementary instructions as it deems appropriate." Thus,

as a general rule, it is within the province of the court to recall a jury for supplemental instructions, but it is considered the better practice to admonish the jury not to place undue emphasis on the supplemental instructions and to consider them in conjunction with the entire charge.

Leach v. State, 552 S.W.2d 407, 408 (Tenn. Crim. App. 1977).

¶ 14. We find little guidance in Wisconsin law on the question raised on this appeal, i.e., can a judge instruct on lesser-included offenses after the jury has been deliberating? Several other jurisdictions have, however, addressed the issue. While it appears that some courts have adopted a per se rule establishing that giving a belated lesser-included instruction is prejudicial error, "[t]he weight of state authority holds that it would not be appropriate to adopt a per se rule which would declare the belated giving of any [lesser included offense] instruction to be prejudicial error." See United States v. Welbeck, 145 F.3d 493, 496 (2d Cir. 1998) (citation omitted). All courts have expressed some concern with this procedure. In examining the issue, we first adopt the view stated in State v. LaPierre, 2000 ME 119, ¶ 21, 754 A.2d 978, that "[a] reinstruction presenting for the first time choices for lesser included offenses not presented in the initial instructions, if proper at all, would be a rare event, only done in exceptional circumstances."

¶ 15. The dangers of permitting post-summation lesser-included offense instructions are many. In Wel-beck, the court noted: "The principal concern in such circumstances [is] that the stalled jury may regard the newly furnished theory of liability as the court's recommendation to resolve the impasse by agreeing to the lesser offense." 145 E3d at 497. Courts have cautioned against the practice:

"[T]he practice . .. should be used with great circumspection, for the obvious reason that jurors, who have deliberated long upon a case, will be apt to seize on a belated instruction and give it more than its proper proportionate significance." Or as stated by another court: "The natural tendency of calling the attention of the jury specially to a certain legal principle upon which the case of one of the parties may especially depend is to magnify in the eyes of the jury any evidence which may have been adduced which is pertinent to that particular principle, and to stress the contention of one party, who may have relied upon it, to the manifest injury to the opposite party."

State v. Anderson, 185 S.E. 212, 214 (W Va. 1936) (citations omitted). Stated differently, one court, commenting on the problems post-summation instructions breed, indicated:

Moreover, the jury might very well have considered the last instruction as an intimation of the desire of the court that the defendant be convicted of some offense. Jurors exhausted by a long confinement, and naturally desirous of being released, are not in a suitable frame of mind to thoroughly consider an entirely new phase of the case under a new instruction which might fairly be construed as an expression of the court hostile to the defendant.

State v. Amos, 553 S.W.2d 700, 703 (Mo. 1977) (en banc).

¶ 16. A third danger arising from this practice that could require reversal is when "the defendant has somehow been harmed by his reasonable expectation that he faces exposure to liability only for the greater offense charged." Welbeck, 145 F.3d at 497.

¶ 17. Summarizing, then, courts have reversed cases when post-summation lesser-included offense instructions were given: when it appeared likely that the jury saw the belated instructions as a court recommendation to convict; when the timing of the instructions makes the new instruction appear overly significant, upsetting the orderly process of the trial and upsetting the defendant's right to a fair trial; when the defendant's presentation of his case is harmed; and when circumstances suggest the verdict was driven by a stalled jury's desire to disband rather than complete a fair assessment of the evidence. With that backdrop in mind, we conclude that giving the lesser-included offense instructions was unfairly prejudicial here.

¶ 18. In many of the cited cases, the jury had either been deadlocked or experiencing difficulty in reaching a verdict before receiving the lesser-included offense instructions. See, e.g., People v. Jennings, 99 Cal. Rptr. 739 (Ct. App. 1972); People v. Stouter, 75 P. 780 (Cal. 1904). Here, the trial court decided to give the new jury instructions after the jury had been deliberating for over fourteen hours and had expressed an inability to reach a verdict.

¶ 19. In many of the cases touching on the issue, the judge instructed the jury regarding lesser-included offenses on its own initiative, but in some others, the jury initiated the post-summation lesser-included offense instruction. In the present case, the jury's request for lesser-included offense instructions was originally rebuffed by the trial court, and was only resurrected when the State requested them. We must conclude that this change of heart by the trial court would lead a reasonable jury to believe that the trial court was now endorsing the new instructions. A juror might reasonably ask: why else would they be improper earlier, but proper now? The trial court's actions essentially created an environment where "[a] stalled jury may regard the newly furnished theory of liability as the court's recommendation to resolve the impasse by agreeing to the lesser offense." Welbeck, 145 F.3d at 497.

¶ 20. Additionally, the jury's relatively speedy return of its verdict suggests that not much time was spent examining the evidence in light of the new instructions. The rapid return of the verdict implicates another of the concerns voiced about this practice — the verdict may have been driven more by a stalled jury's desire to be released from its duty than its having reached a fair decision. A jury experiencing difficulty in deliberating may find the giving of a lesser-included offense instruction "coercive or at least persuasive . . . to convict of the newly-submitted offense. And it is reasonable to think that a jury could view the later instruction as an easy way out of their difficulties in reaching a decision." Amos, 553 S.W2d at 704.

¶ 21. Other facts add to our concerns. The jury's communication that it felt deadlocked and "needed a new way to deliberate" points to the conclusion that the jury used the new offenses as a way of ending their deadlock rather than reaching a unanimous decision.

¶ 22. The State submits that the problem the jury had in reaching a verdict was cured by the lesser-included offense instruction, but that does not square with what the jury relayed to the court. The note sent by the jury indicated that three jurors questioned the "credibility of the victim." This note did not state that three jurors were unsure of whether a knife was used in the attack, but rather, that they did not believe the victim. Questioning the victim's credibility could implicate any number of concerns besides the uncertain existence of a knife. Those jurors might have wondered whether there was actually an assault at all, or whether the manner in which it occurred or was described by the victim was believable. Thus, the note from the stalled jury does not support the State's view.

¶ 23. Indeed, even if the jurors' concerns over Stefanie E's credibility had to do with the existence of a knife, in a strikingly similar case, a Texas court reversed the trial court's decision to give a post-summation lesser-included instruction concerning a knife. See generally Garza v. State, 55 S.W.3d 74 (Tex. Ct. App. 2001). In that case, Garza was charged with aggravated kidnapping. The victim, Garza's ex-girlfriend, claimed that Garza forced her into her truck at knifepoint and held her for several hours. Other witnesses testified that they observed Garza force the victim into the truck, but "could not conclusively say that [Garza] held a knife while doing so." Id. at 76. Somewhat similar to the facts here, while the jury was deliberating, it sent out a note stating that nine people would find Garza guilty, and three would find him not guilty. In Garza, however, the note indicated that the problem was determining whether Garza actually had the knife in his possession. The judge then instructed the jury on the lesser-included offense of kidnapping, over Garza's objection, and the jury convicted him. In reversing, the appellate court said:

Appellant's trial counsel could have requested the inclusion of a charge on kidnapping, but he made a tactical decision not to do so. In his closing argument, counsel stressed that the victim had not been taken without her consent, and that a knife was not used. The jury's note clearly shows that the jury was hung on the issue of whether appellant used a knife in the offense. The trial court's decision to supplement the charge with the kidnapping charge effectively overrode the professional judgment of appellant's counsel that there was not enough evidence to convict appellant on the aggravated kidnapping charge and that the jury would have to acquit him.

Id. at 74.

¶ 24. Here, Thurmond's attorney argued in closing that Stefanie E's account could not be true because had Thurmond held a knife to her throat for a period of time longer than a half an hour, the knife would have left some marks or cuts on her neck, and there were none. In addition, his attorney questioned whether it was possible for someone to hold a knife in his hand for the entire length of the sexual assault. Apparently, Thurmond's strategy was to question the existence of the knife in order to challenge the truthfulness of Stefanie E's account of the incident. Like the situation in Garza, we believe that permitting the State to have additional jury instructions read to the jury that rebut the very points the defense made in closing arguments is unfair. Our system of justice permits the State to challenge the defendant's closing arguments in its rebuttal. It should not permit the State also to ask for additional substantive instructions once it realizes why the jurors may be experiencing difficulties in reaching a verdict.

¶ 25. Thus, the turnabout by the trial court in deciding to give the lesser-included instructions strongly suggests that the jury may have believed the trial court was recommending the finding of guilt to the lesser-included offenses. Further, the stalled jury's failure to reach a verdict until shortly after the post-summation jury instructions arouses suspicion that the jury failed to thoughtfully consider the lesser-included offenses and, instead, was driven by a desire to be released. Finally, Given Thurmond's defense theory, we believe Thurmond's right to a fair trial was compromised by the acts that occurred here.

¶ 26. For all of the reasons stated, we reverse Thurmond's convictions and remand for a new trial.

By the Court. — Judgment reversed and cause remanded.

SCHUDSON, J.

¶ 27. (concurring in part; dissenting in part.) For the most part, the majority has offered a thoughtful analysis with which I agree. In particular, I join in emphasizing that, although a supplemental lesser-included instruction " 'would be a rare event, only done in exceptional circumstances,'" majority at ¶ 14, we accept " '[t]he weight of state authority holding] that it would not be appropriate to adopt a per se rule which would declare the belated giving of any [lesser included offense] instruction to be prejudicial error,'" id. Here, however, I depart from the majority's application of the principles it adopts.

¶ 28. In this case, the devil may indeed be in the details and, unfortunately, some of those details are yet unknown. Let us begin, therefore, by identifying two points where the majority's factual summary may be significantly misleading.

1. The Trial Court's "Response"

¶ 29. The majority writes:

In the present case, the jury's request for lesser-included offense instructions was originally rebuffed by the trial court, and was only resurrected when the State requested them. We must conclude that this change of heart by the trial court would lead a reasonable jury to believe that the trial court was now endorsing the new instructions. A juror might reasonably ask: why else would they be improper earlier, but proper now?

Majority at ¶ 19 (emphasis added). Based on the record, however, we need not conclude that at all.

¶ 30. As the majority acknowledges, the factual foundation for its speculation is the trial court's comment: "I'll indicate that as they've been deliberating for about 14 hours, there was a question with respect to the — the jury had a question with respect to the lesser included. My response at that time was that it is not a proper instruction . . . ." But the record does not establish that the trial court's "response" was ever communicated to the jury; what the court wrote to the jury is unknown. The trial court's "response" may well have been its feeling or conclusion, never directly conveyed to the jury.

¶ 31. But, of course, now I am speculating. And while my surmise seems sound, given the absence of anything in the record reflecting any communication to the jury on this point, my view remains blurred. And, for the reasons the majority explains, exactly what occurred may be very important. So, I would ask: What exactly was the jury's question? Did the trial court answer it? If so, did the trial court state (to the jury in the courtroom or in written reply to its question) that it would he improper to consider lesser-included offenses?

¶ 32. The answers are out there; the trial judge may have most of them. So much is at stake in this very close case; resolution may depend on a more certain understanding for which an evidentiary hearing would be needed. I suggest we take the time, remand for that hearing, carefully consider exactly what took place, and get it right.

2. The Victim's Credibility

¶ 33. The majority also writes: "The note sent by the jury indicated that three jurors questioned the 'credibility of the victim.' This note did not state that three jurors were unsure of whether a knife was used in the attack, but rather, that they did not believe the victim." Majority at ¶ 22 (emphasis added). No, that is not what the note said. Reading the note as written, we do not know: (1) what those three jurors were thinking; (2) whether their questioning of the victim's credibility related to whether a knife was used; (3) whether their questioning related to something else; and (4) whether their questioning ultimately would have resulted in their disbelief of the victim and, if so, about what. Thus, the majority sets another significant point of speculation on a very shaky pedestal.

3. Conclusion

¶ 34. I conclude, therefore, that remand for further factual development may be essential to the fair resolution of this appeal. If, however, I must decide based on the present record, I would affirm, consistent with the reasoning of United States v. Welbeck, 145 F.3d 493 (2d Cir. 1998).

¶ 35. Here, as in Welbeck: (1) the jury's question may have provided the initial impetus for the trial court's consideration of the supplemental instruction; (2) Thurmond was not prejudiced, given that his consent defense, if believed, would have defeated an allegation of either first or second-degree sexual assault; (3) the trial court allowed defense counsel the chance to offer additional closing argument; and (4) a failure to offer the supplemental instruction could have defeated the ends of justice — a verdict resolving the case for both parties.

¶ 36. To gain a new trial, Thurmond was required to establish that, by providing the supplemental instruction, the trial court erroneously exercised discretion or erred as a matter of law and, as a result, that he was prejudiced by the instruction. See State v. Randall, 222 Wis. 2d 53, 59-60, 586 N.W.2d 318 (Ct. App. 1998) (Our review is limited to whether the trial court acted within its discretion and we will reverse only if the instructions, taken as a whole, communicated an incorrect statement of the law or otherwise probably misled the jury.); see also State v. Simplot, 180 Wis. 2d 383, 404, 509 N.W.2d 338 (Ct. App. 1993) (Just as the initial jury instructions are within the trial courts discretion, so, too, is the necessity for, the extent of, and form of re-instruction in response to requests or questions from the jury.) (quoted source omitted). Thurmond has failed to establish either an erroneous exercise of discretion, an error as a matter of law, or prejudice.

¶ 37. Accordingly, I conclude, the trial court's decision to provide the lesser-included instruction was consistent with its authority, under Wis. Stat. § 805.13(5): "After the jury retires, the court may reinstruct the jury as to all or any part of the instructions previously given, or may give supplemental instructions as it deems appropriate." Thus, while in some respects I concur, in others I respectfully dissent.

       Mr. Thurmond's name is spelled in two different ways throughout the record. For uniformity, we will use the traditional spelling, "Vaughn," throughout this decision.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
      A review of the judgment indicates that Thurmond was found guilty of the use of a dangerous weapon. This is incorrect. He was acquitted of the enhancer charge. On remittitur, the clerk of the circuit court is directed to correct this error.

       Although the judgment roll mistakenly refers to this date as June 24, 2002, according to the transcripts, the jury continued deliberating on June 25, 2002.

       We remind the trial court that unless there is a stipulation to the contrary, Wis. Stat. § 805.13(1) requires the court to record all communications with the jury and, pursuant to case law, a defendant has a right "to be present at trial and to have counsel at every stage where he or she needs aid in dealing with legal problems." See State v. Koller, 2001 WI App 253, ¶ 62, 248 Wis. 2d 259, 635 N.W.2d 838.

       In its motion for reconsideration, the State notes that a subsequent review of the circuit court file indicates that the jury did not, in fact, break for lunch. However, this clarification does not materially affect our analysis.

       WISCONSIN Stat. § 972.01 provides:
      Jury; civil rules applicable. The summoning of jurors, the selection and qualifications of the jury, the challenge of jurors for cause and the duty of the court in charging the jury and giving instructions and discharging the jury when unable to agree shall be the same in criminal as in civil actions, except that s. 805.08 (3) shall not apply.

       At oral argument, Thurmond contended that this court should adopt a per se rule that giving a belated lesser-included offense instruction is prejudicial error. We decline to do so.

       In United States v. Welbeck, 145 F.3d 493 (2d Cir. 1998), the trial court noted that this concern was not relevant when the jury raised the question on its own, as was the situation in that case. However, from the perspective of a juror, we can see no discernable difference between a situation when the judge decides to give the lesser-included instructions on its own and the situation here, when the trial court granted the state's request for the lesser-included instructions, as the jury would not know whether a request had been made or the trial court elected to give them on its own.

       One might argue that the jurors felt no coercive pressure because it found Thurmond not guilty of one of the lesser-included offenses, but as we learned later, the jury had already found Thurmond not guilty of the robbery charge when the belated instructions were given.

       While challenging the kidnapping charge was not the main thrust of Thurmond's brief, he has challenged the overall fairness and integrity of the trial, and it is the view of this court that the post-summation instructions on lesser-included offenses tainted all of the verdicts in this case. As has been set forth in this decision, the trial court's post-summation instructions implicate a number of concerns, and we cannot conclude that the jury's verdict on the kidnapping charge was wholly insulated from any taint.

       Regretfully, once again, we find it necessary to implore a trial court to conduct its proceedings on the record. See Coston v. Joseph P., 222 Wis. 2d 1, 7 n.5, 586 N.W.2d 52 (Ct. App. 1998) ("Here, as in all too many cases, the record is seriously deficient and a circuit court's off-the-record informality has undermined the process of appellate review. While we recognize the many temptations to indulge in off-the-record proceedings, we again urge resistance to temptation."). And, in doing so, I emphasize that we understand the real world of the trial courts. The four judges of this district have more than fifty years' experience as trial court judges. We know the logistical challenges of the courtroom — whether positioning court reporters so they can record bench conferences, or calling attorneys back to court to consider jury questions. We know it "ain't easy," but we also know it can and must be done.


author: CANE, C.J.

text:
    Dr. Sharon Kabes and Roger Buchholz, Plaintiffs-Respondents, v. The School District of River Falls and the School Board for the School District of River Falls, Defendants-Appellants.

    Court of Appeals

      No. 03-0522.

      Submitted on briefs December 1, 2003.

      Decided February 3, 2004.

    2004 WI App 55
    (Also reported in 677 N.W.2d 667.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Joel L. Alberg of Weld, Riley, Prenn & Ricci, S.C. of Eau Claire.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Jacob P. Westerhof and Mindy Rowland Buenger of DeWitt, Ross & Stevens, S.C. of Madison.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 4-20-04.

   CANE, C.J.

¶ 1. The School District of River Falls and the School Board for the School District of River Falls appeal from a summary judgment granted in favor of Sharon Kabes and Roger Buchholz. The trial court concluded the District and Board breached Kabes's and Buchholz's employment contracts by reassigning them to different schools within the school district without their agreement. The District and Board argue the summary judgment should be reversed and entered in their favor because: (1) Wis. Stat. § 118.24(3) provides them with the authority to reassign a principal and his or her assistants notwithstanding an employment contract, or (2) they reserved the right to reassign Kabes and Buchholz under the "River Falls Personnel Practices for Leadership Management Team." We affirm the judgment.

Background

¶ 2. On June 10, 1996, the Board hired Kabes by written contract to serve as the River Falls High School principal for one year. Since then, the Board offered to renew Kabes's contract for additional two-year periods on three separate occasions, and Kabes accepted all offers. By the terms of the latest agreement, Kabes agreed to be employed as the principal at River Falls High School until the conclusion of the 2002-2003 academic year, ending June 30, 2003.

¶ 3. On September 26, 2000, the Board hired Buchholz by written contract to serve as the River Falls High School assistant principal for one year. On January 15, 2001, Buchholz accepted a two-year contract extension. By this agreement, Buchholz agreed to remain employed as the assistant principal at the school until the conclusion of the 2002-2003 academic year, ending June 30, 2003.

¶ 4. However, on March 20, 2002, the District and Board unilaterally reassigned Kabes to be principal at Greenwood Elementary School and Buchholz to be assistant principal at Meyer Middle School. Their salaries, however, remained the same as provided in the contracts. Kabes and Buchholz filed suit for breach of contract and sought reinstatement to their positions at River Falls High School.

¶ 5. The trial court granted summary judgment in their favor. It concluded the District and Board breached Kabes's and Buchholz's employment contracts by reassigning them to different schools. The court found the contracts provided Kabes and Buchholz with specific positions at River Falls High School. Thus, reassigning them to other schools, without their agreement, constituted a breach of contract. In so concluding, the court rejected the District and Board's argument that they retained the power to reassign a principal and his or her assistants under Wis. Stat. § 118.24(3). The court subsequently ordered Kabes and Buchholz reinstated to their positions at River Falls, and this appeal follows.

Discussion

¶ 6. We review summary judgments de novo, applying the same methodology and standards as the trial court. See Wis. Stat. § 802.08; Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). If there are no disputed issues of material fact, summary judgment is proper where the moving party is entitled to judgment as a matter of law. Id. The interpretation of a statute also presents a question of law subject to de novo review. German v. DOT, 2000 WI 62, ¶ 7, 235 Wis. 2d 576, 612 N.W.2d 50.

I. Wis. Stat. § 118.24(3)

¶ 7. All parties agree that Kabes's and Buchholz's employment contracts specified that they were to be employed at River Falls High School. Nevertheless, the District and Board claim they retained the power to reassign Kabes and Buchholz to other schools under Wis. Stat. § 118.24(3). Section 118.24(3) states, "The principal shall perform such administrative and instructional leadership responsibilities as are assigned by the district administrator under the rules and regulations of the school board." The District and Board argue that Kabes's and Buchholz's reassignments were administrative responsibilities that they must have performed.

¶ 8. The District and Board construe Wis. Stat. § 118.24(3) as conferring power that cannot be abrogated by an employment contract. From their point of view, § 118.24(3) is immutable and preempts any conflicting contractual terms. This means that even though they contracted with Kabes and Buchholz as principals at River Falls High School for a specific period of time, they can ignore these agreements and reassign Kabes and Buchholz to different schools, provided they comply with Board policy.

¶ 9. Kabes and Buchholz, on the other hand, argue the contract is valid and takes primacy. In addition to Wis. Stat. § 118.24(1) expressly allowing for the creation of employment contracts, they point out that § 118.24(6) specifically requires mutual assent to modify an employment contract. Kabes and Buchholz claim this explicit legislative protection of employment contracts suggests that the contract trumps other statutory grants of power. Further, they argue that because their reassignment to different schools clearly was a contractual modification without mutual agreement, the Board and District breached the contract. We agree.

¶ 10. Essentially, the District and Board would construe Wis. Stat. § 118.24(3) to suggest that a principal is merely a pawn who may be required to surrender his or her position in deference to the school board's task of assigning administrative responsibilities. However, here the pawn is backed by an employment contract. Wisconsin Stat. § 118.24(1) explicitly authorizes a principal to accept employment under an employment contract. Our supreme court recently stated that an employment contract is "the antidote" to the inherent unfairness implicit in the common law employee-at-will doctrine. Bammert v. Don's Super Valu, 2002 WI 85, ¶ 13, 254 Wis. 2d 347, 646 N.W.2d 365.

¶ 11. It would be senseless for the legislature to expressly allow for the creation of employment contracts, and then to further protect these contracts from modification except by mutual assent, only to furnish the school board with the power to order the principal to carry out the board's will regardless of the contract's terms. This is the problem with the District and Board's interpretation of Wis. Stat. § 118.24(3): it creates an absurd result. If § 118.24(3) is immutable, the District and Board could ignore or change the contract when they see fit. Under this interpretation, and working with the supreme court's depiction of an employment contract, the antidote would be little more than an anodyne that comforts the principal for only as long as the school board lies dormant. Because under the District's and Board's interpretation the employment contracts are rendered empty vessels that hold no legal ramifications when a breach occurs, we must reject it. See State v. Zielke, 137 Wis. 2d 39, 51, 403 N.W.2d 427 (1987) (we must interpret statutes to avoid absurd or unreasonable results).

¶ 12. A far more reasonable interpretation is to construe Wis. Stat. § 118.24(3) and § 118.24(1) and (6) together. See Highland Manor Assocs. v. Bast, 2003 WI 152, ¶ 9, 268 Wis. 2d 1, 672 N.W.2d 709 ("Statutes relating to the same subject matter should be read together and harmonized when possible."). By its own language, the purpose of § 118.24(3) is to ensure that the principal acts at the behest of the school district. Yet, the aim of § 118.24(1) and (6) is to secure and protect administrators' positions, most likely to guarantee some stability in the public school's administration. Without balancing the power given by § 118.24(3) against the protections of § 118.24(1) and (6), the protections become useless.

¶ 13. Considering these purposes, they can be harmonized to give each provision effect with the following reasonable construction: the Board and District can require the principal to perform administrative responsibilities as long as their performance does not modify the terms of an employment contract. This construction largely retains the District and Board's power over the principal under Wis. Stat. § 118.24(3), with the only caveat being that they must honor what they have contractually agreed to before. And by this caveat, a principal's employment contract retains meaning and its protections under § 118.24(1) and (6) are preserved.

¶ 14. Applying our holding, Kabes's and Buchholz's contracts were for principal and assistant principal at River Falls High School. Neither contract contained a provision allowing for reassignment. Thus, reassignment to schools different from the one specified in the contracts constituted a unilateral modification of the contracts. Consequently, the District and Board breached the contracts by reassigning Kabes and Buch-holz without their agreement to different schools.

II. River Falls Personnel Practices for Leadership Management Team

¶ 15. Alternatively, the District and Board argue they did not breach the employment contracts because they retained the power to reassign Kabes and Buch-holz by virtue of an agreement with school administrators entitled, "River Falls Personnel Practices for Leadership Management Team." Article XI of that agreement states the District retained the right "to make assignments and transfers as necessary in the best interest of the District." On this basis, they claim Kabes's and Buchholz's reassignments were justified. We are not persuaded.

¶ 16. The District and Board rely on either the 1999-2001 or 2001-2003 versions of this agreement to justify the reassignments. However, as to the earlier version, the District and Board cannot rely on it because, by its own terms, it expired on June 30, 2001. Again, the District and Board unilaterally reassigned Kabes and Buchholz on March 20, 2002, nearly nine months after the agreement terminated.

¶ 17. The District and Board nevertheless argue the 1999-2001 agreement remained in effect until the 2001-2003 agreement became operational on October 21, 2002. They claim: (1) past practice establishes an expired agreement continues until a new agreement is made, and (2) the District continues its bargaining agreements with its teachers after they expire, therefore the agreement with the administrators should likewise be extended.

¶ 18. However, there is nothing ambiguous about the agreement terminating on "June 30, 2001." Thus, the District and Board's arguments cannot alter the agreement's plain and unambiguous language. See Borchardt v. Wilk, 156 Wis. 2d 420, 427, 456 N.W.2d 653 (Ct. App. 1990) ("Where the terms of a contract are plain and unambiguous, we will construe it as it stands."). Therefore, the District and Board cannot rely on the 1999-2001 agreement to justify Kabes's and Buchholz's reassignments.

¶ 19. Regarding the 2001-2003 version, it cannot justify the District and Board's reassignments for three reasons. First, as noted above, the 2001-2003 agreement did not become operational until October 21, 2002, nearly six months after the District and Board reassigned Kabes and Buchholz. Second, while other administrators entered into this agreement, Kabes and Buchholz actually refused to sign it. Third, Kabes's and Buchholz's employment contracts did not incorporate this agreement's terms. Stated simply, Kabes and Buchholz cannot be bound by the terms of an agreement to which they never agreed. See Madison Gen. Hosp. v. Haack, 124 Wis. 2d 398, 404, 369 N.W.2d 663 (1985) ("Express contracts and contracts implied in fact rest on the assent of the parties."). Consequently, Kabes's and Buchholz's reassignments cannot be justified on the 2001-2003 agreement.

By the Court. — Judgment affirmed.

       At the time of rendering this decision, the contracts have expired. As a result, this case is arguably moot. However, we have the discretion to address an issue that is otherwise moot when the issue presented is of great public importance and is likely to arise again. State v. Trent N., 212 Wis. 2d 728, 735, 569 N.W.2d 719 (Ct. App. 1997). This case presents a statutory question of first impression: whether a school board's power to assign its administrators administrative responsibilities under Wis. Stat. § 118.24(3) preempts an administrator's employment contract created by § 118.24(1) and (6).
      Quite simply, this issue draws attention to the dynamics between administrators and school boards when the school boards retain administrators by employment contracts. For this reason, coupled with the fact that this issue concerns the stability of public schools, we conclude this is a matter of great public importance. And with most school administrators working under employment contracts that statutorily cannot exceed two years, we also conclude this issue is likely to arise again. Therefore, we exercise our discretion to address the issue.
      All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       To squarely address this issue, we assume that the rules and regulations of the Board were in place at the time of the transfer. As seen in the next issue below, however, the rules and regulations, the "River Falls Personnel Practices for Leadership Management Team," had expired when the District and Board reassigned Kabes and Buchholz to different schools.
      We further assume, but do not decide, that a reassignment is an "administrative responsibility" for purposes of Wis. Stat. § 118.24(3).

       Wisconsin Stat. § 118.24(1) states:
      A school board may employ a school district administrator, a business manager and school principals and assistants to such persons. The term of each employment contract may not exceed 2 years. A contract for a term of 2 years may provide for one or more extensions of one year each.

       Wisconsin Stat. § 118.24(6) reads in full:
      The employment contract of any person described under sub. (1) shall be in writing and filed with the school district clerk. At least 4 months prior to the expiration of the employment contract, the employing school board shall give notice in writing of either renewal of the contract or of refusal to renew such person's contract. If no such notice is given, the contract then in force shall continue in force for 2 years. Any such person who receives notice of renewal or who does not receive notice of renewal or refusal to renew the person's contract at least 4 months before the contract expiration shall accept or reject the contract in writing on or before a date 3 months prior to the contract expiration. No such person may be employed or dismissed except by a majority vote of the full membership of the school board. Nothing in this section prevents the modification or termination of an employment contract by mutual agreement of the parties. No school board may enter into a contract of employment with any such person for a period of time as to which such person is then under a contract of employment with another school board. (Emphasis added.)

       Should the principal agree to modify the terms, however, the modification will be accepted. See Wis. Stat. § 118.24(6).

       This is an agreement entered into by the District and the administrators that outlines an administrator's responsibilities, rights and employment benefits as well as the District's rights and responsibilities.

       Both versions contain the same provision allowing for assignments and transfers.

       The District and Board also argue that the 1999-2001 agreement remained in effect after its expiration because Kabes and Buchholz continued to accept their salary and benefits. However, Kabes and Buchholz received their salary by the terms of the contract. While the contracts specified their salaries conformed to the salary policies adopted by an unspecified version of the agreement, no other provisions of the unspecified version of the agreement were incorporated into the contracts.

       In fact, the only mention of the agreement in Kabes's and Buchholz's contracts was that their salary conformed to the salary policies adopted by an unspecified version of the agreement.
      It is interesting to note that in October 2002, after Kabes and Buchholz were already at their newly assigned schools, the District offered them new contracts for administrative positions at these schools. Contained in the contracts was a clause that stated: "Terms specified in the 'Personnel Practices for Educational Leadership Management Team’ are incorporated into this agreement." Because Kabes and Buchholz maintained, they already had contracts to remain at River Falls High School until June 2003, they declined to accept the District's offers.


author: HOOVER, PJ.

text:
    In re the Marriage of: Rana R. Lofthus, n/k/a Rana R. Rogge, Petitioner-Respondent, v. Paul Malcolm Lofthus, Respondent-Appellant.

    Court of Appeals

      No. 03-1754.

      Submitted on briefs January 6, 2004.

      Decided February 3, 2004.

    2004 WI App 65
    (Also reported in 678 N.W.2d 393.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Paul Lofthus, pro se, of New Auburn.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of James M. Isaacson of Cadott.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review dismissed 3-10-04.

   HOOVER, PJ.

¶ 1. Paul Lofthus appeals orders appointing a guardian ad litem, denying his motion for modification of a physical placement order, and requiring him to pay the full amount of the guardian ad litem's fees. Paul challenges the constitutionality of the physical placement and guardian ad litem statutes. While we disagree with some of the trial court's rationale, we nonetheless reject Paul's arguments and affirm the orders.

Background

¶ 2. Paul and Rana Lofthus divorced in January 1996. At that time, their two children were five and seven years old. The parties were given joint legal custody, but primary placement was with Rana. Paul filed a motion to modify placement in September 1996, claiming that Rana had changed the final placement order conditions. Paul had previously approved a temporary order and agreed to allow Rana to draft the final order, assuming they would be the same. The court ordered mediation, hut Paul and Rana could not agree. The court then conducted a hearing on the motion in May 1997, orally ordering changes in the placement.

¶ 3. In July 1997, Paul filed a motion for clarification of the court's oral ruling because disagreements in interpretation prevented the parties from drafting an order for the court's approval. The court then entered its own written order, but heard arguments on the motion in August. Based on the hearing and correspondence, an order modifying placement was entered in December 1997. In October 1998, Paul and Rana entered a stipulation changing placement yet again.

¶ 4. In February 2002, Paul filed a petition for modification claiming the children wanted a change in placement. It is from this petition that the current appeal's issues arise. Paul's main request was for equal time with his children. Paul also objected to appointing a guardian ad litem for the children for further proceedings.

¶ 5. The court held a hearing on the guardian ad litem issue in October 2002. Although there had been a guardian ad litem previously in the case, Paul claimed that one was not necessary this time because he was only challenging the placement of the children and there was no evidence "to raise a concern for the welfare of [his] children." Rana requested the court to appoint the guardian ad litem pursuant to statutory requirements. The trial court concluded that the proposed placement change would be substantial and that it had no option under the law but to appoint the guardian ad litem to represent the children.

¶ 6. The hearing on the modification motion was in March 2003. Paul argued that there had been several substantial changes since the last time placement was changed, warranting modification. Paul also argued that appointment of the guardian ad litem and anything less than equal placement unfairly burdened his constitutional right to the care and custody of his children.

¶ 7. The trial court rejected the constitutional challenges, concluded that Paul had not met the "substantial change of circumstances" threshold for modifying placement, and concluded that in any event modification was contrary to the children's best interests. The court then required that Paul pay the guardian ad litem's fees in full, rather than dividing them between Paul and Rana, because it concluded that Paul was advancing a theory of the case that had been previously tried and rejected multiple times by litigants in other cases. Paul appeals.

Discussion

Whether Paul Has A Constitutional Right to Equal Placement

¶ 8. The constitutionality of statutes is a question we review de novo. State v. McManus, 152 Wis. 2d 113, 129, 447 N.W.2d 654 (1989). Statutes are presumed constitutional, and we will sustain a statute as constitutional if there is any reasonable basis for the legislature's choice to enact it. Id. The party challenging a statute as unconstitutional bears the burden of proving so beyond a reasonable doubt. Id.

¶ 9. Paul's arguments are premised on an underlying assumption of an absolute right to equal placement. He relies heavily on Troxel v. Granville, 530 U.S. 57 (2000), to argue that he has a fundamental right to equal placement. Troxel, however, is distinguishable. There, the United States Supreme Court held that the application of a statute granting paternal grandparents visitation rights violated the mother's right to raise her children. Id. at 68-75. In this holding, the Court reaffirmed the liberties protected by the due process clause of the Fourteenth Amendment include "the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Id. at 66. It is with this fundamental right that Paul claims the physical placement statutes are incompatible.

¶ 10. This case, however, does not involve a conflict between a parent and two grandparents. It involves two parents with equal rights. Moreover, we agree with TroxeVs underlying principle: Parents have a fundamental right to the care and custody of their children. See Barstad v. Frazier, 118 Wis. 2d 549, 556-57, 348 N.W.2d 479 (1984). But this does not mean parents have an absolute fundamental right to equal placement after divorce.

¶ 11. In Lassiter v. DSS, 452 U.S. 18, 27 (1981), the Supreme Court wrote that the parent's right to custody and care of his or her children "undeniably warrants deference and, absent a powerful countervailing interest, protection." Here, the State's countervailing interest is the need to have heightened judicial supervision over divorced families because of unique problems that exist in a home split by divorce. See LeClair v. LeClair, 624 A.2d 1350, 1357 (N.H. 1993).

¶ 12. While Paul argues that he and Rana have both been determined fit parents and this precludes the state's involvement, he has not demonstrated how or why, after a divorce, the state does not have the right to arbitrate a dispute between parents who cannot agree on what should happen to their children. Indeed, Paul and Rana's repeated appearances before the court because of their mutual inability to deal with placement demonstrates the very need for state intervention. Therefore, the state's regulation of post-divorce custody disputes is not constitutionally impermissible.

Whether Paul Has a Statutory Right to Equal Placement

¶ 13. Interpretation of a statute is a question of law. In re Curiel, 227 Wis. 2d 389, 404, 597 N.W.2d 697 (1999). Paul's statutory basis for his claim to equal placement is in Wis. Stat. § 767.24(4)(a)2, which states: "In determining the allocation of periods of physical placement, the 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. . . ." This language was added to § 767.24 in 1997 and took effect after the initial placement order in this case. Previously, the statute made no mention of meaningful periods or maximized time and the court was therefore not required to consider these two factors.

¶ 14. However, we recently rejected the contention that Wis. Stat. § 767.24(4) (a)2 requires equal placement. Keller v. Keller, 2002 WI App 161, ¶ 12, 256 Wis. 2d 401, 647 N.W.2d 426. Regardless whether Paul agrees with that result, and regardless whether we agree, we are bound by our previous decisions and cannot modify them. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997).

Whether There Was a Substantial Change of Circumstances

¶ 15. Paul initially argued that the "substantial change of circumstances" requirement of Wis. Stat. § 767.325(1)(b)l.b created an unconstitutional burden on the parent seeking modification. However, because there is no constitutional or even statutory requirement for equal placement between parents, we cannot conclude that § 767.325(l)(b)l.b's substantial change of circumstances requirement is an unconstitutional impediment to modifying placement. Nonetheless, Paul alleges the court erred by not concluding that there had been a substantial change of circumstances.

¶ 16. The circuit court has wide discretion in making physical placement decisions. Wiederholt v. Fischer, 169 Wis. 2d 524, 530, 485 N.W.2d 442 (Ct. App. 1992). We sustain a discretionary decision if the court made its determination based on facts of record, demonstrated logical rationale, and made no error of law. Licary v. Licary, 168 Wis. 2d 686, 692, 484 N.W.2d 371 (Ct. App. 1992).

¶ 17. Under Wis. Stat. § 767.325(l)(b)l.b, a substantial change of circumstances is a prerequisite to modifying a physical placement order. Whether there has been a substantial change of circumstances is a mixed question of law and fact. Rosplock v. Rosplock, 217 Wis. 2d 22, 32-33, 577 N.W.2d 32 (Ct. App. 1998). The circuit court's fact finding regarding circumstances "before," at the time of the last order substantially affecting placement, and "after," at the time of the new motion, and whether when compared these facts constitute a change will not be disturbed unless they are clearly erroneous. Id. at 33. However, whether the change is substantial is a question of law we review de novo. Id. A substantial change of circumstances is one such that it would be unjust or inequitable to strictly hold either party to the original judgment. Id.

¶ 18. Paul points to seven changes he claims warrant modification. He argues that (1) the children are older; (2) he lives closer to them; (3) he is now self-employed and can be available more often; (4) he is available to transport the children daily to school; (5) his children have a new half-sister from Paul's remarriage and that visitation would be beneficial to the children and the half-sister; (6) his son was struggling in school; and (7) a change in the law from the time of the original order requires the court to award equal placement when both parents are fit. He complains the trial court did not explain why these are not substantial changes.

¶ 19. We note initially that Wis. Stat. § 767.325(1)(b)2.b creates a rebuttable presumption for maintaining the current placement schedule. Moreover, § 767.325(l)(b)l.a requires the court to also find the change would be in the children's best interests, regardless whether there are also substantial changes in circumstances.

¶ 20. Although the trial court was somewhat cryptic in its oral decision, we conclude that the court determined Paul's proposed changes would not be in the children's best interests. The guardian ad litem reported that the children had no desire to change the schedule. She suggested their wishes be considered. The court noted that it believed the guardian ad litem's analysis because she was a more credible, neutral party in the dispute.

¶ 21. We will search the record for reasons to sustain the trial court's exercise of discretion. Randall v. Randall, 2000 WI App 98, ¶ 7, 235 Wis. 2d 1, 612 N.W.2d 737. By adopting the guardian ad litem's report to the court that the children were adjusted under the current arrangement, the implicit ruling is that a change would lead to maladjustment and would not be in the children's best interests.

¶ 22. We also note that Paul has not overcome the presumption for maintaining the status quo because none of the facts he relies on, singularly or cumulatively, constitute a substantial change. If we declared the natural aging process of the children to be a substantial change warranting placement modification, there would always be a basis for modification in every case. The legislature, by creating a presumption of the status quo, meant to raise the bar.

¶ 23. Also, Paul's change in residence is not a substantial change. Previously, he lived twenty-six miles from Rana and now lives ten miles away. This move is de minimus. If previously he had lived, for example, one hundred miles away, his placement might have been significantly limited because the court would likely have considered the difficulty of transferring the children. We might then consider the new residence to be a more important factor because a significant impediment to placement had been eliminated. However, there is no evidence to suggest Paul's initial placement was limited because of. where he lived. In short, there is nothing Paul can do now living ten miles away that the court believed he could not do when he lived twenty-six miles away.

¶ 24. We do not believe Paul's employment status is currently relevant. The trial court made no explicit finding regarding this, but we do note that in some of the earlier filings in this case it was noted that Paul was self-employed. We are therefore unconvinced that there has been a substantial change in Paul's employment status because it appears to have already been considered at some point in the current placement decision.

¶ 25. Paul also fails to demonstrate why being able to transport his children to school is a substantial change. In the trial court, he contended they are now eligible to be bused from his home because he lives within a certain radius, but provided no evidence that the children would actually be placed on a bus route. On appeal, he changes his argument and states that because he now lives closer to the school, he can drive the children himself. However, this does not rise to the level of a substantial change. Paul makes no showing why this change makes it unfair to hold him to the original order.

¶ 26. Wisconsin Stat. § 767.325(l)(b)3 states that a change in marital status is not sufficient to meet the substantial change of circumstances standard. Paul's third child is a result of the new marriage. We are unpersuaded that the new sibling is a substantial change. The two children already spend time with their half-sister when they are with Paul. Paul also argued that more visitation would benefit the half-sister. While this may be true, the well-being of a child who is not a child of both parties is irrelevant in the case before us.

¶ 27. There was evidence presented that the son received an "F" on several science assignments, a history test, and two reading assignments. However, there was also evidence that the son had improved his performance, particularly in the reading class. The trial court ultimately concluded, based on updated progress reports and a letter from one of the son's teachers, that: "This idea that you propose, Mr. Lofthus, isn't borne out by the testimony.... He's getting good grades. He's getting a lot better grades than average." In any event, Paul has not shown that the current placement schedule contributed to the failing grades or that any academic problem would be remedied by the proposed placement.

¶ 28. Finally, regarding the change in the law, we have already determined that it does not mandate equal time. Moreover, we usually do not consider changes in the law to be substantial changes for modifying orders. See, e.g., Licary, 168 Wis. 2d at 692 ("The 1988 amendments to the custody statutes are not, in and of themselves, a substantial'change of circumstances.").

Whether A Guardian Ad Litem Should Have Been Appointed

¶ 29. Apart from his constitutional objection, Paul objected to the guardian ad litem appointment because he did not believe the circumstances involved in the modification motion justified the expense of an appointment. Sometimes the decision to appoint a guardian ad litem will be discretionary. DeMontigny v. DeMontigny, 70 Wis. 2d 131, 137, 233 N.W.2d 463 (1975). However, Wis. Stat. § 767.045 states in part:

(1) ... (a) The court shall appoint a guardian ad litem for a minor child in any action affecting the family if any of the following conditions exists:
2. Except as provided in par. (am), the legal custody or physical placement of the child is contested.
(am) The court is not required to appoint a guardian ad litem under par. (a) 2. if all of the following apply:
2. The modification sought would not substantially alter the amount of time that a parent may spend with his or her child. (Emphasis added.)

¶ 30. Paul acknowledged the statute and conceded the modification he sought would substantially alter the amount of time he would be spending with his children, but nevertheless urged the court to essentially ignore the statute and not appoint a guardian ad litem. Based on Paul's concession, the court was required under Wis. Stat. § 767.045(l)(am)2 to appoint the guardian ad litem.

Whether Paul Should Pay All the Guardian Ad Litem Fees

¶ 31. Paul next objects to the court requiring him to pay all of the guardian ad litem fees. The court concluded that Paul had overlitigated the case by submitting an argument that had failed in other cases.

¶ 32. We disagree that this is a reasonable basis for requiring Paul to pay all the fees. Paul had not previously advanced his constitutional argument in this case and the fact that he apparently found briefs or arguments on the Internet does not mean he should not be allowed to make the arguments if he believes they legitimately fit the facts of his case. Moreover, he had at least a colorable claim that there was a substantial change in circumstances, despite the fact that we reject the argument on appeal.

¶ 33. Nonetheless, we conclude that the order to pay the guardian ad litem was appropriate. Wisconsin Stat. § 767.045(6) states: "The court shall order either or both parties to pay all or any part of the compensation of the guardian ad litem." Determining who pays is a discretionary decision. Lacey v. Lacey, 45 Wis. 2d 378, 389, 173 N.W.2d 142 (1970). Although the court articulated one reason for its decision, we may independently search the record to determine whether additional reasons exist to support the court's determination. Stan's Lumber, Inc. v. Fleming, 196 Wis. 2d 554, 573, 538 N.W.2d 849 (Ct. App. 1995).

¶ 34. We conclude that Paul's motion for modification involved a certain degree of abuse of the legal system. On direct examination, Rana's attorney had this exchange with Paul:

[ATTORNEY]: Just so I'm clear, Mr. Lofthus, your argument is that the statutory requirement now that exists in Wisconsin to being change of circumstances isn't fair to you and you want the court to ignore it, basically. Is that it?
[PAUL]: Yes.

¶ 35. In asking the circuit court to find a guardian ad litem unnecessary, Paul noted that Wis. Stat. § 767.045(l)(am)2 required a guardian when modification substantially alters placement. Then, while he acknowledged that his proposed changes would substantially alter placement, he insisted that no guardian be appointed.

¶ 36. To succeed in the trial court, Paul's case depended in part upon the court agreeing to disregard its duty to apply the law of this state. Parties may argue that a court overrule or modify existing legislation, but they may not expect the court to ignore it. We cannot condone parties bringing cases contingent upon such an expectation, which only serves to needlessly prolong litigation and raise costs. We fail to see how placing the resulting financial burden on Paul constitutes an erroneous exercise of discretion.

By the Court. — Orders affirmed.

        See Wis. Stat. § 767.325(l)(b)l.b: "[U]pon petition, motion or order to show cause by a party, a court may modify an order of... physical placement where the modification would substantially alter the time a parent may spend with his or her child if the court finds ... [t]here has been a substantial change of circumstances since the entry of the last order affecting... physical placement."
      All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       For the same reason, we reject Paul's constitutional argument that appointment of a guardian ad litem is an unwarranted intrusion into his family.

       We reached a similar result based on Troxel v. Granville, 530 U.S. 57 (2000), in Arnold v. Arnold, 2004 WI App 62, ¶¶ 8-11, 270 Wis. 2d 705, 679 N.W.2d 276.

       In the trial court, Paul claimed he had "never asserted that 767.24(4)(a)(2) did presume equal placement." In his appellate brief, he argues that we should conclude that there is a "statutory right to assume equal periods of placement," citing Wis. Stat. § 767.24(4)(a)2. These positions are inconsistent.

       In 2004 the children will be thirteen and fifteen.

       Paul also complains that Rana is not following parts of the court order, such as consultation regarding major medical decisions. While we understand his frustration if this is indeed the case, this is not necessarily a substantial change of circumstances. Indeed, Paul's more appropriate recourse is a contempt motion against Rana for failure to comply with the placement order's terms.

       We also note that: (1) Paul had not previously objected to a guardian ad litem at the beginning of this case and in fact had been the one to request the guardian ad litem in 1996, and (2) with regard to the 2002 motion, Rana had provided a list of four possible attorneys for the role, all of whom Paul rejected before he personally selected the attorney who was appointed.
      Paul also complains the guardian ad litem was unnecessary because both he and Rana were "fit." As the trial court noted, the guardian ad litem is an advocate for the children and their best interests — someone who "doesn't have an ax to grind." It is difficult for parents to contend either one can represent the children's interests in a disputed custody or placement case because, by the very nature of the case, the parents disagree on what is best. Appointing a guardian ad litem is not akin to determining parents are unfit or uncaring.

       Rana argues on appeal that sanctions were appropriate based on Wis. Stat. § 814.025, which allows the court to award the successful party costs and attorney fees under § 814.04 if an action is deemed frivolous. However, § 814.04(2) specifically excludes guardian ad litem fees as taxable. Moreover, the guardian ad litem's fees are not considered "attorney fees" simply because the guardian ad litem is also a lawyer.

       Again, we note that Paul told the circuit court he was not claiming that Wis. Stat. § 767.24(4) (a) (2) required a presumption of equal placement. However, he argues the opposite to us.