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COURT OF
APPEALS DECISION DATED AND
RELEASED August
15, 1996 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0713
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
PHILIP
ESSER, AND DELORES ESSER,
Plaintiffs-Respondents,
v.
RICHARD
SKOGEN AND DONNA SKOGEN,
Defendants-Appellants.
APPEAL
from a judgment of the circuit court for Dane County: ANGELA B. BARTELL, Judge.
Affirmed.
VERGERONT,
J.[1] Richard
and Donna Skogen appeal from a judgment for damages to property caused by the
willful and malicious acts of their son, Aaron Skogen, under § 895.035(2),
Stats.[2] The Skogens contend that the court
erroneously admitted a police report into evidence contrary to § 48.396, Stats., erroneously relied on hearsay,
and that the evidence produced at trial was insufficient to sustain the damage
award. We reject each of these
contentions and affirm.
Philip
and Delores Esser filed a small claims action against the Skogens to recover
damages they claimed they suffered when Aaron burglarized their home and farm
on February 9, 1994, and "throughout the rest of the year." The trial was to the court. The Essers represented themselves and the
Skogens were represented by counsel.
Philip Esser was the only witness for the plaintiffs. He submitted a list of items valued at
$426.79, Exhibit 1, which he claimed were either stolen or damaged when his
home was burglarized on February 9, 1994.
Exhibit 1 also contained a list of items which Esser testified had been
missing over the past year from his home in the amount of $917.41, and an item
valued at $340 which Esser claimed was the rental charge for use of tools that
Aaron took without permission. Esser
also presented two affidavits. Each
affiant stated that he observed Aaron take certain items from the Essers' house
without permission. Finally, Esser
presented an incident report from the Dane County Sheriff's Department relating
to the burglary reported by the Essers' son at their home on February 9,
1994. The report states that the Essers
were not at home when the burglary occurred but were away on vacation.
Philip
Esser testified that Aaron's uncle was a tenant on his farm from May 1993 until
September 1994. Esser testified that
Aaron was often at his farm because his uncle was there as a tenant and that is
when things started to disappear. Esser
also testified that on one occasion he confronted Aaron's uncle about taking
his tools without his permission. On
another occasion, he caught Aaron with two jacks of his [Esser's] in Aaron's
truck. Esser testified that he had
never given Aaron permission to use or take any of these items. Esser's belief that Aaron had burglarized
his house in February 1994 was based on the information contained in the
incident report. That information had
apparently also been related to him verbally by an investigating officer.
The Skogens' attorney
initially objected to admission of the incident report on the ground that under
§ 904.10, Stats., evidence
of a plea of guilty or no contest is not admissible in any civil or criminal
proceeding against the person. The
court overruled this objection but reserved ruling on the admissibility of the
report until counsel had the opportunity to question Esser. The Skogens' counsel later objected to
admission of the report on the ground that under § 48.35(1)(b), Stats., "the disposition of a
child, and any record of evidence given in a hearing in court, shall not be
admissible as evidence against the child in any case or proceeding in any other
court."
In
response to questioning by the court and the Skogens' counsel, Esser testified
that he asked the investigating officer how he could obtain a copy of the
report and was told that he could go to the juvenile court and ask for it. Esser asked a clerk in the office of the
juvenile court for the court record of Aaron Skogen, explaining that he was the
owner of the house that Aaron broke into.
According to Esser, the clerk initially stated that she did not know if
that was permissible; however, the clerk did give him a copy of the
report. The court overruled the
Skogens' objection on the ground that either by order or policy of the juvenile
court, the records were released to Esser as the property owner.
Richard
and Donna Skogen each testified.
Richard testified that Aaron was eighteen years old on the date of the
trial, January 12, 1996, and was living with them on that date and had lived
with them continuously since his birth.
The Skogens both testified that they had never seen any of the property
contained on Exhibit 1 at their home.
Although
the trial court overruled the objection to the admission of the incident report
based on §§ 904.10 and 48.35(1)(b), Stats.,
the court stated that it would review the incident report to determine whether
it contained statements providing sufficient evidence under § 799.209(2), Stats.
Section 799.209(2) provides:
The proceedings [in small claims action] shall not be
governed by the common law or statutory rules of evidence except those relating
to privileges under ch. 905 or to admissibility under s. 901.05. The court or court commissioner shall admit
all other evidence having reasonable probative value, but may exclude
irrelevant or repetitious evidence or arguments. An essential finding of fact may not be based solely on a
declarant's oral hearsay statement unless it would be admissible under the
rules of evidence. [Emphasis
added.]
In
concluding that the Skogens were liable to the Essers, the court explained that
there were direct transcriptions in the incident report of statements made by
Aaron which were admissions on his part and therefore came within a hearsay
exception. The court found that these
statements were sufficient to permit a finding that on February 9, 1994, Aaron
Skogen entered the Essers' premises without consent and with intent to
steal. Based on his admissions in the
incident report, the court found that Aaron took beer; that he entered through
a window; and that damages to the window, screen and patio door and scratches
to the car, contained on Exhibit 1, were locations where Aaron admitted he was
present. The court also found that
Aaron took wine, meat and two pairs of sunglasses, all of which were listed on
Exhibit 1 as items stolen on February 9, 1994.
The court found by a preponderance of the evidence based on Esser's
testimony, Exhibit 1 and Aaron's confession contained in the incident report
that a total of $426.79 was stolen by Aaron when he unlawfully entered the
Esser residence on February 9, 1994.
The
court concluded that there was insufficient evidence to find that Aaron, rather
than his uncle or someone else, took the other items that were listed on
Exhibit 1 as missing or stolen from the Esser farm during the "past
year." The court also concluded
that the statements in the two affidavits were hearsay and could not stand by
themselves to support a judgment.
The
court found that Aaron was a minor in February 1994 and was living with his
parents at the time and therefore they were responsible for his acts under
§ 895.035(2), Stats. The court found that Aaron's acts were
willful, intentional and malicious based on the nature of the theft, the
statements in the incident report that he first denied the thefts, and the fact
that the acts constitute a crime. The
court later awarded attorney's fees in the amount of $300, pursuant to
§ 895.031(4), Stats., and
statutory costs in the amount of $49.
The
Skogens first argue that under § 48.396, Stats.,
juvenile records may not be inspected or disclosed except by order of the court
or to the victim of a child's act after certain procedures are followed. The procedures include a written petition
with the contents specifically prescribed, notice to the child and the child's
attorney, hearing if there is any objection to the disclosure, judicial
inspection of the records and a decision of the record. Section 48.396(5). However, this was not the juvenile code provision that the
Skogens' counsel relied on at trial.
Instead, the Skogens' counsel relied on § 48.35(1)(b), Stats., which provides, with certain
exceptions:
(b) The disposition of a child, and any record
of evidence given in a hearing in court, shall not be admissible as evidence
against the child in any case or proceeding in any other court except....
Section
48.35(1)(b), Stats., does not
apply. The incident report was not
admitted as evidence against Aaron but as evidence against his parents. The Skogens concede this when they argue, in
the context of their hearsay objections, that the incident report was offered
against the defendants, Richard and Donna Skogen, not against Aaron.
Because
the Skogens did not raise an objection under § 48.396, Stats., before the trial court, we will
not consider it on appeal. The general
rule is that in order to preserve the right to an appeal on a question of
admissibility of evidence, the litigant must apprise the court of the specific
grounds on which the objection is based.
State v. Peters, 166 Wis.2d 168, 174, 479 N.W.2d 198, 200
(Ct. App. 1991). The purpose of this
rule is to allow the trial court to remedy any possible error and thus avoid
creation of an issue for appeal. State
v. Barthels, 166 Wis.2d 876, 884, 480 N.W.2d 814, 818 (Ct. App.
1992). Had the Skogens raised the issue
of § 48.396 before the trial court, the trial court would have determined
whether the procedures prescribed there, if applicable, had been followed. If the court determined the procedures had
not been followed, it might have determined that the Essers, who were
unrepresented, should have the opportunity to obtain the records through
appropriate means or present alternative proof. Under these circumstances, we decline to consider the applicability
of § 48.396.
The
Skogens also object to the admission of the incident report because it was not
appropriately identified, authenticated and offered into evidence as required
by the rules of evidence.[3] However, § 799.209(2), Stats., provides that the rules of
evidence do not apply with one exception:
that an essential finding of fact "may not be based solely on
declarant's oral hearsay statement unless it would be admissible under the
rules of evidence." The incident
report is, at the first level, hearsay in that it consists of written reports
by investigating deputies who were not present at the trial. However, the written reports are not
"oral hearsay." Under the
plain language of the statute, the single exception to the application of the
rules of evidence does not apply to the written reports of the investigating
officers.
The
Skogens are correct, however, that oral statements made by others to the
officers that are contained in their written reports must be examined to
determine whether those statements would be admissible under the rules of
evidence. One such statement is that
made by Aaron when he left a telephone message on Detective Mahoney's answering
machine. That statement was transcribed
and attached to Mahoney's report:
Yes Det. Mahoney this is Aaron Skogen calling you, you
left about a half hour ago um I am admitting I did break a window on Phillip
[sic] and Delores' house but all I took was that beer that I had told you and
the window was broke just by accident because I hit the screen and I did get in
through the front win, or the front door still. Thanks, call back, bet [sic] a hold of me whenever. I called Phillip [sic] and Delores and left
a message on their answering machine that I need to get a hold of them and have
a meeting with them as soon as possible.
Thank you. Bye.
The Skogens argue that this is hearsay and that the
exception for statements against interest, which the court relied on,
§ 908.045(4), Stats., does
not apply because that exception requires that the declarant be unavailable as
a witness. There is no indication in
the record that Aaron was "unavailable" as defined in § 908.04(1).
We
assume, for purposes of discussion, that being "admissible under the rules
of evidence" under § 799.209(2), Stats.,
means that if the hearsay exception is found under § 908.045, Stats., the declarant must be
unavailable. We also assume that
Aaron's transcribed statement is an "oral statement." It may nevertheless be considered by the
court as evidence under § 799.209(2) as long as it is not the sole basis
for the court's finding that Aaron committed the burglary on February 9,
1994.
The
incident report also contains a statement made by Travis Gudgeon to Deputy
Mahoney that in early 1994 Aaron contacted him and asked him to keep a case of
beer and a jug of homemade wine for him.
Gudgeon questioned Aaron about where he had gotten them. Aaron said he had gotten them from the
Essers' house; he (Aaron) had broken a window at the residence, entered the
residence and taken the beer and wine from the garage while the Essers were on
vacation.
Aaron's
statement to Gudgeon was corroborated by J.B. Trainor, Gudgeon's girlfriend. She stated to Deputy Mahoney that she was at
Gudgeon's residence when Skogen arrived and asked Gudgeon to store a case of
beer and a jug of homemade wine, which he (Aaron) admitted he had taken that
evening or the night before from the Esser residence. Aaron admitted he broke a window and entered the residence.
Deputy
Mahoney's report also states that earlier on the same day Aaron left the
telephone message, May 27, 1994, he met with Aaron. Aaron said he did not commit the burglary but he did enter the
garage after finding the garage door standing open. Mahoney met with Aaron a second time that day and confronted
Aaron with evidence that Aaron had lied about other property in his
possession--a floor jack--which Mahoney had verified as stolen from Mount Horeb
High School. Aaron then informed
Mahoney that he had, in fact, lied to Mahoney about that floor jack. Mahoney told Aaron to contact him by May 31,
1994, and provide him with a truthful statement regarding the Esser
burglary. Upon returning to his office
that same day, Mahoney found the message from Aaron on his answering
machine.
We
may affirm the trial court's decision for reasons other than that relied on by
the trial court. See State
v. Patricia A.M., 176 Wis.2d 542, 549, 500 N.W.2d 289, 292 (1993). We conclude that Aaron's telephone statement
is not the only basis for a finding that he committed the burglary. Trainor's and Gudgeon's statements also support
that finding. Although their statements
are also "oral hearsay" (and contain another level of hearsay), the
three statements may be considered together, consistent with § 799.209(2),
Stats., to support essential
findings.
The
Skogens also object to consideration of Aaron's telephone message because it
does not comply with the safeguards for recorded telephone conversation under
§ 885.365, Stats. The Skogens did not make this objection
before the trial court. For reasons we
have explained earlier, we decline to consider it on appeal.
Finally,
the Skogens argue that the evidence was insufficient to support the damage
award of $426.79. Most of their
argument here is based on their position that the incident report is
inadmissible. Since we have concluded
that it is admissible and that the statements of Aaron, Gudgeon and Trainor may
be considered by the court, we conclude that there is sufficient evidence to
sustain the trial court's findings that Aaron took the beer and a gallon of
wine, damaged the window, screen, patio door and scratched the car hood during
the unlawful entry and the theft. We
also note that in the incident report, Deputy Cattanach states that when he
investigated the burglary, he observed the scratches on the car in the garage
and the damaged window and screen. We
conclude that Esser's testimony that the sunglasses and meat were missing from
his house at the same time supports the trial court's finding that those items
were taken by Aaron during his unlawful entry.
We reject the Skogens' argument that Esser's testimony, through Exhibit
1, of the value of the items taken and the cost of repairs is insufficient to
support a finding of the amount of damages the Essers incurred as a result of
the burglary. We conclude that the
trial court's finding that Aaron's conduct was willful, malicious and
intentional is supported by the incident report and, in particular, the
statements of Aaron, Trainor and Gudgeon contained in Deputy Mahoney's
report.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] Section 895.035(2), Stats., provides:
The parent or parents with custody of a minor
child, in any circumstances where he, she or they may not be liable under the
common law, are liable for damages to property, for the value of unrecovered
stolen property or for personal injury attributable to a wilful, malicious or
wanton act of the child. The parent or
parents with custody of their minor child are jointly and severally liable with
the child for the damages imposed under s. 943.51 for their child's violation
of s. 943.50.