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COURT OF APPEALS DECISION DATED AND RELEASED February 5, 1997 |
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. 96-3148-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
In the Interest of
Corey J.G.,
A Person Under the Age
of 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
COREY J.G.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Fond du Lac County:
JOHN G. BUCHEN, Judge. Affirmed.
SNYDER, P.J. Corey J.G. appeals from an order finding him
guilty of two counts of delinquency. He
argues that Fond du Lac County was not established as the proper venue for the
delinquency allegations, and therefore “the evidence was insufficient to
support a finding of delinquency ....”
Because we conclude that the precise venue issue raised by this appeal
is not a sufficiency of the evidence question as Corey claims, but rather a
question of statutory interpretation which was not properly raised or argued to
the juvenile court, we affirm.
The facts are
undisputed. A delinquency petition was
filed in Fond du Lac County on March 21, 1996.
It alleged criminal damage to property in violation of § 943.01(1), Stats., and battery contrary to §
940.19(1), Stats. The acts were alleged to have occurred on
August 22 and August 24, 1995, respectively, in the City of Neillsville, in Clark
County, Wisconsin. Corey was a resident
at the Sunburst Youth Home in Neillsville on the dates in question, and the
petition gave his address as that of the Sunburst Youth Home.
The Fond du Lac State
Public Defender appointed Attorney Greg Vollan to represent Corey. This order listed Corey's address as 29
South Military, Fond du Lac, Wisconsin (his parents' address), and further
stated that Corey was detained at St. Ives Center, 12893 Clover Lane, Merrill,
Wisconsin.
Corey returned to Fond
du Lac on April 25, 1996, and was ordered held in the Fond du Lac county secure
detention facility. He entered not
guilty pleas and the case was tried to a jury on May 16, 1996. After the State rested its case-in-chief,
Vollan moved, inter alia, for dismissal of the delinquency counts on the basis
that venue had not been established.
The complete record text of the motion is:
MR. VOLLAN:I have one more
motion. I would move to dismiss for lack
of establishment of venue.
PROSECUTOR:Your Honor, I
think the first witness testified that it was at Sunburst Youth Homes, which is
in Neillsville, which is in Clark County, State of Wisconsin. I think that is sufficient venue.
THE
COURT:All the witnesses testified to being employed at that place in
Neillsville. I'm satisfied that venue
has been established. Motion is denied.
It is
from this denial that Corey appeals.
Corey raises one issue
for appellate review: that “the
evidence was insufficient to support a finding of delinquency because the State
failed to prove venue.” We decline,
however, to address Corey's argument in the manner he has structured it. See generally State v. Waste
Management of Wis., Inc., 81 Wis.2d 555, 564, 261 N.W.2d 147, 151
(1978). We see the appeal as presenting
two separate issues: (1) whether the
venue issue in this case raises a question as to the sufficiency of the
evidence to support the delinquency petition or (2) whether the venue issue
actually questions whether the delinquency petition could properly be brought
in Fond du Lac County.
Issues of venue are
governed by the Children's Code, see § 48.185(1), Stats.,[1]
and thus present questions of statutory interpretation. It is also true that venue, in terms of
addressing the location of a delinquent act, is a fact that must be
proved beyond a reasonable doubt and is an issue to be established at trial
regardless of where the delinquency proceedings take place. See Pickens v. State,
96 Wis.2d 549, 575, 292 N.W.2d 601, 614 (1980). Corey was not specific in his trial court venue motion, and both
the State and the trial court viewed the motion as one challenging the proof
that the offenses occurred in Clark County.
Corey did not challenge this analysis of the motion, nor did he correct
the motion to direct the court's attention to the statutory requirements that
underscore his appeal.
The question of whether
the State established Clark County as the location of the delinquent acts is
reviewed by this court by applying the sufficiency of the evidence
standard. See State v.
Poellinger, 153 Wis.2d 493, 501, 451 N.W.2d 752, 755 (1990). However, Corey does not dispute the trial
court's finding that there was sufficient evidence offered to establish Clark
County as the location of the offenses.
Instead, Corey agrees that “[v]enue in this juvenile case is governed by
sec. 48.185(1), Stats.” and then contends that the statute was violated because
the State “failed to introduce any evidence that [he] resided or was
present in Fond du Lac County.”
Section 48.185(1), Stats., provides:
[V]enue
for any proceeding [in a delinquency matter] may be in any of the following: the
county where the child resides, the county where the child is present or, in
the case of a violation of a state law ... the county where the violation
occurred. [Emphasis added.]
Whether
this section requires the State to prove that Fond du Lac County qualified as
an appropriate county in which to bring the delinquency petition presents an
issue of statutory interpretation. This
is a question of law that we normally decide without deference to the trial
court. See State v.
Eichman, 155 Wis.2d 552, 560, 456 N.W.2d 143, 146 (1990). As with any question of statutory
interpretation, we first look to the language of the statute itself. See J.A.L. v. State, 162
Wis.2d 940, 962, 471 N.W.2d 493, 502 (1991).
By its plain language, §
48.185(1), Stats., provides that
a delinquency petition may be brought in the county of the commission of the
alleged acts or, alternatively, in the county where the child resides or is
present. See id. We read this section as providing
flexibility in juvenile procedures when it states that “venue for any
proceeding ... may be in any of the following: [counties].” Id. (emphasis added). This section does not favor or direct one
possible venue over any other; we are satisfied that the filing of a
delinquency petition is appropriate in any county which the State determines
complies with the provisions of § 48.185(1).
Once the State files its petition, the juvenile may challenge the venue
as not being within the purview of the statute.
Corey could have
challenged the State's choice of Fond du Lac County as not being within the
purview of § 48.185(1), Stats.,
during the ch. 48, Stats.,
proceedings in the court assigned to exercise juvenile jurisdiction. He failed to do so. His venue motion, made at trial and after
the State rested its case-in-chief, did not specifically refer to § 48.185. Neither the State nor the court was advised
or made aware that Corey's intention was to challenge the appropriateness of
venue in Fond du Lac County for the delinquency proceedings. Corey's failure to raise this issue to the
ch. 48 court, the court specifically assigned jurisdiction in this matter, see
§ 48.02(2m), Stats., deprived
that court of an opportunity to review this issue or to receive proof of the
issue from the State. See Cappon
v. O'Day, 165 Wis. 486, 490-91, 162 N.W. 655, 657 (1917).
We conclude that because
the issue of venue here presented involves the application of a ch. 48, Stats., provision and is an argument
that was not raised and argued before the ch. 48 court, it is not preserved for
appellate review. This court is an
error-correcting court, see Hillman v. Columbia County,
164 Wis.2d 376, 396, 474 N.W.2d 913, 920 (Ct. App. 1991), and we do not
consider arguments raised for the first time on appeal. See Meas v. Young, 138
Wis.2d 89, 94 n.3, 405 N.W.2d 697, 699 (Ct. App. 1987).
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.