17: Appendices

PROCEDURAL HISTORY

In the first appeal, Plaintiff-Appellants, Rhonda Miller, Richard Miller & Kay Miller (the Millers), and Defendant-Co-Appellant, Craig Thomack, appeal the Trial Court’s grant of Summary Judgment dismissing the Millers’ claims against Kimberly Ransom, Karen Miller and Jason Beattie. In the second appeal, Defendants-Appellants, Kurt D. Pamperin, Sr., Kurt Pamperin Jr., and United Fire & Casualty Company (the Pamperins), appeal the Trial Court’s refusal to grant Summary Judgment dismissing the Millers’ claims made against them in the Complaint.

APPLICABLE STATUTES

Section 125.07(1)(a)1., Wis. Stat. (1996): “No person may procure for, sell, dispense or give away any alcohol beverages to any underage person not accompanied by his or her parent, guardian or spouse who has attained the legal drinking age.”

Section 125.07(1)(a)3., Wis. Stat. (1996): “No adult may knowingly permit or fail to take action to prevent the illegal consumption of alcohol beverages by an underage person on premises owned by the adult or under the adult’s control.”

ISSUES

1. Does a person “procure” alcohol for an underage person in violation of § 125.07(1)(a)1., Wis. Stat. (1996) when the facts show:
   1. The person contributed money toward a fund that the person knew would be used to purchase alcohol;
   2. The person knew that underage persons would consume the alcohol purchased with the funds toward which the person contributed money; and
   3. The person knew the alcohol would be consumed by underage persons outside the presence of a parent, guardian or spouse who could legally consume alcohol?
2. Does a person “knowingly” permit or fail to take action to prevent the illegal consumption of alcohol by underage persons in violation of §125.07(1)(a)3., Wis. Stat., when the undisputed facts demonstrate:
   1. Underage persons consumed alcohol outdoors on the person’s tavern premises;
   2. Underage persons went into the tavern building to use restroom facilities;
   3. Underage persons could see into the tavern building, but no one inside the tavern building could see or hear the underage persons outside the building; and
   4. No underage persons purchased alcohol from the tavern nor consumed alcohol purchased from the tavern?

HOLDINGS

1. Yes. A person does “procure” alcohol for an underage person in violation of § 125.07(1)(a)1., Wis. Stat. (1996) when the facts show:
   1. The person contributed money toward a fund that the person knew would be used to purchase alcohol;
   2. The person knew that underage persons would consume the alcohol purchased with the funds toward which the person contributed money; and
   3. The person knew the alcohol would be consumed by underage persons outside the presence of a parent, guardian or spouse who could legally consume alcohol.
2. No. A person does not “knowingly” permit or fail to take action to prevent the illegal consumption of alcohol by underage persons in violation of §125.07(1)(a)3., Wis. Stat., when the undisputed facts demonstrate:
   1. Underage persons consumed alcohol outdoors on the person’s tavern premises;
   2. Underage persons went into the tavern building to use restroom facilities;
   3. Underage persons could see into the tavern building, but no one inside the tavern building could see or hear the underage persons outside the building; and
   4. No underage persons purchased alcohol from the tavern or consumed alcohol purchased from the tavern.

FACTS

On the night of the accident which injured Rhonda Miller, Rhonda arranged for Brian Clary, who was 21 years old, to buy beer for her, her cousins Kimberly Ransom and Karen Miller, her friend Craig Thomack and her friend Jason Beattie, all of whom were minors under the age of 18 and could not purchase beer legally. Kimberly contributed $5.00 toward the purchase; it is assumed that Karen and others also contributed money. Clary bought the beer and placed it in Craig’s car.

After the group drank some of the beer at an unoccupied cabin, Craig drove Rhonda, Karen and Kimberly to the parking lot of Pamperin’s Bear Lake Bar and Hall. Rhonda, Craig, Karen, Kimberly and Jason drank more beer on the beach area behind the tavern. No one distributed or served the beer to anyone; they all helped themselves.

Testimony indicated that one of the members of the group of underaged persons may have asked the bartender if the group could swim at the lake, and that one or more of the girls may have used the tavern’s restroom. None of the underaged persons purchased any alcohol from the tavern; all of the beer they consumed was purchased by Brian Clary at a liquor store. Several underaged persons testified that they could see into the bar that evening. However, testimony from persons inside the tavern that evening, including Brian Clary, indicated that the group of underaged persons could not be seen or heard from inside the bar.

Rhonda and Craig later left the beach area behind Pamperin’s Bear Lake Bar & Hall in Craig’s car, with Craig driving. Rhonda was not wearing her seat belt. At some point, Craig lost control of the vehicle in a rainstorm, resulting in an accident that severely injured Rhonda.

REASONING

1.    Has a person who contributed money toward the purchase of alcohol that the person knew would be consumed by underage persons illegally procured alcohol for underage persons? Wisconsin Statutes provide in relevant part, “No person may procure … any alcohol beverages to any underage person not accompanied by his or her parent, guardian or spouse who has attained the legal drinking age.” Section 125.07(1)(a)1., Wis. Stat. (1996). The word “procure” is not defined in this statute; thus, the word is given its plain and ordinary meaning. The Court referred to Webster’s Dictionary, which defines “procure” as follows: “To get by possession: obtain, acquire ... especially to get possession of by particular care or effort ... and sometimes by devious means ... to cause to happen or be done: bring about: effect....” Contributing money toward purchase of alcohol necessarily involves an effort to cause that purchase to happen so that a person can obtain or acquire alcohol. Giving the money to another person who can legally purchase the alcohol and who is willing to provide that alcohol illegally to underage persons as a way to get around statutory prohibitions, certainly appears “devious.”

 In this case, Karen, Ransom and Beattie all contributed money toward the purchase of the beer. At the time they contributed the money, they all knew and intended that the beer would be consumed by underage persons – themselves, Thomack and Rhonda. They also knew they could not legally purchase beer themselves. Instead, they provided the money to someone who could purchase the beer legally from a liquor store and was willing to give the beer to them. This demonstrates both “particular effort’ and “devious means.” As such, they caused underage persons to obtain beer illegally. Therefore, by contributing money toward the purchase of beer, knowing it would be consumed by underage persons, a person “procures” alcohol in violation of §125.07, Wis. Stat. (1996).

2.    Whether the Pamperins “knowingly permitted or failed to prevent” illegal underage drinking on their premises in violation of §125.07, Wis. Stat. (1996), depends on the application of the word “knowingly” to the undisputed facts. Section 125.07(1)(a)3., Wis. Stat. (1996), provides in part, “No adult may knowingly permit or fail to take action to prevent the illegal consumption of alcohol … by an underage person on premises owned by the adult or under the adult’s control.” The statutes are silent regarding what is required to prove someone “knowingly permitted or failed to prevent” underage drinking on their premises. The Court determined that in this statute, “knowingly” requires proof of “actual knowledge” that underage drinking was occurring or definitely going to occur at that time on the person’s premises. The evidence must be such that the evidence itself, or a reasonable inference drawn from the evidence, leads to the conclusion that there was actual knowledge of underage drinking. Knowledge that underage people are on the premises is itself insufficient, even if the person in control of the premises is aware that underage persons may consume alcohol on the premises or have done so in the past. Rather, the evidence must demonstrate that the person in control of the premises actually knew that underage drinking was occurring at the time it was occurring.

In this case, the Pamperins’ testimony that they were unaware that underage drinking was occurring on the night of the accident that injured Rhonda is uncontradicted. Persons inside the tavern building that evening testified that they did not see or hear anything indicating that underage drinking was occurring outside the tavern building. None of the beer the group of underaged persons consumed was purchased from the tavern. Rhonda presented evidence of what persons outside the tavern could see or hear, and also evidence that one or more underage persons used the tavern’s restroom facilities. However, Rhonda’s speculation about what persons inside the tavern building could see or hear does not support a reasonable inference of actual knowledge in the face of testimony of persons inside the tavern to the contrary. Thus, there is no direct or inferential evidence that the Pamperins actually knew or were aware that Rhonda and her group of underage persons were consuming alcohol on their premises. Therefore, the Pamperins did not knowingly permit or fail to prevent underage drinking on their premises in violation of §125.07, Wis. Stat. (1996).

DISPOSITION

 The Court of Appeals reversed the Trial Court’s grant of Summary Judgment in favor of Karen, Ransom and Beattie, and ordered the Millers’ claims against those parties reinstated. The Court of Appeals also reversed the Trial Court’s denial of Summary Judgment to the Pamperins and ordered that the Millers’ claims against the Pamperins be dismissed.

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PROCEDURAL HISTORY: 

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WORK PRODUCT – PRIVILEGED AND CONFIDENTIAL LEGAL RESEARCH MEMORANDUM 

TO:       Supervising Attorney [insert the person’s name] 

FROM:  First name Last name, job title [insert your name and job title]

DATE:   April 1, 20xx [insert the date you are providing the final draft to your supervisor) 

RE:       Analysis of Likelihood of Arson Conviction 

             State v. Willy Wonka; Brown County Case No. 20xx-CF-1234

             Our File: CF-Wonka-20xx-983 

This memo will address the issue of whether our client, Willy Wonka, is likely to be convicted of arson. To secure an arson conviction, the State must prove beyond a reasonable doubt that Wonka used fire to intentionally damage the building of another, without the other owner’s consent. It is undisputed that fire was used to damage the Chocolate Factory, and that the Chocolate Factory, jointly owned by Wonka and Charlie Bucket, is a building of another; thus, these elements will not be analyzed. Based on the facts provided, the State will likely be able to prove Wonka intended to damage the Chocolate Factory. The only element the State may have difficulty proving is that Bucket did not consent to the arson. While some facts may suggest a motive for Bucket to consent to the arson, a jury might discount those facts in light of Bucket’s statement to police that he neither knew about nor consented to a plan to burn the factory. Therefore, the State is likely to prove all the required elements of arson and secure a conviction.

QUESTIONS PRESENTED

1.    Will the State be able to prove beyond a reasonable doubt that Wonka “intentionally damaged” the Chocolate Factory when the facts show:

a.    A fire occurred at the Chocolate Factory several hours after the Factory had closed for the day;

b.    Accelerants were used at several locations around the Factory;

c.     Wonka was identified as the person dancing across the street from the fire shouting “Burn, baby, burn;”

d.    The Factory’s records are being audited for financial irregularities; and

e.    Wonka owns a $1,000,000 Preferred Player’s Card from LaCasino?

2.    Will the State be able to prove beyond a reasonable doubt that the damage to the Chocolate Factory occurred “without the other owner’s consent” when the facts show:

a.    The Chocolate Factory is jointly owned by Wonka and Charlie Bucket;

b.    Bucket told the investigating officer that he had no knowledge of a plan to set the Chocolate Factory on fire;

c.     Bucket told the investigating officer that he did not consent to a plan to set the Chocolate Factory on fire;

d.    The Factory’s records are being audited for financial irregularities; and

e.    Bucket owns a $1,000,000 Preferred Player’s Card from LaCasino?

ANSWERS

1.    Yes. The State will very likely be able to prove beyond a reasonable doubt that Wonka “intentionally damaged” the Chocolate Factory. Wisconsin case law identifies several facts that tend to show intent, such as use of accelerants, a fire occurring at a time when the area is likely to be unpopulated, and other facts that can be interpreted as showing hostility. All of these facts are present in the Wonka case. Therefore, the State will prove that Wonka intentionally damaged the factory with fire.

2.    Probably yes. The State will likely be able to prove beyond a reasonable doubt that the damage to the Chocolate Factory occurred “without the other owner’s consent.” According to Wisconsin case law, consent must be proven with objective facts. The owner’s statement that he or she did not consent to commission of the crime, in the absence of strong evidence to the contrary, is sufficient. Bucket, the other owner of the Chocolate Factory, informed police that he neither had prior knowledge of nor consented to a plan to damage the factory with fire. If the jury believes Bucket’s statement to police and discounts theories involving insurance fraud, the State will likely be able to prove that  Bucket neither knew about nor consented to a plan to set the factory on fire.

FACTS 

Sometime after 1 a.m. on January 30, 20xx, a fire occurred at the Chocolate Factory. The factory had closed at 5 p.m. the evening prior to the fire, and no one occupied the factory at the time of the fire. The fire caused $1 million worth of damage). 

The fire inspector’s report revealed the use of accelerants at several sites around the factory).  A witness came forward (Mary Worth) and stated that at approximately 2 a.m., she was awakened by the sirens from fire trucks responding to the fire. She went outside her home, which is across the street from the Chocolate Factory, to watch the firefighters put out the fire. At that time, she noticed a man dressed in camouflage clothing dancing near the curb, about 25 yards from where she was standing.  She could hear the man shouting, “Burn, baby, burn!” From a police photo lineup, Ms. Worth identified Mr. Wonka as the man she saw dancing across the street from the fire. 

The Chocolate Factory is jointly owned by our client, Willy Wonka, and Charlie Bucket. Bucket claimed in his statement to police he was surprised and upset by the fire and did not consent to someone setting a fire. The investigating officer who first contacted Bucket about the fire testified that Bucket expressed “disbelief” that the Chocolate Factory had been set on fire and that Wonka was accused of doing so. It does not appear that Bucket was present at the scene of the fire. Further investigation of Bucket and the Chocolate Factory reveals that Bucket is currently being audited by Weegocha Auditing Company for alleged improper business practices. Weegocha states that $1 million is unaccounted for in corporate record books. Corporate record books also reflect that the factory has been operating at a financial loss for the last three years. 

Both Willy Wonka and Bucket have Preferred Player’s Cards at LaCasino. LaCasino policy is to issue Preferred Player’s Cards only to regular customers gambling at least $1 million. Both Wonka and Bucket admit that they have lost a substantial, though unknown, amount of money gambling at LaCasino over the last five years.  However, Wonka and Bucket deny using corporate monies to gamble.  

Willy Wonka has been charged in Brown County Circuit Court with arson. An arraignment is scheduled on [date], at which time Wonka must enter a plea to the charge. A request for a copy of the investigative file has been sent to the Brown County District Attorney and a response is pending.

DISCUSSION

1.    Did Wonka “intentionally damage” the factory with fire?

Will the State be able to prove beyond a reasonable doubt that Wonka “intentionally damaged” the Chocolate Factory with fire? To secure an arson conviction, §943.02(1)(a), Wis. Stat. (1996), requires proof that the accused “intentionally” damaged another person’s building with fire. Although Wisconsin’s arson statute does not define the word “intent,” Wisconsin Courts have interpreted the word “intentionally” as used in the statute.

The Wisconsin Supreme Court, while not defining “intent” directly, described the type of proof that would support a determination that the accused “intentionally” damaged another person’s building with fire: “Intent can be inferred from the following facts:  use of an accelerant, the setting of the fire during a time of the day when the area is likely to be unpopulated, or any other facts tending to show hostility or intent to cause damage.” State v. Johnson, 349 Wis. 2d 894, 455 N.W.2d 338 (1988).  In Johnson, the defendant, Randy Johnson, was accused of arson to a school. The school caught fire at 3 a.m. on Easter Sunday. A search of Randy’s home yielded some clothes that smelled of smoke and gasoline. The fire inspector’s report revealed the presence of gasoline in the area where the fire started. An empty gas can was found in the football field behind the high school. Witnesses also testified that Randy’s Chemistry class was scheduled to take a big exam the following Monday. Randy’s Chemistry teacher testified that Randy needed to earn an A on the exam or he would fail the class. The Johnson court held that this evidence was sufficient to prove that Randy intentionally set fire to the school, even though there was no evidence that he was seen in the area of the fire. As a result, Randy’s conviction of arson was upheld.

In a later case, the Supreme Court clarified the quantity and quality of proof based on inferences that is needed to support a determination of “intent.” State v. Rodriguez, 548 Wis. 2d 293, 560 N.W.2d 81 (1993). Specifically, the Rodriguez Court stated that more is required than just the presence of accelerants or vague suspicion. The Court clarified that proving “intent” beyond a reasonable doubt requires more than just evidence of the presence of accelerants at the site coupled with “vaguely suspicious” circumstances. In Rodriguez, a fire started on defendant Alex Rodriguez’s back porch at 5 p.m. on a Saturday, causing damage to his home. At the time of the fire, due to a renovation project at the home, the door to the back porch had been boarded up, such that Rodriguez needed to go out the front door and around the home to access the back porch. Rodriguez was at home when the fire started, and immediately called the fire department to report the fire. Several days later, Rodriguez made a claim with his insurance company, which denied the claim, calling the fire “suspicious” and noting that accelerants were present on the back porch where the fire started. Rodriguez testified that he always kept his grill, charcoal, and charcoal lighter fluid on the back porch. Witnesses for the insurance company were unable to describe any other evidence that the fire had been set intentionally. The Rodriguez Court held that this evidence was not sufficient to prove that he intentionally set the fire. As a result, Rodriguez’s conviction of arson was overturned.

Based on the Johnson and Rodriguez cases, a determination of “intent” needs to be based on objective evidence in addition to use of accelerants. The evidence should support an inference that the defendant had motive and desire to set the fire. Additionally, any “innocent” explanations for the circumstances surrounding the fire must be considered and weighed with all other evidence relating to a defendant’s intent to damage another person’s building with fire.

In this case, similar to the Johnson case, Mr. Wonka’s intent to destroy the factory can be inferred from many facts.  The fire inspector’s report noted use of accelerants in several sites. The fire started sometime after 1 a.m., long after the factory was closed. Finally, a witness testified that he saw Mr. Wonka dancing around across the street from the fire, yelling repeatedly, “Burn, baby burn!”  Unlike Rodriguez, here there is ample evidence in addition to the presence of accelerants that tends to show intent.  All of these facts --  and especially the witness’ testimony – demonstrate Wonka’s general hostility toward the factory, as well as his desire that the fire damage the factory. Therefore, the State will likely be able to prove beyond a reasonable doubt that Wonka “intentionally damaged” the Chocolate Factory with fire.

2.    Did the damage occur “without consent” of the other owner?

Will the State be able to prove beyond a reasonable doubt that the fire occurred without the other owner’s consent? Section 943.02(1)(a), Wis. Stat. (2006), requires proof that the owner, other than the accused, did not consent to the arson.  “Without the owner’s consent” requires that at least one owner is not involved in the crime. State v. Jeeves, 201 Wis. 2d 1, 399 N.W.2d 222 (1977). If all owners of record are involved in a plot to commit arson, conviction of one of the owners under §943.02(1) cannot stand. Id. In Jeeves, the other owner, Jackson, was also charged with a crime and confessed that both he and Jeeves had planned to set fire to the apartment building they co-owned so they could obtain insurance money. 

In contrast, in our case, Bucket informed police that he neither had prior knowledge of nor consented to a plan to damage the factory with fire. There is no evidence to suggest that Bucket was being untruthful with the police; in fact, the investigating officer who first contacted Bucket about the fire testified that Bucket expressed “disbelief” that the Chocolate Factory had been set on fire and that Wonka was accused of doing so. Moreover, it does not appear that Bucket was present at the scene of the fire. Therefore, the State is likely to prove the fire occurred without Bucket’s consent. 

However, additional facts exist which may lead a jury to discount Bucket’s statement to police and instead find that Bucket participated in the plan to damage the factory with fire. At the time of the fire, Bucket was under investigation for improper business practices. The factory had operated at a loss for three years, and $1 million was unaccounted for in corporate record books. The amount of missing money is equal to the amount of damage done to the factory.  Additionally, Bucket admitted that he has lost a substantial amount of money gambling at LaCasino. While the amount of gambling loss is undetermined, Bucket stated that he has a Preferred Player’s card, which is issued only to million-dollar gamblers. A jury could believe that the fire was set to obtain insurance money to cover the missing $1 million. Thus, the State may not be able to prove the fire occurred without Bucket’s consent. 

Additionally, there is language in Jeeves that suggests there could be a presumption of involvement in a crime against property on the part of Bucket a joint owner of the Chocolate Factory. Specifically, the Jeeves Court agreed that joint ownership of the property that was damaged could support a presumption of consent, particularly if all joint owners benefited from the damage. The Court chose not to determine whether this presumption should apply to Jackson, the other joint owner of the property, because Jackson was at the scene of the fire and confessed to planning with Jeeves to set the fire. Because Bucket apparently was not at the scene of the fire and did not confess to being part of a plan to set the fire, a court looking at the facts in our client’s case would need to determine whether this presumption should apply to Bucket. Bucket certainly benefited from the payment of insurance money to cover the losses from the fire; that money could be used to replace the money missing from the corporate books that may have been used to feed Bucket’s gambling habit. These facts tending to show a motive for Bucket to agree to the plan to burn the factory, coupled with the potential application of the presumption of consent by joint owners, could make it difficult for the State to prove the fire occurred without Bucket’s consent. 

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