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COURT OF APPEALS
DECISION
NOTICE
DATED AND FILED
This opinion is subject to further editing. If
published, the official version will appear in the
bound volume of the Official Reports.
December 17, 1998
A party may file with the Supreme Court a
                                                                                      Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                                      Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                      of Wisconsin              STATS.
No.                                                                                   98-0425-CR
STATE OF WISCONSIN                                                                    IN COURT OF APPEALS
                                                                                      DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JULIE ANN QUINN,
DEFENDANT-APPELLANT.
APPEAL  from a judgment and  an order  of  the circuit court for
Portage County:   THOMAS T. FLUGAUR, Judge.   Affirmed.
Before Eich, Vergeront and Deininger, JJ.
EICH, J.    Julie Ann Quinn was charged with first-degree intentional
homicide of her newborn infant.   The jury found her guilty of the lesser-included
offense of first-degree reckless homicide, and concealing a corpse.   She appeals
from the judgment of conviction, and also from an order denying her motion for
postconviction relief, arguing: (1) that the trial court erred in allowing evidence




No. 98-0425-CR
(a) that she had been pregnant and delivered a child several years earlier, (b) that
she failed to disclose the pregnancy that led to the filing of the instant charges, and
(c) that she was known not to like children; (2) that expert testimony regarding the
cause of the infant’s death was improperly admitted; (3) that the court improperly
instructed the jury on “causation” and what constitutes “life,” and on the lesser
included offense of first-degree reckless homicide; and  (4) that her twenty-five
year sentence was unreasonably harsh.   We reject her arguments and affirm the
judgment and order.
On December 21, 1995, Quinn gave birth to what appeared to be a
full-term  baby  boy.1    She  testified  that  she  had  passed  out  in  her  bathtub,
delivering the infant while she was unconscious.    She testified that when she
regained consciousness the infant appeared to be dead: “[H]e was blue and the
cord  was  around  his  neck,  and  he  wasn’t  moving,  and  there  was  blood
everywhere.”   At one point, the infant made a “gurgling” sound so she put her
hand over its mouth “to see if [he was] breathing.”   She then put her hands on the
infant’s chest “to see if there was any kind of heartbeat.”   She stated: “He didn’t
make another sound, and he wasn’t moving, and ... he was dead.”
Quinn  wrapped  the  infant  in  a  plastic  bag  and  placed  it  in  an
unheated breezeway in her home.   She didn’t tell anyone about her pregnancy or
the delivery—including her live-in boyfriend, the infant’s father—until several
days later, after she became ill and was hospitalized.    Nurse Donna Sorenson
testified that Quinn told her: “I do think the baby was breathing and I think I may
1  A pathologist, testifying for the State, stated that the infant was                             “well-formed  …
appearing to be full-term both by size and by the fact that finger and toenails were present and
well-developed.”
2




No. 98-0425-CR
have killed it.”   She said: “The placenta and blood and everything was so ugly, so
I took a blanket and wrapped the baby up and put my hand over the baby so it
wouldn’t breathe.”
As  indicated,  Quinn  was  charged  with  first-degree  intentional
homicide and hiding a corpse.  She challenges only the first on this appeal.
At trial, two defense  experts testified that the infant died in the
womb  of  natural causes and never  breathed  after  birth.    The  State, however,
presented  expert  testimony  that  the  infant  was  born  alive  and  died  from
suffocation—or possibly hypothermia—either when Quinn placed her hand over
its mouth, or from being sealed in the plastic bag.   At the State’s request, the court
instructed the jury on the lesser-included offense of first-degree reckless homicide.
After a five-day trial, the jury found Quinn guilty of first-degree
reckless homicide  (and hiding a corpse) and she was sentenced to twenty-five
years in prison.
I.  Evidentiary Rulings
Quinn argues first that the court erred in allowing evidence that, ten
years earlier, she had been pregnant and delivered a baby.   Initially, the court ruled
that such evidence was inadmissible “other acts” character evidence.   The court
indicated at that time, however, that the issue could be revisited at trial if it
appeared appropriate as rebuttal evidence.
In his opening statement, defense counsel characterized Quinn as
being confused and surprised by her pregnancy.   He said that when she realized
she  was  pregnant,  “she  didn’t  know  what  to  do.”    Later,  during  her  cross-
examination, Quinn was asked by the prosecutor whether she was “familiar with
3




No. 98-0425-CR
what a woman’s body goes through” during pregnancy, and she replied:  “Not
terribly.    My first pregnancy was an exceptional pregnancy.”    The prosecutor
requested a conference outside the jury’s presence and argued to the court that
Quinn had “opened the door” for further questioning regarding her first pregnancy.
He contended that the evidence was relevant in light of Quinn’s testimony that she
didn’t know what to do when she learned she was pregnant, that she thought her
labor pains were simply a case of food poisoning, and that she thought the delivery
was a miscarriage; and he argued that the evidence of her earlier pregnancy and
delivery would show that she was in fact “fully aware of the rigors of pregnancy,”
“fully aware of what types of changes would occur in her body during pregnancy,”
and “fully aware of what to expect during the delivery of her child.”   The trial
court  agreed,  reversing  its  earlier  ruling  and  declaring  the  evidence  to  be
admissible—not  as  evidence  of  bad  character,  but  rather  to  show  Quinn’s
familiarity with pregnancy and child-delivery.
Quinn  then  testified  that,  when  it  was  discovered  that  she  was
pregnant ten years earlier, her parents placed her in a hospital-affiliated home for
unwed mothers.   She stayed at the home for one month, during which time she
received limited instruction and counseling, and underwent physical examinations.
Quinn said that her first child was born prematurely, that she never saw the child
after delivery and placed it for adoption.
The acceptance or rejection of evidence is discretionary with the trial
court, State v. Alsteen, 108 Wis.2d 723, 727, 324 N.W.2d 426, 428 (1982), and
“[w]e will not reverse a discretionary determination ... if the record shows that
discretion was ... exercised and we can perceive a reasonable basis for the court’s
decision.”   Prahl v. Brosamle, 142 Wis.2d 658, 667, 420 N.W.2d 372, 376 (Ct.
App. 1987).   We do not test a trial court’s discretionary rulings by some subjective
4




No. 98-0425-CR
standard, or even by our sense of what might be a “right” or “wrong” decision; the
court’s ruling will stand unless “no reasonable judge, acting on the same facts and
underlying law, could reach the same conclusion.”   State v. Jeske, 197 Wis.2d
905, 913, 541 N.W.2d  225,  228  (Ct. App.  1995).   If, however, a discretionary
decision rests upon an error of law, the decision exceeds the limits of the court’s
discretion.   State v. Wyss, 124 Wis.2d 681, 734, 370 N.W.2d 745,  770 (1985),
overruled  on  other  grounds,  State  v.  Poellinger,                                    153  Wis.2d  493,  506,  451
N.W.2d 752, 757 (1990).
Quinn  argues  that  her  testimony  is  inadmissible                                     “other  acts”
evidence, under § 904.04(2), STATS., which provides:
(2) OTHER CRIMES, WRONGS, OR ACTS. Evidence of
other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that the person acted
in conformity therewith. This subsection does not exclude
the evidence when offered for other purposes, such as proof
of   motive,   opportunity,   intent,   preparation,   plan,
knowledge, identity, or absence of mistake or accident.
To qualify for admission under the statute, other-acts evidence must
first fall within one of the recognized exceptions.   If it does, the court must then
determine whether its probative value is substantially outweighed by the danger of
undue prejudice resulting from its admission.   State v. Ingram, 204 Wis.2d 177,
184, 554 N.W.2d 833, 836 (1996).   Stressing that circumstances surrounding her
earlier pregnancy did not prepare her “to give prenatal care” or “make appropriate
crisis decisions” a decade later, Quinn argues that the evidence is irrelevant and
prejudicial,  and  does  not  come  within  any  of  the  statutory exceptions  to  the
character-evidence rule.
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No. 98-0425-CR
We disagree.   Section 904.04(2), STATS., allows other acts evidence
if it is relevant to something other than character.    See State v. Johnson,  184
Wis.2d 324, 336, 516 N.W.2d 463, 466 (Ct. App. 1994).   Relevant evidence is
evidence  having  any  tendency  to  make  the  existence  of  any  fact  that  is  of
consequence to the determination more probable or less probable than it would be
without the evidence.   Section 904.01, STATS.   Evidence that Quinn experienced a
previous pregnancy is relevant to show “absence of mistake or accident” in that it
tends to show—contrary to her direct testimony—her awareness of the necessity
of prenatal care and the potential complications that can arise during pregnancy
and delivery.   In allowing the evidence, the trial court stated:
[T]he testimony of the defendant was that she didn’t know
how far along she was in the pregnancy, and she didn’t -
she was sick, and nauseous and was feverish.    And the
State is wishing to bring in this prior pregnancy to show
that she would have had some experience in it and that she
would have knowledge as to how far along she was in her
pregnancy, having experienced it before ….   I don’t think
it’s being brought in for purposes of bad character, and
that’s why I excluded it in the pretrial.   I think that the State
has demonstrated relevance, and I’m going to allow the
State to cross-examine in this area.   I think it does have
relevance and some probative value….
As to balancing the probative value of the evidence against the possibility of
undue prejudice, while the court did not expressly engage in a balancing analysis,
it did state that, when it made the pretrial ruling excluding the evidence, it was
“concern[ed]” that the evidence would be offered solely in the context of showing
Quinn’s “bad character” because she had a prior out-of-wedlock child.
The concern the Court had in the pretrial motion …
[was] whether … this was going to be brought in simply as
bad  character  from  the  standpoint  that  a  person  had  a
pregnancy 10 years ago, or had any previous pregnancies
out of wedlock, that it’s in some respect—certainly it isn’t
in today’s society looked—looked upon in the same was as
it  may  have  been  20  or  30  years  ago  in  terms  of  bad
6




No. 98-0425-CR
character, but it certainly does have a certain connotation to
it, and I didn’t think it would be relevant evidence just
taken out of any type of context.
As indicated,  the  court went on to consider  the  evidence  in  the
context of the testimony presented at trial, and permitted it.   And while we often
have  stressed  the  importance  of  a  trial  court’s  explanation  of  the  reasons
underlying a discretionary decision, we have also said that “[i]t is enough that [the
court’s on-the-record statements] indicate to the reviewing court that the … court
“under[took] a reasonable inquiry and examination of the facts” and  “the record
shows a reasonable basis for the … court’s determination.”   Burkes v. Hales, 165
Wis.2d 585, 590-91, 478 N.W.2d 37, 39 (Ct. App. 1991).   We are satisfied that, on
this record, the trial court could reasonably determine that the probative value of the
evidence of Quinn’s earlier pregnancy outweighed any danger of undue prejudice;
and that is all that is required for a discretionary ruling to be sustained on appeal.
Quinn also argues that testimony concerning her failure to disclose
her most recent pregnancy should have been excluded.   However, because she
never objected to the introduction of this evidence at trial, she has waived her right
to raise this claim on appeal.   Section 901.03(1)(a), STATS.; Caccitolo v. State, 69
Wis.2d 102, 113, 230 N.W.2d 139, 145 (1975).   Quinn urges us to consider the
issue despite her waiver, claiming that that this case “illustrates the need to more
fully  develop  the  law  about  the  use  of  a  person’s  silence.”    We  have  often
expressed our reluctance to address unpreserved issues unless the case presents
“the most unusual circumstances which go directly to issue of guilt,” State v. Gove
148 Wis.2d  936,  943-44,  437 N.W.2d  218,  221  (1989)  (citation omitted), and
neither  the  record  before  us,  nor  Quinn’s  arguments,  have  persuaded  us  that
exceptional or unusual circumstances exist that would warrant relieving Quinn of
the effect of her failure to object.
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No. 98-0425-CR
Quinn next argues that the court erred in allowing evidence that she
didn’t like children and that her live-in boyfriend was unable to father children.
Here,  too,  we  see  no  error.    This  testimony,  coupled  with  evidence  that  her
boyfriend also dislikes children, is also relevant to her motive and intent to kill the
infant and its probative value, although slight, is not outweighed by the danger of
unfair prejudice.   Quinn had ample opportunity to explain her misstatements and
let the jurors arrive at their own conclusions.
II.  Expert Testimony
Quinn next argues that the court improperly allowed Dr. Jeffrey
Jentzen to testify that hypothermia was a possible cause of the infant’s death: that
it died                                                                                     “as a result of asphyxia and with the possible addition that there was
hypothermia and exposure.”
Quinn had objected to Jentzen’s testimony at the preliminary hearing
that the infant’s death was caused by asphyxia and neglect.    Defense counsel
moved to exclude the testimony concerning neglect, and the trial court reserved a
ruling on the point.   Counsel renewed the objection at trial and, in an off-the-
record discussion, the court ruled that there was inadequate foundation to allow
Jentzen to testify that the infant’s death was caused in part by neglect on Quinn’s
part.   Jentzen then stated that he was prepared to testify that the death was “not
accidental.”   When the jury returned, Jentzen testified that, in his opinion, “the
child died as a result of asphyxia and with the possible addition that there was
hypothermia or exposure.”
On appeal, Quinn argues that Jentzen’s testimony was inconsistent
with  his  off-the-record  representation  and  that  the  court  erred  in  allowing  it
“because the defense had no notice of the testing which supported the conclusion
8




No. 98-0425-CR
of Dr. Jentzen.”   And she says that “[t]he introduction of such testimony by Doctor
Jentzen on his own warrants  … a new trial.”    The argument is not explained
further.
It is well-established that a trial court cannot be faulted on appeal for
failing to exercise discretion if it was never asked to do so.   State v. Bustamante,
201 Wis.2d 562, 573, 549 N.W.2d 746, 750 (Ct. App. 1996); McClelland v. State,
84 Wis.2d 145, 157-58, 267 N.W.2d 843, 848-49 (1978).   In Whitty v. State, 34
Wis.2d 278, 290, 149 N.W.2d 557, 562 (1967), the supreme court stated that it
“has not looked with favor upon claims of prejudicial error based upon the trial
court’s failure to act when no action was requested by counsel.”   Quinn never
objected to Jentzen’s testimony based on a lack of notice; her sole objection was
lack of foundation.   Nor did she request any immediate remedy—such as striking
the  testimony  or  permitting  her  counsel  additional  time  to  prepare  a  cross-
examination—at the time.   Quinn has not persuaded us that the court erroneously
exercised its discretion in allowing the testimony.
III.   Jury Instructions
Quinn argues first that the court inadequately instructed the jury by
failing to adequately define the concepts of  “causation” and  “what constitutes
life.”   She concedes that she never objected to the proposed instructions at the
instruction conference, and that she never submitted any alternative instructions to
the court.   It follows that she has waived her right to claim error on appeal.   See
State v. Schumacher, 144 Wis.2d 388, 409, 424 N.W.2d 672, 680 (1988); State v.
Zelenka, 130 Wis.2d 34, 44, 387 N.W.2d 55, 59 (1986) (failure to object to a jury
instruction before the trial court constitutes a waiver of the error).
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No. 98-0425-CR
She argues, however, that we should reach the issue in the exercise
of our discretionary authority under § 752.35, STATS., which, among other things,
allows  us  to  order  a  new  trial                                                                   “if  it  appears  from  the  record  that  the  real
controversy has not been fully tried.”   Quinn says that the “central”   issues in the
case are whether the infant was alive at delivery, and whether it appeared to be so
to her, and she maintains that the pattern instructions given by the court “give a
jury no guidance whatsoever concerning what constitutes life.”   Then, stating that
because “[t]his particular issue is likely to take place in similar cases over an over
again  …  [t]rial judges, lawyers, and juries need guidance on the subject,” we
should order “[a]dditonal briefing … on the question of whether the Quinn jury
should have been more adequately instructed on the definition of life.”
Quinn has not informed us of the instructions given by the court; nor
has she suggested what instructions she believes the court should have given.
Beyond that, she has not offered any legal authority in support of her position,
and,  as  we  have  often  said,  we  do  not  consider  arguments  unsupported  by
references  to  legal  authority.    See  State  v.  Pettit,                                           171  Wis.2d  627,  646,  492
N.W.2d 633, 642 (Ct. App. 1992).   Quinn has filed two briefs in this case, and we
see no need to provide any further opportunity to address the issue.2   Quinn has
offered no basis for the exercise of our discretionary authority under § 752.35,
2  In her reply brief, she says that, from her perspective, “there is now plenty of time to
brief this or any other issue which the Court of Appeals wants to decide,” and repeats her offer to
“write a supplemental brief … if ordered to do so.”    She then states that she is not “address[ing]
this issue now because frankly no briefing on the subject could be adequate and still raise other
issues in the case.”
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No. 98-0425-CR
STATS., to order a new trial in the interest of justice based on the trial court’s
instructions to the jury.3
Quinn next argues that the court erred in granting the prosecutor’s
request for a jury instruction on the lesser-included offense of first-degree reckless
homicide.
Whether a lesser-included offense should (or should not) have been
submitted to the jury is a question of law which we review de novo.   See State v.
Martin, 156 Wis.2d 399, 402, 456 N.W.2d 892, 894 (Ct. App. 1990).   In making
this determination, we invoke a two-step analysis.   First, we consider whether the
crime for which the instruction is requested is a lesser-included offense of the
crime charged.   If it is, we then consider whether there is a reasonable basis in the
evidence for acquittal on the charged offense and conviction on the lesser offense.
Id.  In  doing  so,  we  view  the  evidence                                                          “in  the  light  most  favorable  to  the
3  Quinn’s argument that the court misinstructed the jury with respect to “causation”—in
its entirety—is as follows:
The causation language was also inadequate. Dr. Jentzen
testified that the infant’s death in this case was caused in part by
hypothermia.     He  talked  about  the                                                               “possible  addition  of
hypothermia or exposure.”
Is the                                                                                                “possible additional” the equivalent substantial
factor?  The Quinn jury based upon this record did not know.
The instruction concerning causation, like the instruction
concerning what constitutes life, was inadequate.
As indicated, we are not informed either of what instructions the court gave on the
subject, or what instructions Quinn feels should have been given.   Where arguments “are not
developed  themes  reflecting                                                                         ...  legal  reasoning,”  but  instead              “are  supported  by  only  general
statements,” we will decline to review them as inadequately briefed.”   State v. Pettit, 171 Wis.2d
627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992).
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No. 98-0425-CR
defendant.”   See State v. Kramar, 149 Wis.2d 767, 792, 440 N.W.2d 317, 327
(1989).
Quinn does not dispute the fact that first-degree reckless homicide is
a lesser-included offense of the charged crime of first-degree intentional homicide;
she argues only that the jury had no reasonable grounds to acquit her on the
greater  offense                                                                           (intentional  homicide),  and  convict  her  of  the  lesser  (reckless
homicide).   We agree with the State that the jury was entitled to believe Quinn’s
testimony that she planned to either keep the baby or place it for adoption—that
she  “didn’t know what to do”—and thus conclude that, however reckless her
actions, she lacked intent to kill the baby.   Without the requisite intent to kill,
Quinn could not have been convicted of first-degree intentional homicide.   The
jury could also conclude from the evidence that the baby was born alive—that it
was “gurgling” or breathing—and that it died from asphyxia when Quinn placed
her hand over its mouth and compressed its chest.   We are satisfied that the test for
submission of first-degree reckless homicide as a lesser-included offense was met
in this case.
IV.  Excessive Sentence
Finally, Quinn challenges her twenty-five year sentence, arguing that
it is unreasonable and more severe than sentences imposed in other cases for
similar acts.
Sentencing is committed to the sound discretion of the trial court,
and our review is limited to determining whether there has been a “clear” misuse
of that discretion.   McCleary v. State, 49 Wis.2d 263, 278, 182 N.W.2d 512, 520
(1971).   Our limited review in this area reflects the strong public policy against
interference  with  sentencing  discretion;  we  presume  that  the  trial  court  acted
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No. 98-0425-CR
reasonably,  and  we  assign  to  the  defendant  the  burden  of                        “show[ing]  some
unreasonable or unjustified basis in the record for the sentence complained of.”
State v. Harris, 119 Wis.2d 612, 622-623, 350 N.W.2d 633, 638-639 (1984).   We
do so, at least in part, because the trial court “has a great advantage in considering
the relevant factors and the defendant’s demeanor.”   State v. Roubik, 137 Wis.2d
301, 310, 404 N.W.2d 105, 108 (1987).
When imposing a sentence, a trial court may consider—in addition
to the gravity of the offense, the offender’s character and the public’s need for
protection—a  variety  of  factors,  including:  the  defendant’s  prior  record  of
offenses; his or her age, personality, character and social traits; the viciousness or
aggravated nature of the crime and the degree of the defendant’s culpability; his or
her demeanor, including remorse, repentance, or cooperation with authorities; the
defendant’s—and the victim’s—rehabilitative needs; and the needs and rights of
the public.   State v. Thompson, 172 Wis.2d 257, 264-65, 493 N.W.2d 729, 732-33
(Ct. App. 1992).   Whether a particular factor or characteristic will be considered
an  aggravating  or  mitigating  circumstance  will  depend  upon  the  particular
defendant and the particular case.    Id. at  265,  493 N.W.2d at  733.    This is a
principle inherent in the concept of individualized sentencing.  Id.
Finally, we must not substitute our own sentencing preferences for
that of the trial court in a particular case.    McCleary,  49 Wis.2d at  281,  182
N.W.2d at 521.   Indeed, we have a duty to affirm the sentence if the facts show it
is sustainable as a proper discretionary act—even in cases where the court fails to
adequately explain its reasons for selecting the sentence it did.   Id. at 282, 182
N.W.2d at 522.
We reject Quinn’s argument that her sentence is unreasonably harsh
because other offenders convicted of killing their newborn infants have received
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No. 98-0425-CR
lesser sentences.   Lesser sentences for similar crimes in other cases provide no
legal  basis  overturning  Quinn’s  sentence—especially  in  the  absence  of  some
identifiable connection between Quinn and the particular details of her crimes and
the other defendants and the details of their crimes.
There  is  no  requirement  that  defendants  convicted  of
committing similar crimes must receive equal or similar
sentences.   On the contrary, individualized sentencing is a
cornerstone   to   Wisconsin’s   system   of   indeterminate
sentencing.    No  two  convicted  felons  stand  before  the
sentencing court on identical footing.   The sentencing court
must assess the crime, the criminal, and the community,
and no two cases will present identical factors.   Imposing
such a requirement would ignore the particular mitigating
and aggravating factors in each case.   The defendant here
has failed to establish any connection between himself and
his crimes and these defendants and crimes to which he has
compared his sentence.   Absent such connection, disparate
sentences are totally irrelevant to the sentence imposed in
this case.
State  v.  Lechner,  217  Wis.2d  392,  427-28,  576  N.W.2d  912,  928-29  (1998)
(internal quotation marks and quoted sources omitted).
The  transcript  of  the  sentencing  hearing  indicates  that  the  court
carefully  considered  the  trial  testimony,  counsel’s  sentencing  arguments,  the
presentence investigation report and the relevant legal factors in imposing the
sentence.   In addition to considering the aggravated nature of the crime, the court
specifically considered—and discussed at length: Quinn’s personality, character,
and  social  traits;  the  degree  of  her  culpability;  her  demeanor  at  trial  and
truthfulness; her age, education and employment record; her history of undesirable
behavior; her remorse and repentance; and her rehabilitative needs.    The court
commented on the severity of the offense, that Quinn had lied several times, that
she “continues to fail to accept responsibility for her actions and that there isn’t a
lot of repentance or remorse,” and that there was a need for “specific deterrence of
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No. 98-0425-CR
this individual as  well as the  general deterrence  of  other  individuals  ...  from
committing such acts.”
The court carefully considered and weighed the relevant legal factors
in imposing the sentence and we have consistently held that the weight to be given
to any particular factor is left to the court’s discretion.    See Thompson,  172
Wis.2d at 264, 493 N.W.2d at 732.   Quinn has not persuaded us that the court
erroneously exercised its discretion in selecting the sentence it did.
By the Court.—Judgment and order affirmed.
Not recommended for publication in the official reports.
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