COURT OF = APPEALS

COURT OF APPEALS

DECISION

DATED AND FILED

May 7, 2009

David=20 R. Schanker

Clerk of Court of Appeals

NOTICE

This opinion = is subject to=20 further editing. If = published, the official version will appear in the bound volume of = the=20 Official Reports. =

A party may = file with the=20 Supreme Court a petition to review an adverse decision by the = Court of=20 Appeals. See = Wis. Stat. =A7 808.10 = and Rule 809.62.

Appeal No. =20

2008AP658-CR

Cir.=20 Ct. No. 2003CF1783

STATE OF WISCONSIN

IN COURT OF=20 APPEALS

DISTRICT=20 IV

State=20 of Wisconsin,

=20 P= laintiff-Respondent,

Michael=20 A. Sveum,

&n= bsp; Defendant-Appellant= .

=20 APPEAL from a judgment and an order of the circuit court for=20 Dane = County: steven d. ebert, Judge. Affirmed.

=20 Before Dykman, Lundsten and Bridge, JJ.

=B61 =20 LUNDSTEN, J. Michael Sveum challenges his=20 aggravated stalking conviction. = At=20 Sveum=92s jury trial, the prosecution presented detailed tracking = information=20 about the movements of Sveum=92s car obtained from a Global Positioning = System=20 tracking device (GPS device) that police secretly attached to his = car. Sveum argues that the police = obtained=20 this tracking information in violation of his Fourth Amendment right to = be free=20 from unreasonable searches and seizures. =20 The State responds that no Fourth Amendment search or seizure = occurs when=20 police attach a GPS device to the outside of a vehicle while it is in a = place=20 accessible to the public and then use that device to track the vehicle = while it=20 is in public view. We = agree with=20 the State. At the same = time, we=20 urge the legislature to consider regulating both police and private use = of GPS=20 tracking technology.

=B62 =20 Sveum=92s other challenges to his conviction include whether the = GPS=20 tracking information should be suppressed under the Wisconsin Electronic = Surveillance Control Law, whether a search warrant for Sveum=92s = residence and car=20 was valid, whether the circuit court committed error by admitting = evidence of=20 Sveum=92s prior stalking conviction, whether Sveum=92s trial counsel was = ineffective, and whether an erroneous jury instruction requires a new=20 trial. We reject all of = Sveum=92s=20 arguments and affirm the judgment and order.

Background

=B63 = Sveum=20 was convicted of stalking Jamie Johnson in 1996 and was later imprisoned = for=20 related crimes against Johnson. In=20 1999, from prison, he began stalking Johnson again with help from his=20 sister. Sveum continued = stalking=20 Johnson when he was released from prison in 2002. In March 2003, Johnson = reported to the=20 police that she believed Sveum was stalking her again.

=B64 = As=20 part of their investigation, police sought and received a warrant = authorizing=20 them to covertly attach a GPS device to Sveum=92s car in order to track = it. Based in part on tracking = information=20 retrieved from the GPS device, the police obtained a warrant to search = one of=20 Sveum=92s residences and his car.[1] The search revealed additional = evidence=20 incriminating Sveum, along with evidence confirming his sister=92s=20 involvement.

=B65 = Sveum=20 was charged with an aggravated stalking offense under Wis. Stat. =A7 940.32(2) = and (3)(b)=20 (2001-02), as party to a crime.[2] The more serious = =93aggravated=94 version of=20 the crime was charged based on Sveum=92s previous conviction for = stalking=20 Johnson. See = =A7 940.32(3)(b). The circuit court denied = motions by=20 Sveum to suppress evidence obtained from the GPS device and from the = search of=20 his residence and car. A = jury found=20 Sveum guilty, and the court sentenced him to seven years and six months = in=20 prison followed by five years of extended supervision. We discuss additional facts as = needed=20 below.

Discussion

A. Suppression Of GPS Evidence = Under Fourth=20 Amendment

=B66 = Sveum=20 challenges the admission of GPS tracking information showing the = movements of=20 his car. He argues that = the=20 warrant[3]=20 authorizing police to place the GPS device on his car was overly = broad. The State responds that the = warrant was=20 unnecessary because no Fourth Amendment search or seizure occurred. In reply, Sveum implicitly = concedes that=20 placing the GPS device on his car and using it to monitor public travel does not = implicate the=20 Fourth Amendment. He = contends,=20 however, that because the GPS device permitted the police to monitor the = location of his car while it was in his garage and in his employer=92s = garage,=20 places out of public view, all of the information obtained from the GPS = device=20 should have been suppressed. =20 Because we agree with the State that no Fourth Amendment search = or=20 seizure occurred, we do not address Sveum=92s warrant argument.

=B67 = We=20 begin with a recap of the pertinent facts. =20 The battery-powered GPS device used here periodically receives = and stores=20 location information from one or more satellites. To obtain tracking = information, the=20 device must be physically retrieved and its information downloaded to a=20 computer. The result is a = detailed=20 history, including time information, of the device=92s location and, = hence, the=20 vehicle=92s location. = While Sveum=92s=20 car was in his driveway, police secretly attached the device to the = underside of=20 his car with a magnet and tape. = The=20 police tracked Sveum=92s car with the device for about five weeks. During this time, Sveum parked = his car=20 in his enclosed garage and inside a garage at his place of employment, a = car=20 care center.

=B68 = We=20 agree with the State that neither a search nor a seizure occurs when the = police=20 use a GPS device to track a vehicle while it is visible to the general=20 public. The seminal cases = on this=20 topic are United States v. Knotts,=20 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 705 = (1984).

=B69 = In Knotts, government agents = planted a=20 =93beeper=94=97a radio transmitter emitting periodic signals that permit = tracking with=20 a radio receiver=97inside a five-gallon drum. See Knotts, 460 U.S. at=20 277-78. Using the beeper, = the=20 agents were able to track a vehicle transporting the drum and determine = that it=20 had come to rest on the defendant=92s premises. Id. at=20 277-78, 282, 284-85. The = Court held=20 that the monitoring of the beeper while the vehicle was in public view = did not=20 invade any legitimate expectation of privacy and, therefore, did not = constitute=20 a search or seizure under the Fourth Amendment. Id. at=20 285. The Court reasoned = that the=20 device simply made it easier to discover what was already =93voluntarily = conveyed=20 to anyone who wanted to look.=94 See id. at 281-82. The Court explained:

A person = traveling in an=20 automobile on public thoroughfares has no reasonable expectation of = privacy in=20 his movements from one place to another. =20 When [one of the defendant=92s accomplices] traveled over the = public=20 streets he voluntarily conveyed to anyone who wanted to look the fact = that he=20 was traveling over particular roads in a particular direction, the fact = of=20 whatever stops he made, and the fact of his final destination when he = exited=20 from public roads onto private property.

... [N]o ... expectation of = privacy extended=20 to the visual observation of [the] automobile arriving on [the private] = premises=20 after leaving a public highway, nor to movements of objects such as the = drum of=20 chloroform outside the cabin in the =93open fields.=94

Visual = surveillance from=20 public places along [the] route or adjoining Knotts=92 premises would = have=20 sufficed to reveal all of these facts to the police.

Id.=20 (citation omitted). The = Knotts Court specifically = noted that=20 =93nothing in [the] record indicates that the beeper signal was received = or relied=20 upon after it had indicated that the drum =85 had ended its automotive = journey to=20 rest on [defendant]=92s premises.=94 =20 Id. at=20 284-85. Similarly, = =93there [was] no=20 indication that the beeper was used in any way to reveal information as = to the=20 movement of the drum within the [premises], or in any way that would not = have=20 been visible to the naked eye from outside the cabin.=94 Id. at=20 285. Thus, the Court = concluded, the=20 Fourth Amendment was not implicated. =20 Id.

=B610 In = contrast, a=20 year later in Karo, the Court concluded = that when=20 police used a similar beeper planted in a similar container to determine = how=20 long the container remained at certain locations and to reveal the = specific=20 location of the container within a storage facility, a Fourth Amendment = search=20 occurred. See Karo, 468 U.S. at=20 708-10, 717-18 & n.5. = The=20 Karo=20 Court explained that the government used the = device=20 to obtain =93information that it could not have obtained by observation = from=20 outside the curtilage of the house.=94 See id. at 715-16.

=B611 Knotts and Karo teach that, to the = extent a=20 tracking device reveals vehicle travel information visible to the = general=20 public, and thus obtainable by warrantless visual surveillance, the use = of the=20 device does not normally implicate Fourth Amendment protections. It follows that no Fourth = Amendment=20 violation occurred here simply because the police used a GPS device to = obtain=20 information about Sveum=92s car that was visible to the general = public.

=B612 We also = agree=20 with the State that the police action of attaching the GPS device to = Sveum=92s=20 car, either by itself or in combination with subsequent tracking, does = not=20 constitute a search or seizure.[4]=20 The State aptly = relies on United States v. Garcia, = 474 F.3d=20 994 (7th Cir. 2007).

=B613 The Garcia court concluded = that=20 attaching a GPS device to a car while the car was in a public place did = not=20 convert the subsequent tracking into a Fourth Amendment search. See id. at 996-98. The court reasoned:

[I]f police follow a car around, or observe = its route by=20 means of cameras mounted on lampposts or of satellite imaging as in = Google=20 Earth, there is no search. Well,=20 but the tracking in this case was by=20 satellite. Instead of = transmitting=20 images, the satellite transmitted geophysical coordinates. The only difference is that in = the=20 imaging case nothing touches the vehicle, while in the case at hand the = tracking=20 device does. But it is a=20 distinction without any practical difference.

Id. at 997. Like the Seventh Circuit, we = discern no=20 privacy interest protected by the Fourth Amendment that is invaded when = police=20 attach a device to the outside of a vehicle, as long as the information = obtained=20 is the same as could be gained by the use of other techniques that do = not=20 require a warrant.

=B614 Sveum = might=20 respond that, unlike Garcia, the police here = did not=20 attach the GPS device while his car was parked in a public place. However, the circuit court = concluded=20 that Sveum=92s driveway was not constitutionally protected = =93curtilage,=94 and Sveum=20 does not challenge this ruling or otherwise present a developed argument = as to=20 why the police engaged in a search or seizure by entering his = driveway.

=B615 = Accordingly, we=20 follow Garcia=92s lead and = conclude that the=20 attachment of a GPS device to Sveum=92s car does not change our view = that, under=20 Knotts and Karo, no Fourth Amendment = search or=20 seizure occurred here.

=B616 Sveum = argues that=20 all of the tracking information should be suppressed because the GPS = device=20 monitored the location of his car when it was out of public view. We reject this argument for = two=20 reasons.

=B617 First, = although=20 the police presumably obtained location information while Sveum=92s car = was inside=20 areas not open to surveillance, there is no indication that this same=20 information could not have been obtained by visual surveillance from = outside=20 these enclosures. Such = surveillance=20 could have told the police when Sveum=92s car entered or exited his = garage and the=20 garage at his workplace and, therefore, informed them when his car = remained in=20 those places. Sveum does = not argue=20 that the police used the GPS device to track his car=92s movements within the enclosures.

=B618 Second, = even if=20 the police had obtained some information about the movement of Sveum=92s = car=20 within the enclosures and this information should have been suppressed, = Sveum=20 suggests no reason why all = of the=20 tracking information should be suppressed. =20 Although we need not exhaustively analyze this issue, we note = that=20 properly obtained evidence is generally not excluded simply because a = search is=20 illegally extended to improperly obtain evidence. See State v. Noll, 116 = Wis. 2d 443, = 454-55, 343=20 N.W.2d 391 (1984) (=93Insofar as the searcher exceeds the scope of the = validly=20 authorized search, items so seized must be suppressed. However, as to those items = discovered in=20 the lawful execution of the valid part of the warrant, the Fourth = Amendment does=20 not require suppression.=94). =20 Similarly, properly obtained and incriminating wiretap = information is not=20 suppressed solely because police also overhear unrelated private = conversations=20 that they would otherwise have no right to overhear.[5] It is not apparent why a = balancing of=20 interests should not produce the same rule when applied to the GPS = tracking=20 situation here.

=B619 = Accordingly, we=20 conclude that no Fourth Amendment search or seizure occurs when police = attach a=20 GPS device to the outside of a vehicle while it is in a place accessible = to the=20 public and then use that device to track the vehicle while it is in = public=20 view. Because this case = does not=20 involve tracking information on the movement of Sveum=92s car within a = place=20 protected by the Fourth Amendment, it follows that the circuit court = correctly=20 rejected Sveum=92s Fourth Amendment suppression argument.

=B620 We are = more than=20 a little troubled by the conclusion that no Fourth Amendment search or = seizure=20 occurs when police use a GPS or similar device as they have here. So far as we can tell, = existing law does=20 not limit the government=92s use of tracking devices to investigations = of=20 legitimate criminal suspects. If=20 there is no Fourth Amendment search or seizure, police are seemingly = free to=20 secretly track anyone=92s = public=20 movements with a GPS device. = As the=20 Seventh Circuit observed:

The new technologies enable, as the old = (because of=20 expense) do not, wholesale surveillance. One can imagine the police = affixing GPS=20 tracking devices to thousands of cars at random, recovering the devices, = and=20 using digital search techniques to identify suspicious driving patterns. = One can even imagine a law = requiring all=20 new cars to come equipped with the device so that the government can = keep track=20 of all vehicular movement in the United States=85.

=20 =85.

Technological = progress poses=20 a threat to privacy by enabling an extent of surveillance that in = earlier times=20 would have been prohibitively expensive.

Garcia, 474 F.3d at = 998.

=B621 We are = also=20 concerned about the private use of GPS surveillance devices. As the Seventh Circuit and a = recent New=20 York Times article indicate, GPS technology is available at low cost to = the=20 general public. See Garcia, 474 F.3d at 995; = David=20 Pogue, Peekaboo, Zoombak Sees = You,=20 N.Y. Times, Apr. 23, = 2009, at B1,=20 B8. Although there are = obviously=20 legitimate private uses, such as a trucking company monitoring the = location of=20 its trucks, there are also many private uses that most reasonable people = would=20 agree should be prohibited.[6]=20

=B622 = Consequently, we=20 urge the legislature to explore imposing limitations on the use of GPS = and=20 similar devices by both government and private actors. Such limitations would appear = to be=20 consistent with limitations the legislature has placed on electronic = intercepts=20 of communications. See Wisconsin=92s Electronic = Surveillance Control=20 Law, Wis. Stat.=20 =A7=A7 968.27-.33 (2007-08).[7]

B. Suppression Of GPS Evidence = Under=20 Electronic Surveillance Control Law

=B623 As we = have seen,=20 the GPS device used here recorded location information that was = downloaded from=20 the device after it was retrieved from Sveum=92s car. The device did not emit a = signal=20 permitting the police to contemporaneously track Sveum=92s car. It is this aspect of the GPS = device that=20 prompts Sveum to challenge its use under Wisconsin=92s Electronic = Surveillance Control=20 Law, Wis. Stat.=20 =A7=A7 968.27-.33.

=B624 The = Electronic=20 Surveillance Control Law governs the lawfulness and uses of intercepts = of =93wire,=20 electronic or oral communications.=94 =20 See Wis. Stat.=20 =A7=A7 968.28-.31. = The law=20 governs the in-court disclosure of the contents of intercepts of = =93electronic=20 communications.=94 See Wis. Stat. =A7 968.29; = State v. Gilmore, 201 = Wis. 2d 820, = 825, 549=20 N.W.2d 401 (1996) (=93Wisconsin Stat. =A7 968.29 states the = conditions under=20 which disclosure is authorized.=94).

=B625 Sveum = argues that=20 the GPS evidence here was obtained from =93electronic = communication[s]=94 covered by=20 the Electronic Surveillance Control Law and should have been suppressed = because=20 of noncompliance with several provisions in the law. The threshold question is = whether the=20 GPS device used to track Sveum=92s car produced covered electronic = communications=20 or, instead, is excluded from the law=92s coverage because it is a = =93tracking=20 device=94 under Wis. Stat.=20 =A7 968.27(4)(d). = This=20 threshold question involves the application of a statute to undisputed = facts, a=20 question of law that we review de=20 novo. State v. Wilke, 152 = Wis. 2d 243, = 247, 448=20 N.W.2d 13 (Ct. App. 1989). = We give=20 statutory language its common, ordinary, and accepted meaning, except = that=20 technical or specially defined words or phrases are given their = technical or=20 special definitional meaning. State ex rel. Kalal v. Circuit = Court for=20 Dane County, 2004 WI 58, =B645, 271 = Wis. 2d 633, = 681 N.W.2d=20 110. Also, we must = construe=20 statutes to avoid absurd or unreasonable results. Id., =B646.

=B626 As = Sveum=20 acknowledges, the Electronic Surveillance Control Law expressly excludes = from=20 the definition of =93electronic communication=94 those communications = from tracking=20 devices. Wisconsin Stat. = =A7 968.27(4)(d)=20 provides, in pertinent part:

=93Electronic communication=94 does not = include any of the=20 following:

....

(d) Any=20 communication from a tracking device.

=93[T]racking = device=94 is not=20 defined in the statute, but we agree with the State that the GPS device = here is=20 such a device because, so far as the record discloses, its sole function = was to=20 track the location of Sveum=92s car.

=B627 Our = Electronic=20 Surveillance Control Law is modeled on a federal act, and Sveum asserts = that the=20 =93statutory history=94 of the federal act defines a tracking device as = a=20 communication device that =93emits a signal=94 that can be received by = special=20 tracking equipment to trace location. Sveum argues that the GPS = device here is=20 not a =93tracking device=94 because it does not emit any signal. Rather, it receives signals = and stores=20 data that can be retrieved later. =20 We are not persuaded.

=B628 Sveum = provides=20 only a record citation for his =93statutory history=94 argument, and it = leaves=20 unclear what legal authority he is relying on. Our research, based on the = limited=20 information referenced in the record, suggests that Sveum is relying on = a Senate=20 Report that accompanied the 1986 update to the federal act. The Report includes a = preliminary=20 =93glossary,=94 which defines =93electronic tracking devices = (transponders)=94 as=20 Sveum=92s argument indicates. = See S. Rep. No. 99-541, at *10 = (1986). Sveum=92s reliance on this = Senate Report,=20 however, runs headlong into the express language of the enacted federal = law,=20 which broadly defines a =93tracking device=94 as =93an electronic or = mechanical device=20 which permits the tracking of the movement of a person or object.=94 = See 18 U.S.C.S. = =A7 2510(12)(D)=20 (incorporating the definition in 18 U.S.C.S. =A7 3117). Indeed, the Senate Report, in = its=20 =93section-by-section=94 analysis of the act, references the same = definition that=20 appears in the enacted statutes. = See S. Rep. No. 99‑541, at = *33-34. Sveum does not explain why the = =93glossary=94 definition in the Senate Report should control over this=20 plain-language statutory definition, which obviously covers the GPS = device used=20 here. Regardless whether = it emitted=20 a signal, the GPS device enabled the police to track, after the fact, = the=20 movements of Sveum=92s car. =

=B629 Sveum = also points=20 out that the tracking device exception in our Electronic Surveillance = Control=20 Law refers to =93[a]ny communication from a tracking = device.=94 Wis. Stat. = =A7 968.27(4)(d)=20 (emphasis added). He = argues that=20 this phrasing shows that the exception applies only to devices that emit = some=20 sort of signal, not to a device like a GPS device that only receives and = records=20 data for access at a later time. = Sveum=92s argument, however, erroneously assumes that the = communication=20 =93from=94 the device must be simultaneous with the tracked = movement. But the statutory language = imposes no=20 such requirement. = Although obtained=20 later, the information did indeed come =93from=94 the tracking = device.

=B630 = Moreover, the=20 distinction Sveum suggests is not reasonable. It is not rational to limit = the=20 admission of tracking information based on whether it is obtained in = real time=20 by a signal or at a later time by direct access to the device. Thus, Sveum=92s interpretation = of the=20 statute would lead to unreasonable results.

C. Search Warrant For Sveum=92s = Residence And=20 Car

=B631 Sveum = divides his=20 challenge to the search warrant for his residence and his car into two=20 categories. First, he = argues that=20 the warrant application lacked probable cause. Second, he argues that the = warrant did=20 not describe the items to be seized with sufficient particularity. We address each in turn.

1. Probable = Cause

=B632 Our = duty on=20 review is limited to ensuring that the warrant-issuing judge had a = substantial=20 basis for concluding that probable cause existed.=20 State v. DeSmidt, = 155=20 Wis. 2d 119,=20 133, 454 N.W.2d 780 (1990). = We=20 accord great deference to the judge=92s probable cause determination; = that=20 determination will stand unless the defendant establishes that the facts = are=20 clearly insufficient to support a finding of probable cause. State v.=20 Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 = (1991).

=B633 Sveum = argues that=20 there was insufficient probable cause for the warrant to authorize = seizure of=20 the following items: = journals,=20 calendars, logs documenting travel or appointments, binoculars, = flashlights, ski=20 masks, documents mentioning Johnson and certain other individuals, and = personal=20 information related to Johnson or her family.

=B634 Sveum = concedes=20 that the warrant affidavit established that he used or kept many such = items in=20 connection with his 1996 stalking conviction, but asserts that the = application=20 did not provide probable cause to believe that he was keeping such items = in=20 2003.[8] We disagree.

=B635 The = warrant=20 affidavit stated that the affiant was a detective with twenty-two years = of=20 experience who had specialized training in stalking crimes. See State v. Multaler, 2002 WI = 35, =B643,=20 252 Wis. 2d=20 54, 643 N.W.2d 437 (experience and special knowledge of police officers = who are=20 applying for search warrant are facts that warrant-issuing judge may=20 consider). The detective = explained=20 in the affidavit that, based on her training and experience, individuals = who=20 engage in stalking behavior often display an obsessive personality and = exhibit a=20 pattern of conduct, including maintaining visual proximity to the = victim,=20 contacting the victim, and keeping records, journals, or other documents = memorializing their stalking behavior. =20 Also, such individuals often keep evidence of their obsession = with the=20 victim, including records, journals, diaries, calendars of the = victim=92s=20 activities or the activities of other family members, personal = information, or=20 computer records.

=B636 The = affidavit=20 also indicated that the affiant had investigated Sveum=92s prior = stalking crime,=20 and it detailed the many ways that Sveum=92s conduct surrounding the = 1996=20 conviction was consistent with behaviors characteristically exhibited by = individuals who stalk. In = particular, Sveum at that time kept calendars marking down anniversary = dates of=20 his time with Johnson, tracked the mileage on Johnson=92s car, = documented=20 Johnson=92s whereabouts, and retained =93keepsakes,=94 including = earrings, underwear,=20 and a duplicate driver=92s license of Johnson=92s. The affidavit also outlined = the evidence=20 establishing that Sveum was again stalking Johnson in 2003.

=B637 When we = consider=20 all of the information in the warrant affidavit, we conclude that the = affidavit=20 established probable cause to believe that the items enumerated could be = evidence of Sveum=92s 2003 stalking crime. =20

=B638 Sveum = argues that=20 the warrant should not have allowed police to seize computer equipment = because=20 the warrant affidavit lacked specific facts to show that a computer may = have=20 contained evidence of stalking. = He=20 asserts that nothing in the affidavit shows that he used a computer in = the 1996=20 stalking. We are not=20 persuaded. It is readily = inferable=20 from the warrant affidavit that Sveum=92s past stalking conduct involved = obsessively detailed logging, calendaring, and tracking of information = relating=20 to Johnson. Given this = inference,=20 along with the increasing prevalence of computerized information and = personal=20 computing between 1996 and 2003, the warrant-issuing judge could have = reasonably=20 inferred that Sveum may have been using a computer in connection with = stalking=20 Johnson in 2003 even if he had not used a computer to stalk Johnson in=20 1996. See = State v.=20 Benoit, 83 Wis. 2d 389, 399, 265 N.W.2d 298 = (1978)=20 (warrant judge may draw reasonable inferences from the evidence = presented in the=20 affidavit).

2. = Particularity

=B639 Sveum = argues that=20 the warrant failed to describe the items sought with sufficient=20 particularity. Under the = Fourth=20 Amendment, a warrant must =93particularly describ[e] the place to be = searched, and=20 the persons or things to be seized.=94 =20 Our supreme court has recognized that, in practice, this means = that a=20 warrant should describe items to be seized =93with as much particularity = and=20 specificity as the circumstances and the nature of activity under = investigation=20 permit[].=94 = See=20 State v.=20 Petrone, 161 Wis. 2d 530, 541, 468 N.W.2d 676 = (1991).

=B640 = Sveum=92s=20 particularity argument is that the many items authorized for seizure = were so=20 =93non-specific=94 that the warrant was an invalid general warrant. Police were authorized to = seize phone=20 bills, journals, calendars, logs, computers and devices related to = computers,=20 cameras and film, binoculars, flashlights, ski masks, audio and/or video = recording equipment in any format, and evidence that might identify the=20 residents of the searched dwelling. =20 Sveum also argues that the warrant lacked probable cause to seize = some of=20 the types of items identified in the warrant because he and his mother = occupied=20 the residence and the warrant lacked objective standards by which the = executing=20 officers could differentiate items his mother owned. We reject Sveum=92s = arguments. We perceive no reason, at = least in this=20 case, why guidelines would have been helpful or necessary. Tellingly, Sveum does not = suggest what=20 sorts of ownership guidelines would have been required to satisfy his = view of=20 the particularity requirement. = We=20 conclude that the warrant described the items to be seized with as much=20 particularity and specificity as the circumstances and the nature of = Sveum=92s=20 alleged stalking activity permitted.

=B641 = Furthermore, the=20 two cases on which Sveum places primary reliance actually cut against = him. In People v. Prall, 145 N.E. = 610=20 (Ill. 1924),=20 the authorities could have, but did not, describe the stolen property = sought=20 with precision by reference to serial numbers. See id. at 612. No similar identifying = information could=20 have assisted in limiting the seizures here.

=B642 = Sveum=92s reliance=20 on United States v. Klein, = 565 F.2d 183=20 (1st Cir. 1977), is similarly misplaced. =20 Klein involved whether the = description, =93pirate reproduction,=94 sufficiently informed the = officers executing=20 a warrant how to distinguish between pirated and non-pirated = merchandise. See id. at 184-87. But that case makes plain the = court=92s=20 view that differentiating between the two types of merchandise was a = technical=20 endeavor based on criteria that would not generally have been known to = the=20 police officers executing the warrant. =20 See id. at 186 & n.5, = 188-89.[9]

D. Evidence Of Prior Stalking=20 Conviction

=B643 Sveum = was=20 convicted of aggravated stalking based on his 1996 stalking conviction. = Proof of this particular = aggravated=20 stalking crime requires proof of a previous conviction for a violent = crime or a=20 stalking crime involving the same victim pursuant to Wis. Stat. = =A7 940.32(3)(b). Sveum argues that the circuit = court erred=20 by admitting evidence of his prior stalking conviction after he had = agreed to=20 stipulate to the conviction. = The=20 legal basis for Sveum=92s argument is difficult to discern, but he = relies on State v. Alexander, 214 = Wis. 2d 628,=20 571 N.W.2d 662 (1997), a case holding that a defendant=92s prior drunk = driving=20 convictions should not have gone to the jury, even though proof of the = prior=20 convictions was necessary to prove the drunk driving charge at issue in = that=20 case. Whatever persuasive = value Alexander may have had in = a stalking=20 case was put to rest in State v. Warbelton, 2009 = WI 6, =B640,=20 __ Wis. 2d __, 759 N.W.2d 557. = In=20 Warbelton, also a stalking = case, the=20 court expressly declined to apply Alexander and held that Alexander applies only to = drunk=20 driving prosecutions. Warbelton, 2009 WI 6, = =B6=B63, 46,=20 61. We are bound by Warbelton.

E. Ineffective Assistance Of = Trial=20 Counsel

=B644 Sveum = argues that=20 he received ineffective assistance of trial counsel in several = respects. The two-pronged deficient=20 performance/prejudice test we apply to such claims is well established = and we do=20 not repeat it in further detail here. We address each of Sveum=92s = ineffective=20 assistance claims in the sections that follow.

1. Jury Selection

=B645 Sveum = argues that=20 counsel was ineffective during jury selection by failing to ask = potential jurors=20 whether knowledge of Sveum=92s prior conviction for stalking Johnson = would prevent=20 them from being fair and impartial. =20 It appears that Sveum has not demonstrated either deficient = performance=20 or prejudice, but we will limit our discussion to his failure to show=20 prejudice.

=B646 = Sveum=92s prejudice=20 argument consists only of the speculative assertion that =93due to = counsel=92s=20 deficiency, there is no = assurance=20 that Sveum=92s =85 right to an impartial jury was honored=94 (emphasis = added). In the face of the same = argument in the=20 context of a sexual assault charge, we explained that the defendant = =93needed to=20 show that if his trial counsel had asked more or better questions, those = questions would have resulted in the discovery of bias on the part of at = least=20 one of the jurors who actually decided his case.=94 State v. Koller, 2001 WI = App 253,=20 =B6=B611-16, 248 Wis. 2d 259, 635 N.W.2d 838. As in Koller, Sveum makes no = such=20 showing.

2. Evidence Of Pending=20 Appeal

=B647 At the = time of=20 Sveum=92s trial in this case in 2006, an appeal from a denial of a writ = of habeas=20 corpus attacking his 1996 conviction was pending. Sveum points to language in = Wis. Stat. =A7 906.09(5) = (2005-06),=20 which provides that =93[e]vidence of the pendency of an appeal is = admissible,=94 and=20 argues that his trial counsel was ineffective because counsel failed to=20 introduce evidence of his pending appeal.

=B648 The = State=20 responds that because the pending appeal was not a direct appeal but a=20 collateral challenge after Sveum=92s direct appeal failed, the pending = appeal was=20 not an =93appeal=94 within the meaning of Wis. Stat. = =A7 906.09(5). We need not address this = argument=20 because, regardless of the proper interpretation of the statute, Sveum = has not=20 demonstrated deficient performance or prejudice. We agree with the State=92s = alternative=20 argument that it would have been a reasonable strategic choice by = counsel not to=20 introduce evidence of the pending challenge to Sveum=92s 1996 conviction = because=20 the prosecutor would have countered with damaging proof that Sveum=92s = direct=20 appeal from the 1996 conviction had failed.

3. Cross-Examination Of The = Alleged=20 Stalking Victim

=B649 At = trial,=20 Johnson, the stalking victim, provided strong testimony against Sveum, = such as=20 her assertion that, during one encounter in 1994, Sveum grabbed her and = told her=20 that one day when she came home he would be hiding in the bushes and = would blow=20 her head off. Sveum = argues that it=20 was, therefore, critical to impeach Johnson=92s credibility and that his = counsel=20 rendered ineffective assistance when counsel failed to use information = Sveum=20 provided to cross-examine Johnson. =20 For example, Sveum says he advised his counsel about police = reports=20 proving that Johnson had voluntary contacts with him after the alleged = threat,=20 and that counsel failed to use this information to impeach Johnson.

=B650 We have = examined=20 each cross-examination failure Sveum alleges, and conclude that he has = failed to=20 show ineffective assistance. = For=20 example, we agree that if Johnson had voluntary contact with Sveum after = the=20 alleged death threat, such contact might lead a jury to think it less = likely=20 that the threat occurred. Sveum=20 cites State v. Thiel, 2003 WI = 111, =B664,=20 264 Wis. 2d=20 571, 665 N.W.2d 305, to support this common-sense observation. But, just as the Thiel court concluded that = the=20 failure to use such information to impeach the victim, standing alone, = did not=20 undermine the court=92s confidence in the outcome, see id., =B681, = we similarly=20 conclude that the failure does not undermine our confidence in the = jury=92s=20 verdict here.

=B651 We = agree with the=20 circuit court that, given the long history of Sveum=92s stalking conduct = toward=20 Johnson, attempts to impeach Johnson as Sveum suggests could easily have = backfired. Moreover, much = of the=20 information Sveum relies on could have been readily explainable, and = none of it=20 would have been likely to have destroyed Johnson=92s credibility or made = her seem=20 less credible than Sveum. = Sveum=20 chose not to testify and, even assuming he had, it strains credulity to = think=20 the jury would have found him more credible than Johnson. The evidence at trial, which = included=20 Sveum=92s sister=92s testimony and correspondence between Sveum and his = sister,=20 showed that Sveum was highly deceptive and manipulative. Accordingly, Sveum has not = shown=20 deficient performance or prejudice based on counsel=92s failure to = cross-examine=20 Johnson with the information identified.

4. Failure To Object During = Sveum=92s=20 Sister=92s Testimony

=B652 Under=20 cross-examination, Sveum=92s counsel elicited testimony from Sveum=92s = sister,=20 Renee, that she knew Sveum well and would not have helped Sveum if she = thought=20 he would harm Johnson. On = redirect,=20 the State asked Renee if she knew that Sveum had threatened to blow = Johnson=92s=20 head off, and Renee replied, =93no.=94 =20 Sveum argues that, because Renee was the first witness to testify = and=20 Johnson had not yet testified about Sveum=92s threat, counsel was = ineffective by=20 failing to object for lack of foundation. =20 This argument is meritless. =20 Although it appears to be true that the question lacked a = foundation when=20 asked because Johnson had yet to testify, we agree with the State that = the same=20 question could have been posed to Sveum=92s sister either by recalling = her after=20 Johnson testified or by permitting the question in hypothetical form = because it=20 was known that Johnson would testify about the death threat.

5. Failure To Request Limiting = Instruction=20 On Other Acts Evidence

=B653 The = prosecutor=20 presented evidence of Sveum=92s 1996 conviction for stalking Johnson and = Sveum=92s=20 behavior underlying that conviction. =20 This evidence included Johnson=92s testimony that, among other = things,=20 Sveum went into Johnson=92s car and removed items, had a key made when = Johnson got=20 a different car, and left phone messages saying that Johnson would =93be = sorry=94 if=20 she did not pick up the phone. =20 Sveum asserts that this was =93other acts=94 evidence and that = his counsel=20 should have requested a limiting instruction explaining to the jury that = this=20 evidence could not be used to infer that he had a propensity to commit = this type=20 of crime.

=B654 Sveum = does not=20 explain why a limiting instruction would likely have made a difference = in the=20 verdict in light of the types of concerns associated with other acts=20 evidence. Rather, his = argument=20 seems to be that counsel=92s failure to request a limiting instruction = was per=20 se deficient performance and resulted in per se prejudice. We disagree.

=B655 Wisconsin Stat. = =A7 901.06 (2005-06)=20 provides: =93When = evidence which is=20 admissible as to one party or for one purpose but not admissible as to = another=20 party or for another purpose is admitted, the judge, upon request, shall = restrict the evidence to its proper scope and instruct the jury=20 accordingly.=94 Thus, = this statute=20 requires an instruction when one is requested. The logical corollary is that = an=20 instruction is not required every time evidence is admitted for one = purpose, but=20 is not admissible for another, and, therefore, it is not per se = deficient=20 performance to fail to request an instruction.

=B656 Sveum = also=20 asserts that counsel=92s failure to request a limiting instruction = implicates=20 double jeopardy, the statute of limitations, due process, and equal=20 protection. We agree with = the State=20 that these arguments are insufficiently developed and, therefore, = address them=20 no further. = See=20 State v.=20 Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 = (Ct. App.=20 1992) (we need not consider arguments that are inadequately = briefed).

F. Erroneous Jury=20 Instruction

=B657 The = parties agree=20 that the jury instruction on one element of stalking, under Wis. Stat. = =A7 940.32(3)(b), was=20 partially incorrect. As = to the=20 =93course of conduct=94 element, the jury was instructed that the acts = constituting=20 a =93course of conduct=94 are limited to:

1) =20 =93maintaining visual or physical proximity to Jamie Johnson,=94 = or

2) =20 =93contacting Jamie Johnson by telephone or causing Jamie = Johnson=92s=20 telephone or any other person=92s telephone to ring repeatedly or = continuously=20 regardless of whether a conversation ensues,=94 or

3) =20 =93causing any person to engage in either of the acts described=20 [above].=94

The = causing-any-person part of=20 this instruction was incorrect because of its reference to the two acts=20 described in items 1) and 2). = The=20 =93causing any person=94 alternative did not, at the relevant time, = include causing=20 these two acts. See =A7 940.32(1)(a) = (2001-02). Thus, the jury was erroneously = told that=20 the =93course of conduct=94 element could be met if Sveum caused his sister Renee to = engage in=20 either of these acts.[10]

=B658 Sveum = correctly=20 argues that this type of instructional error was cause for reversal in = United=20 States Supreme Court cases as recent as Boyde v. California, 494 = U.S. 370=20 (1990). Since Boyde, however, the Court = has=20 concluded that harmless error analysis applies to such error. Hedgpeth v. Pulido, 129 = S. Ct. 530, 532 (2008). We agree with the State that = the error=20 here was harmless.

=B659 For = purposes of=20 our harmless error discussion, we will assume without deciding that = Sveum is=20 correct that the proper harmless error test is the one set forth in State v. Dyess, 124 Wis. = 2d 525, 370=20 N.W.2d 222 (1985). Under = Dyess, the State must = establish that=20 there is =93no reasonable possibility that the error contributed to the=20 conviction.=94 Id. at=20 543. Sveum argues that = the test is=20 not met here because it is impossible to know whether one or more of the = jurors=20 voted to convict him relying solely on evidence that he caused his = sister to=20 engage in stalking conduct. = We are=20 confident that did not occur.

=B660 The = jury heard=20 evidence that Sveum=92s sister maintained proximity to Johnson or made = prohibited=20 phone contacts to Johnson at Sveum=92s behest while he was in = prison. But the jury also heard = essentially=20 uncontested evidence that, soon after Sveum was released from electronic = monitoring, he began making hang-up calls to Johnson, often immediately = after=20 she arrived home. This = evidence=20 demonstrated not only that Sveum was engaging in prohibited phone = contacts, but=20 that he was also maintaining visual or physical proximity to Johnson on = a=20 recurring basis. Moreover, with=20 exceptions not relevant here, Sveum=92s trial counsel did not attempt to = persuade=20 the jury that Sveum did not engage in the conduct alleged after he was = released=20 from prison. Rather, = counsel=20 disputed other elements. = Counsel=20 candidly stated in closing argument: =20 =93[Y]ou=92re asked to take a course of conduct which obviously is present and = still=20 decide if what happened here is stalking.=94 =20 (Emphasis added.) = Counsel=20 continued: =93The course = of conduct=20 is present but you=92re being asked to decide if the other elements of = the crime=20 are also present =85.=94 =

=B661 We = perceive no=20 reason why any juror would have rejected evidence of Sveum=92s = post-incarceration=20 behavior and relied instead only on his sister=92s conduct. Accordingly, we conclude that = the=20 instructional error was harmless.[11]

Conclusion

=B662 For all = of the=20 reasons stated above, we affirm the judgment of conviction and the order = denying=20 postconviction relief.

=20 By the = Court.=97Judgment and=20 order affirmed.

=20 Recommended for publication in the official = reports.