Paternity of J.S.C., In re

• Decision Date: 19 November 1986
• Docket Number: No. 85-2343,85-2343
• Citation: 135 Wis.2d 280,400 N.W.2d 48
• Parties: In re the PATERNITY OF J.S.C. B.A.C., Petitioner-Respondent, v. T.L.G., Respondent-Appellant.
• Court: Wisconsin Court of Appeals

Page 48

400 N.W.2d 48

135 Wis.2d 280

In re the PATERNITY OF J.S.C.

B.A.C., Petitioner-Respondent, v. T.L.G., Respondent-Appellant.

No. 85-2343.

Court of Appeals of Wisconsin.

Argued Oct. 2, 1986.

Opinion Released Nov. 19, 1986.

Opinion Filed Nov. 19, 1986.

Review Denied.

Michael J. Gross of Hippenmeyer, Reilly, Bode & Gross, S.C., Waukesha, for respondent-appellant.

Steven Schmitz, Asst. Corp. Counsel, Waukesha, for petitioner-respondent.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

NETTESHEIM, Judge.

T.L.G. appeals from a judgment declaring him the father of J.S.C. The issues are: (1) whether the evidence was sufficient to establish the conceptive period; (2) whether the blood tests were performed by the expert contemplated by sec. 767.48(1), Stats.; (3) whether the expert's testimony and report were properly authenticated by a sufficient chain of custody as to certain blood samples; (4) whether the issues for trial were properly bifurcated between the jury and the court; and (5) whether costs were properly assessed against T.L.G. We reject T.L.G.'s evidentiary arguments and find no abuse of discretion in the trial court's evidentiary rulings. We further

conclude that the issues were properly bifurcated for trial as between the jury and the court. Finally, we conclude that costs were properly[135 Wis.2d 284] assessed against T.L.G. Therefore, we affirm the judgment.

CONCEPTIVE PERIOD

At the time of birth, J.S.C. weighed only 5 pounds 5 1/2 ounces. Thus, the presumptive period of conception provided by sec. 891.395, Stats., where a child weighs 5 1/2 pounds or more at birth, does not apply in this case. ² Without this presumption, T.L.G. argues that the evidence is otherwise insufficient to establish a conceptive period. We disagree.

Proof of the conceptive period of the child is an essential element of a paternity case. State ex rel. Skowronski v. Mjelde, 112 Wis.2d 110, 116, 332 N.W.2d 289, 292 (1983). The conceptive period in the case of a child whose weight at birth is in excess of 5 1/2 pounds is presumptively established by statute. Id. at 115, 332 N.W.2d at 291. If the child is not a full term child, the conceptive period must be established by other competent evidence; however, it is not essential that the exact date of conception be proven. Id. at 115, 332 N.W.2d at 291-92.

T.L.G. relies heavily on B.A.C.'s testimony that she did not know how to determine a conceptive period and that she did not know the conceptive period of the child. Standing alone, this evidence would be insufficient to establish a conceptive period. See id. at 117, 332 N.W.2d at 292. However, other evidence in this case presents a circumstantial basis for determination of the conceptive period. B.A.C. testified that she experienced her last menstrual period prior to the birth of J.S.C. before she met T.L.G. in November, 1981. Frequent acts of sexual intercourse occurred between T.L.G. and B.A.C. during November and December, 1981. By December 24, 1981, B.A.C. testified that she was "a couple of weeks" late with her menstrual period. She further testified that she did not have sexual relations with any other men between the time she met T.L.G. and the birth of the child.

We must view the evidence in the light most favorable to the verdict and we must affirm if there is any credible evidence on which the jury could have based its decision. Roach v. Keane, 73 Wis.2d 524, 536, 243 N.W.2d 508, 515 (1976). The testimony recited above, viewed in this light, forms a credible basis upon which a jury could make a circumstantial determination that the conceptive period occurred during the period of sexual activity between B.A.C. and T.L.G.

BLOOD TESTS

Experts

T.L.G. next contends that the expert contemplated by sec. 767.48(1), Stats., was not the expert presented by B.A.C. in this case.

Section 767.48(1), Stats., in relevant part, provides:

The court ... may, and upon request of a party shall, require the child, mother, [or] alleged father ... to submit to blood tests. The tests shall be performed by an expert qualified as an examiner of genetic markers present on blood cells and components, appointed by the court. A report completed and certified by the court-appointed expert stating blood test results and the statistical probability of the alleged father's paternity based upon the blood tests is admissible as evidence without expert testimony....

Dr. Jerome Gottschall, an expert in examining genetic markers, was the expert appointed by the trial court in this case. B.A.C. first contends that T.L.G. has waived the right to raise this issue upon appeal because he failed to object to Dr. Gottschall's appointment. T.L.G.'s objection, however, is not to Dr. Gottschall's appointment and qualifications. Rather, T.L.G.'s claim is that other technicians who were involved in the testing process were not shown to be experts in examining genetic markers as required by the statute. As such, T.L.G. argues that B.A.C. established the qualifications of the wrong expert. This was the essence of the objection raised by T.L.G. at trial and we conclude the issue is properly preserved for appellate review.

The construction of a statute presents a question of law which we decide de novo and without deference to the trial court's reasoning. Kraemer Bros., Inc. v. Pulaski State Bank, 130 Wis.2d 194, 197, 387 N.W.2d 94, 95 (Ct.App.1986). In construing a statute, we will not resort to judicial rules of interpretation and construction unless the language of the statute itself is ambiguous; a statute is ambiguous when it is capable of being construed in two different ways by reasonably well-informed persons. Id. The entire section of a statute and related sections are to be considered in its construction and interpretation. State v. Barnes, 127 Wis.2d 34, 37, 377 N.W.2d 624, 625 (Ct.App.1985).

While certain language of sec. 767.48(1), Stats., read in isolation, might suggest that technicians who assist in the testing process are the experts contemplated by the statute, a reading of the entire statute satisfies us that one such as Dr. Gottschall, an expert in genetic markers, is the expert which the statute truly requires. We conclude the statute is clear in this regard.

If a report as to the expert's findings is to be admitted into evidence without expert testimony, the statute provides that the expert complete and certify such report "stating blood test results and the statistical probability of the alleged father's paternity." The preparer of the report must obviously hold qualifications necessary to state such results. Under the statute, this requires expertise in the field of examining genetic markers. From this it follows that when the statute speaks of the expert performing the tests, the legislature contemplated the same procedures which led to the report, to wit, stating the blood test results and stating the statistical probability of paternity--not those tasks performed by technicians who merely draw the blood samples or who perform other laboratory duties short of the highly sophisticated test performed by an expert in examining genetic markers. The statute, read in its entirety, does not contemplate or require technicians who assist in the testing process to be experts in examining genetic markers.

Moreover, we are given no reason, and we can fathom none, as to why the legislature would require such expertise of technicians who assist in the administration of blood tests or who otherwise perform laboratory tasks incidental to the ultimate exercise of examining and interpreting genetic markers. To require such unnecessary sophistication on the part of such technicians or assistants flies in the face of reason and logic. Such interpretations of statutes are to be avoided. Barnes, 127 Wis.2d at 39, 377 N.W.2d at 626.

Chain of Custody

T.L.G. next contends that the admission into evidence of Dr. Gottschall's testimony was error because the requisite chain of custody with respect to certain of the blood samples was not established.

B.A.C. initially counters this argument by contending that chain of custody considerations do not apply because only expert testimony and the attendant report--not the blood samples--were received into evidence. We disagree. We do not see the form of the evidence received as controlling the resolution of this issue. The relevancy of Dr. Gottschall's testimony and report must necessarily rest upon the premise that the samples tested were those of the principals in this case. Nor does the fact that secs. 885.23 and 767.48(1), Stats., mandate the receipt into evidence of the expert's report eliminate the necessary evidentiary underpinning for establishing the relevancy of such evidence.

State v. Disch, 119 Wis.2d 461, 351 N.W.2d 492 (1984), cited by B.A.C. as support for her position, is actually to the contrary. Although Disch does state that "[u]nder the statutes, the blood test derived from a properly authenticated sample by legislative fiat is admissible. Sec. 885.235(1), Stats.," id. at 470, 351 N.W.2d at 497, the statute cited by the supreme court does not necessarily contemplate receipt of the blood sample into evidence--rather it contemplates receipt of the chemical analysis of such sample into evidence. Such evidence ordinarily assumes the form of testimony or a written report. Therefore, we conclude that the failure to offer the blood samples does not preclude application of chain of custody or authentication considerations.

B.A.C. also appears to argue that chain of custody and authentication are separate concepts governed by different rules for purposes of this discussion. Disch again is clearly to the contrary: "[T]he defendant may challenge the test results on the basis of the lack of the authentication of a test sample, i.e., the chain of custody." Id. at 471, 351 N.W.2d at 497 (emphasis added).

We therefore conclude that a chain of custody, or authentication, must be...