That is not correct. In Kemp v. State, 61 Wis. 2d 125, 137, 211 N.W.2d 793 (1973), this court stopped short of making that factual finding and merely remanded for a finding on that question to be made by a second trier of fact. Kemp, 61 Wis. 2d at 137 ("We believe the weight of the testimony is such that justice has probably miscarried and that it is probable a new trial will result in a contrary finding.") 43 Kemp, 61 Wis. 2d at 137. 44 Id. at 134. 45 Id 46 Id. at 137. 47 Where there is no identified error in the circuit court, a defendant will have a more difficult time showing reversal is warranted in the interest of justice. 48 Kemp, 61 Wis. 2d at 136. 49 Armstrong, 283 Wis. 2d 639, ¶ 114; Avery, 345 Wis. 2d 407, ¶ 38; Morden, 235 Wis. 2d 325, ¶ 87. 50 Avery, 345 Wis. 2d 407, ¶ 59 (<HOLDING>) 51 Id. 52 Sarinske, 91 Wis. 2d at 48. 53 State
holding that because plaintiff failed to assign error to the dismissal of one its claims that issue was not properly before this court holding that the relevant inquiry is not whether the court has discretion to facilitate notice but whether this is an appropriate case in which to exercise discretion holding a new constitutional challenge not raised in district court was not properly before court of appeals holding that the trial court on remand erred when it adopted a new theory of damages contrary to the order of the court of appeals holding that the court of appeals erroneously exercised its discretion when it failed to properly analyze whether this was an exceptional case that entitled avery to a new trial in the interest of justice