¶ 37. {concurring in part; dissenting in part). The majority opinion relates the sole appellate issue as "whether the promissory note McGuire signed is a 'security' within the meaning of Wis. Stat. § 551.02(13)(a)." Majority, ¶ 8. Because Kevin E McGuire's conviction for the fraudulent sale of a security is based upon the trial court's finding that the "security" is an "investment contract" rather than a "note,"1 I cannot join in the majority analysis. The first *714element of fraudulent sale of a security is proof "that the item [sold] was a security, as defined by Wisconsin law." Wis JI — Criminal 2904. The term "security" is defined in § 551.02(13)(a), and includes both a "note" and an "investment contract" as separate and distinct instruments. The trial court never found that the culprit security instrument was a "note" as defined in § 551.02(13)(a).
¶ 38. At the court trial the State argued that "this transaction created an investment contract" because McGuire had procured money from DeLuisa to use in his show car business. The State's securities law expert testified that this was a "classic case" of an "investment contract." The trial court found that this was "an investment in a business with the expectation of profit" and concluded that the "dealings between the parties resulted in an investment contract, which is a security."2 (Emphasis added.) The appropriate appellate issue, had McGuire raised it, is whether the trial court erroneously concluded that this transaction was an investment contract. Because McGuire never raised or argued this allegation of error, I concur that the judgment of conviction be affirmed.
¶ 39. While I agree with the ultimate disposition of this case, I cannot accept the methodology employed by the majority to arrive at that point. In Wisconsin the question of when a note is a security for purposes of prosecuting a violation of Wis. Stat. § 551.41(2) remains open. While the definition of a security in Wis. Stat. *715§ 551.01(13)(a) includes promissory notes, what is a security under Wisconsin law is often debatable and requires that a court frequently must interpret the law to determine whether a particular instrument is a security. State v. Mueller, 201 Wis. 2d 121, 147, 549 N.W.2d 455 (Ct. App. 1996).
¶ 40. The majority opinion spends considerable time and effort pointing out that the trial court addressed the "family resemblance test" factors set forth in Reves v. Ernst and Young, 494 U.S. 56 (1990). Reves provides a detailed analysis of the family resemblance test factors to determine whether a note is a security in a federal civil law context.3 See State v. Johnson, 2002 WI App 224, ¶ 12, 257 Wis. 2d 736, 652 N.W.2d 642. Reves establishes a rebuttable presumption that every note is a security in a federal civil action. Reves, 494 U.S. at 65, 67. However, the Reves test has never been reported in Wisconsin in the context of a criminal prosecution for fraud involving a "note."
¶ 41. In Johnson, the court acknowledged that Reves presented a test framework to determine whether a note is a security, and that the framework was "instructive" in determining whether the instrument at issue was a Wis. Stat. ch. 551 security. Johnson, 257 Wis 2d 736, ¶ 12. However, Johnson did not involve a note. Id. at ¶ 11, n.6. Johnson accommodated the Reves family resemblance test to debt instruments such as "debentures" and "promises to repay loans made at above market rates" as applied "to the facts in this case." Id. at ¶ 15. In Mueller the court expressly stated that the case had not been tried on the basis of the Reves test *716factors. Mueller, 201 Wis. 2d at 146-47. Neither Mueller nor Johnson are instructive.
¶ 42. Again, Reves establishes a rebuttable presumption that every note is a security in a federal civil action. In Wisconsin, presumptions in criminal cases are controlled by Wis. Stat. § 903.03 and statutory presumptions have only the effect of a permissible inference. See State v. Clark, 87 Wis. 2d 804, 814, 275 N.W.2d 715 (1979). In a criminal trial involving a recognized presumption a jury would have to be instructed that: (1) the law presumes the fact alleged; (2) the presumption is rebuttable; (3) the rebuttal may be "circumstantial" (direct or circumstantial evidence); and (4) the presumed fact and the basic facts must be proved by the criminal quantum of proof. Judicial Council Committee's Note, 1974, Wis. Stat. Ann. § 903.03 (West 2000). Where a note is alleged to be the security culprit in a Wis. Stat. ch. 551 securities fraud conviction, the issue of the application of the Reves civil presumption should be addressed in a criminal law context, and it was not so addressed here because the security is an investment contract.
¶ 43. Because the McGuire security is an investment contract rather than a note, the Reves test and its attending rebuttable presumption are not relevant. The trial court decision that the security was an investment contract precludes our review of whether the promissory note was also a covered security, regardless of McGuire's decision to raise and argue the issue. See Jenkins v. Sabourin, 104 Wis. 2d 309, 313-14, 311 N.W.2d 600 (1981). In effect, by addressing the academic issue of whether the McGuire promissory note is a covered security, we usurp the discretion and judgment of the trial court, and the function of the trial court in general, contrary to our supreme court's ex*717press caution that we refrain from doing so. See Barrera v. State, 99 Wis. 2d 269, 282, 298 N.W.2d 820 (1980).
¶ 44. In sum, because the majority opinion addresses an issue unrelated to McGuire's conviction, and because the opinion ventures into an area of law that has not previously been considered and decided in Wisconsin in a criminal prosecution, I cannot concur with the majority analysis and conclusion that the McGuire "note" is a Wis. Stat. ch. 551 "security." However, because McGuire does not challenge his conviction on the basis that the ch. 551 security interest violated was an investment contract, I would summarily dismiss his appeal and affirm the judgment of conviction.
McGuire presented the appellate issue by stating "the note here is not a 'security' within the meaning of [Wis. Stat.] § 551.02(13)(a)" and the State did not contest this statement of the issue. We are not bound by the issues as framed by the parties, see State v. Waste Management of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1977), nor should we be if the appellate issue lacks relevance.
An investment contract is "[a]ny investment in a common enterprise with the expectation of profit to be derived through the essential managerial efforts of someone other than the investor." Wis. Admin. Code § DFI-Sec. 1.02(6)(a) (Dec. 2004); see also Fore Way Express, Inc. v. Bast, 178 Wis. 2d 693, 712, 505 N.W.2d 408 (Ct. App. 1993).
The petitioners in Reves v. Ernst and Young, 494 U.S. 56 (1990), were awarded a $6.1 million civil judgment.