¶ 66. {concurring). I agree with the majority opinion that a defendant's challenge to the sufficiency of the evidence need not be raised during trial to preserve the issue for appeal as a matter of right. I also agree that the evidence in this case was sufficient to support the jury's verdict. As I did in State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110, I write separately because of the spirited discussions of statutory interpretation set forth in the majority and in the concurrence of Justice Sykes. Although I again commend both authors of the discussion, I ultimately join neither.
¶ 67. Based on my observations of the past, the new "bright line" rules of statutory interpretation recently set forth by the majority in Kalal will be often mouthed but not always applied. Earlier this term in Keup v. DHFS, 2004 WI 16, ¶ 17, 269 Wis. 2d 59, 675 N.W.2d 755, the same majority purported to clearly and concisely set forth the "bright line" rules of statutory interpretation which are substantially different from *33the bright line rules of the Kalal majority.1 The now-defunct bright line rules of statutory interpretation were honored by the Keup majority as much in the breach as in the observance. Although the ink is hardly dry on the Keup bright line rules of statutory interpretation, they are now branded as
¶ 68. This case presents yet another opportunity for part of the court to engage in vigorous discussions of statutory interpretation. I will not add to the mass of our jurisprudence by continuing to write future concurrences on what I believe will be a continuing discussion. Instead, I invite the reader of our opinions to observe what I am confident will be the well intentioned, but nevertheless early and often misapplication by the Kalal majority of the "new" bright line rules of statutory interpretation. For the above reasons, I respectfully concur.
DAVID T. PROSSER, J.¶ 69. {concurring). As a general rule, issues not presented to the circuit court will not be considered for the first time on appeal. State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501 (1997). *34This general rule of judicial administration makes good sense, and normally it must be honored to preserve appellate deference to circuit courts.
¶ 70. The problem is that general rules frequently have exceptions. At the moment, sufficiency of the evidence appears to be one of the exceptions to the general rule of waiver.
¶ 71. This concurrence will attempt to trace the source of this exception and explain my separate vote to affirm.1
¶ 72. In State v. Van Beek, 31 Wis. 2d 51, 141 N.W.2d 873 (1966), the defendant claimed that the evidence adduced at his trial was not sufficient to prove his guilt beyond a reasonable doubt. He neglected, however, to move for a new trial or to set aside the jury's verdict. On appeal, this court refused to evaluate the sufficiency of the evidence, saying:
The failure to present a motion for a new trial deprived the trial court of the opportunity to examine the very question which is now presented upon appeal. At least four times during the past six years this court has asserted that such an omission barred an appellant from the right to have the evidence evaluated in this court [citing cases].... [W]e find no factors in the case at bar which prompt us to relieve this appellant from the quicksand in which he is trapped.
*35Id. at 52-53.
¶ 73. A month later, in State v. Thompson, 31 Wis. 2d 365, 367,142 N.W.2d 779 (1966), the court reiterated the point, saying:
In effect, this appeal is a challenge to the sufficiency of the evidence supporting the conviction.... The appellant made no motion in the trial court for a new trial, nor did he move to have the verdict set aside on the grounds of insufficient evidence. Accordingly, Mr. Thompson does not have the right to have the evidence reviewed upon appeal.
See also State v. Escobedo, 44 Wis. 2d 85, 89-90, 170 N.W.2d 709 (1969); State v. Schneidewind, 47 Wis. 2d 110, 119-20, 176 N.W.2d 303 (1970); Davis v. State, 49 Wis. 2d 180, 184, 181 N.W.2d 346 (1970); State v. Charette, 51 Wis. 2d 531, 536, 187 N.W.2d 203 (1971).
¶ 74. In 1977, as part of a comprehensive revision of appellate procedure, the legislature approved a statute on "Appeals and post-conviction relief in criminal, juvenile, youthful offender and mental commitment cases." Wis. Stat. § 974.02 (1977-78). As the majority opinion points out, § 974.02(2) originally read: "A motion challenging the sufficiency of the evidence is not necessary to raise on appeal the sufficiency of the evidence." Majority op., ¶ 26. This subsection did not stand in isolation, however. Subsection (1) stated that "an appeal to the court of appeals ... or a motion for post-conviction relief in a felony case must be taken in the time and manner provided in s. 809.40." The reference to "motion for post-conviction relief' in subsection (1) implies that subsection (2) should be read as follows: "A [post-conviction] motion challenging the sufficiency of the evidence is not necessary to raise on appeal sufficiency of the evidence." (Emphasis added.) It would have been quite odd to change a long-*36established rule of trial practice in a section of the statutes dealing with postconviction procedure.
¶ 75. In 1978, in their manual on Wisconsin Appellate Practice, Robert J. Martineau and Richard R. Malmgren described the revised statute:
§ 2706. Post-Conviction Motions
A. The Necessity of Filing Post-Conviction Motions
The procedure for filing direct post-conviction motions in criminal cases is substantially changed. Under the former procedure, a defendant in a jury trial case was required to file a motion for a new trial in order to raise any issue on appeal as a matter of right. Sanford v. State, 76 Wis. 2d 72, 250 N.W.2d 348 (1977). This prior procedure required post-conviction counsel to file usually futile motions with the trial court asking it to review issues that were often raised at several earlier points in the trial. The Supreme Court was particularly reluctant to review a claimed insufficiency of the evidence without a motion based on such assertion. State v. Charette, 51 Wis. 2d 531, 187 N.W.2d 203 (1971). Indeed, even in bench trials the Supreme Court recommended that motions be filed with the trial court asserting lack of sufficient evidence, notwithstanding the specific provision of repealed Section 974.02(5) making such motions unnecessary. Gilbertson v. State, 69 Wis. 2d 587, 230 N.W.2d 874 (1975).
Section 974.02(2) specifically provides that a motion challenging the sufficiency of the evidence is not necessary to raise on appeal the sufficiency of the evidence. In addition, under Rule 809.30[(l)](f) all post-conviction motions become optional. This is not to say that a defendant after conviction can raise any issue on appeal. The law in Wisconsin clearly requires that in order for an issue to be properly raised on appeal, it often has to be raised at a more preliminary point in the proceedings, such as in a motion to *37dismiss .. . The primary change in the law, as reflected in Rule 809.30[(l)](f) and the Judicial Council Committee's Note, is that the errors need not be reasserted after conviction if they have been raised at the appropriate point in the earlier proceedings.
Robert J. Martineau & Richard R. Malxngren, Wisconsin Appellate Practice 172-73 (1978).
¶ 76. This court took issue with part of the above-quoted interpretation in State v. Monje, 109 Wis. 2d 138, 325 N.W.2d 695 (1982). Discussing § 974.02(2), the court stated:
It is only under sec. 974.02(2), Stats. 1979-80 that authorization is given to take an appeal without a postconviction motion first being made.... We construe this rule as being consistent with prior case law and hold that for issues on appeal to be considered as a matter of right, postconviction motions must be made except in challenges to the sufficiency of the evidence under sec. 974.02(2).
Id. at 153a.
¶ 77. In 1983, the legislature responded to the Monje decision by revising § 974.02(2). It now reads: "An appellant is not required to file a postconviction motion in the trial court prior to an appeal if the grounds are sufficiency of the evidence or issues previously raised." This subsection plainly refers to postcon-viction motions. Moreover, the analysis accompanying the bill states: "This bill does not modify the waiver doctrine, requiring timely objection or motion to preserve alleged error." See Majority op., ¶ 36.
¶ 78. During the time that Wisconsin was refining its postconviction procedure, the United States Supreme Court decided Burks v. United States, 437 U.S. 1 (1978). In this case, the Court held that double jeopardy *38precludes a second trial once a reviewing court has found the evidence insufficient to sustain the jury's verdict of guilty.
¶ 79. The year after Burks, this court stated in Thiesen v. State, 86 Wis. 2d 562, 564, 273 N.W.2d 314 (1979) that: "This court has frequently said that if the alleged error is one which the trial court could have corrected by granting a new trial, a motion for a new trial is necessary before the claimed error will be reviewed by this court as a matter of right" (citing cases). This statement was repeated in Beamon v. State, 93 Wis. 2d 215, 218, 286 N.W.2d 592 (1980), with the supplementary comment that: "This rule has been applied to claims of insufficient evidence." Beamon, 93 Wis. 2d at 218.
¶ 80. There is an obvious inconsistency in this pronouncement. In view of the Burks decision, a circuit court may not grant the state a new trial when the court concludes there is insufficient evidence to convict. There may be times when the trial court can permit the state to reopen the case to introduce additional evidence after the state has rested. Grover v. State, 61 Wis. 2d 282, 283, 212 N.W.2d 117 (1973); Wis. Stat. § 972.10(3). However, if the case has reached the point of no return when the evidentiary record is closed, the case must be dismissed. "[T]he only remedy available to the court is to order a judgment of acquittal." State v. Ivy, 119 Wis. 2d 591, 608, 350 N.W.2d 622 (1984).
¶ 81. Put another way, when a defendant believes the state has failed to produce sufficient evidence to convict, the defendant should move to dismiss. A defendant should not move for a new trial on these grounds, either before conviction or after conviction, because a new trial based on insufficiency of the evidence would constitute double jeopardy.
*39¶ 82. The issue for us is whether a defendant is required to move to dismiss, or make an equivalent motion, before the case goes to the fact-finder in order to preserve the issue of evidence sufficiency for appeal as of right.
¶ 83. Justice Sykes contends that § 974.06 is a postconviction statute that does not excuse a defendant's failure to preserve the issue of evidence sufficiency during the trial, at some point before conviction. There is compelling evidence to support this view.
¶ 84. Nonetheless, two points must be made. First, because the "waiver" rule is a rule of judicial administration as opposed to an inflexible prohibition, it is often disregarded by appellate courts. The reasons for this may be found in the policy discussions in the majority opinion and in the concurring opinion of Justice Roggensack. The fact that the waiver rule is not consistently applied breeds an expectation on the part of some defendants that it will not be applied to them.
¶ 85. Second, some defendants see the Gomez case as establishing an exception to the waiver rule. State v. Gomez, 179 Wis. 2d 400, 404, 507 N.W.2d 378 (Ct. App. 1993). The Gomez decision interpreting § 974.02 is quite imprecise but it has been relied upon by defendants for more than a decade.2
*40¶ 86. In his valuable treatise on appellate practice, Michael S. Heffernan writes:
*41One of the major limitations on review is the general refusal of appellate courts to consider issues raised for the first time on appeal. . . . Sections 974.02(2) and 805.17(4) provide that sufficiency of the evidence may be raised for the first time on appeal from criminal cases and trials to the court.
Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin III. [§ 3.3], Trial Record - Avoiding Waiver [3.4], Raising Issues in the Trial Court. (3d ed. 2002).
¶ 87. It is not certain whether Heffernan is asserting that a criminal defendant has no obligation to preserve an objection to the sufficiency of the evidence during trial in order to appeal on this issue as of right, but his comment can be read that way.
¶ 88. In light of both precedent and scholarly commentary, it is difficult for me to set out and enforce a strict waiver rule in this situation.
¶ 89. Although Gomez appears to be questionable, I think the better course for now is to stick with its perceived interpretation of the statute, as a matter of policy, with the hope that the statute will be clarified by the legislature or by this court through judicial rule-making. Creating clear rules governing when and how a defendant should challenge the sufficiency of the evidence in the trial court ought to he a high priority, because the result of the majority opinion is that the state can and will be sandbagged by defendants who *42remain silent until it is too late for the court to react. I cannot join the majority opinion because it has the effect of turning "quicksand" into solid rock. It is now urgent for courts and prosecutors to develop techniques to force a defendant's hand, so that a defendant cannot euchre the court into making an avoidable and irrevocable error.
¶ 90. In any event, I agree with the court of appeals that the defendant's conviction must be affirmed because the evidence was sufficient to support the jury's verdict.
This concurrence will refer to the opinion of the Chief Justice as the "majority" opinion. Three members of the court —Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks — agree with the statutory interpretation in the opinion. The writer reluctantly adopts the interpretation of the statute set out in State v. Gomez, 179 Wis. 2d 400, 404, 507 N.W.2d 378 (Ct. App. 1993). Because four members of the court reach the same result on the statute, the Chiefs opinion may be characterized as the majority opinion.
In State v. Gomez, 179 Wis. 2d 400, 404, 507 N.W.2d 378 (Ct. App. 1993), the defendant argued that there was insufficient evidence to convict him of child enticement. The court said:
Gomez did not file a postconviction motion but instead directly appealed to this court.
Gomez challenges the sufficiency of the evidence to convict him of enticement of a child in violation of sec. 948.07, Stats. The State *40argues that Gomez waived the argument because he did not present this issue to the trial court before, during or after the trial. Gomez correctly asserts that his argument is based upon the sufficiency of the evidence to convict, which under sec. 974.02(2) Stats., does not require a prior postconviction motion. Therefore, the issue is preserved for appeal.
Gomez, 179 Wis. 2d at 404.
In its appeal brief, the State said: "The appellant's challenge to the sufficiency of the evidence to convict was rejected by the trial court (19:40-41). The appellant failed to present any challenge to the applicability of sec. 948.07, Stats., to the enticement of a child into her own bedroom."
It is the appellant's position that sec. 948.07, Stats., as a matter of law was not intended to apply to the fact situation presented by this case....
The appellant never presented this challenge to the applicability of sec. 948.07, Stats., at any point before, during or after trial. He has, consequently, failed to properly preserve this challenge for appellate review.
-To properly preserve his objection, the appellant must at least present the claim in a postconviction motion, if it was not raised earlier. Sec. 974.02(2)... .
The appellant's failure to properly preserve this issue of statutory construction at the trial court level is fatal to his claim on appeal.
In his reply brief, the defendant said:
The state ... asks this court to refuse to address an issue based on some waiver theory.... Gomez has argued that his conduct, assuming the facts alleged were true, did not meet the legal definition of the crime ... That is just another way of saying that the state failed to prove any conduct by Gomez that would allow him to be found guilty of violating the crime defined by § 948.07. It is a sufficiency of evidence argument, and § 974.02(2) plainly states that a postconviction motion in the trial court is not necessary in such a case. (Emphasis added)
*41The Gomez case did not say explicitly that a defendant is not required to make a timely objection as to evidence sufficiency at some point during trial in order to preserve that issue as of right on appeal. Without digging deeper into the record, it appears as though the court of appeals permitted a general challenge to the sufficiency of the evidence to suffice for a narrower challenge to the state's proof.