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COURT OF APPEALS DECISION DATED AND FILED November 13, 2013 Diane M. Fremgen Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
Cir. Ct. Nos. 2911TR4346 2011TR4347 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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City of Sheboygan, Plaintiff-Respondent, v. Jeffrey M. Halida, Defendant-Appellant. |
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APPEAL from a judgment of the circuit court for Sheboygan County: James J. bolgert, Judge. Affirmed.
¶1 BROWN, C.J.[1] Jeffrey Halida appeals convictions for driving while intoxicated and driving with a prohibited blood alcohol concentration. Halida contends that testimony regarding his use of prescription narcotics unfairly prejudiced him at trial. We affirm.
Facts
¶2 At approximately 1:50 am on October 9, 2011, Officer Andrew Kundinger was dispatched to the scene of a single vehicle accident in the city and county of Sheboygan. Upon arriving at the scene, Kundinger observed a motorcycle resting in the median of the road and the driver laying on the ground, apparently having collided with a light pole nearby. Kundinger approached the scene and noticed the driver was bleeding from the head. Kundinger advised the driver to remain still until an ambulance arrived. The driver identified himself as Jeffrey Halida.
¶3 At the scene, Kundinger recognized the odor of alcohol on Halida. Halida also admitted he had probably had too much to drink before being transported from the crash by ambulance. At the hospital, Kundinger again noticed a strong odor of alcohol on Halida. He also observed Halida’s eyes to be very bloodshot and glassy, which he believed to be indicative of intoxication. After Halida’s CAT scan was completed, Kundinger informed Halida that he was under arrest and asked if he would submit to a voluntary blood draw to test for alcohol. Halida agreed and stated that he “had really screwed up this time” and that he “was going to lose everything.” Kundinger testified that he had not performed a field sobriety test at the scene of the accident because he was concerned that Halida may have suffered a head injury.
¶4 After the blood sample was taken, Kundinger read Halida his Miranda[2] warnings, and proceeded to ask about his activities prior to the accident. Halida said he had been bar-hopping with friends from 1:00 p.m. until 1:25 a.m., i.e., for more than twelve hours and up until about a half hour before the accident. Pursuant to the Department of Transportation’s Alcohol Influence Report, Kundinger also asked Halida about his medical history, including if he was diabetic and if he was on any medication. Halida responded that he had a prescription for Oxycodone and had taken two pills earlier that day. Halida was released from the hospital later that night. The blood test later revealed Halida’s blood alcohol level to be .178.
¶5 The morning of trial, Halida moved to preclude any mention of the Oxycodone during the trial. He argued that mentioning that he had taken Oxycodone would prejudice the jury to speculate that he was under the influence of the drug at the time of the accident. The prosecutor stated that he did not intend to go into detail with regard to the Oxycodone but that it was no different than the other medical testimony and evidence in this case. The trial court ruled that the Oxycodone evidence was not prejudicial because it was “part of the story.”
¶6 During direct examination, Kundinger indicated he had asked Halida routine medical questions. As part of a standard questionnaire, Kundinger asked Halida if he was on any medication. Halida responded that he had taken two Oxycodone pills earlier that day for a hand injury. This statement was the only mention of the Oxycodone at any time during the trial, from opening statements until closing arguments.
¶7 The six-person jury found Halida guilty of both operating a vehicle while intoxicated (OWI) and operating a vehicle with a prohibited alcohol content (PAC). Halida appeals both convictions.
Standard of Review
¶8 It is within the discretion of the trial court to exclude
relevant evidence where its probative value is outweighed by the danger of
unfair prejudice. Miller v. State, 53 Wis. 2d
358, 368, 192 N.W.2d 921 (1972). A trial court’s determination to admit or
exclude evidence is a discretionary decision that will not be upset on appeal
absent an erroneous exercise of discretion. State v. Jenkins, 168 Wis. 2d 175,
186, 483 N.W.2d 262 (Ct. App. 1992).
Analysis
¶9 Halida
argues that Kundinger’s testimony regarding his use of Oxycodone unfairly
prejudiced him because it could have “lure[d] the factfinder into declaring
guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States, 519 U.S.
172, 172 (1997). However, looking at the
totality of the circumstances, it is difficult to imagine how any reasonable
juror could have found Halida not guilty of driving while under the influence
of alcohol, whether or not the Oxycodone was mentioned. In view of the record, the mention of
Oxycodone was superfluous and immaterial, even though unnecessary to the
State’s prosecution of the case.
¶10 The
testimony regarding the Oxycodone was very brief and neither Kundinger nor the
State even speculated that it may have impacted Halida’s ability to drive. Even if the jury did consider the Oxycodone,
the blood alcohol test was overwhelming proof that Halida was driving far above
the legal limit of .08. Additionally, Kundinger
testified that Halida smelled of alcohol and had bloodshot eyes. Halida himself admitted that he had been
drinking for almost twelve hours until shortly before the accident. Any reasonable juror would have found all
this evidence to be sufficient to convict Halida without any mention of
Oxycodone.
¶11 Furthermore
Halida was clearly charged with driving under the influence of alcohol, not the
prescription medication. The jury
instructions defined “Under the Influence of an Intoxicant” in terms of consumption
of an alcoholic beverage. Nowhere in the
charge or the jury instructions for this charge did “Operating Under the
Influence” reference the influence of any other substance, besides alcohol. Additionally, count two was specifically
titled “Operating With a Prohibited Alcohol Concentration,” and the
instructions clearly indicated an element of the offense to be the measurement
of .08 grams or more of alcohol in
100 milliliters of the person’s blood. Thus,
the instructions and the charges themselves unmistakably communicated to the
jury that Halida’s guilt depended on the evidence of his alcohol
consumption. There is no basis to
believe that the jury factored in the Oxycodone when weighing Halida’s
guilt.
¶12 Lastly,
we note that the burden of proof in an action for forfeiture is reasonable
certainty, not beyond a reasonable doubt as in a criminal trial. Only five out of the six jurors needed to
agree to convict or acquit in this case, and none dissented on either
charge. The jury’s decision was
unsurprising given that there was no basis in the evidence for any other
determination.
¶13 Looking
at the totality of the evidence in this case, the State’s mention of Oxycodone
did not unfairly prejudice Halida.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.