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COURT OF APPEALS DECISION DATED AND RELEASED July 17, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3241
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
ROBERT J. TURICIK,
Defendant-Respondent.
APPEAL from orders of
the circuit court for Sheboygan County:
TIMOTHY M. VAN AKKEREN, Judge.
Affirmed.
SNYDER, J. The
State appeals from the dismissal of charges against Robert J. Turicik of
operating a motor vehicle while under the influence of an intoxicant (OWI) and
operating with a prohibited blood alcohol concentration. The State contends that the trial court
erred when it: (1) failed to grant the
State's motion for a directed verdict, and (2) denied the State's motion for judgment
notwithstanding the verdict. Because
the cross-examination of the State's witness provided sufficient evidence to
controvert a material element of the offense, the motions were properly
denied. Accordingly, we affirm.
The facts underlying the
incident are not disputed. Turicik was stopped by State Trooper Lori Maples on
a Friday night at approximately 10:45 p.m.
Maples had observed Turicik's car traveling with only one headlight lit
and, after following the car for a short distance, had observed the vehicle
weaving in its lane of travel. After
Turicik had pulled over, Maples approached the car and observed an odor of
intoxicants on Turicik's breath. She
also noted that he had red, glassy eyes and that his speech was slurred.[1]
Maples then had Turicik
perform several field sobriety tests.
On all three tests, Maples observed signs of intoxication. Turicik was arrested and transported to the
police station. One hour and fifteen
minutes after the initial stop, he submitted to an Intoxilyzer test which
produced a reading of 0.10%.
The case was tried to a
jury. The State presented the testimony
of Maples. The defense conducted a
cross-examination, eliciting the fact that Turicik never admitted consuming any
intoxicants and that the Intoxilyzer test has a “built-in 10% error.” After the cross-examination, the defense
rested, declining to present any additional evidence.
The State then motioned
for a directed verdict. The court
determined that there were competing inferences that could be drawn under the
facts presented and denied the motion.
After deliberations, the jury returned a verdict of not guilty.
The State appeals on two
grounds. It contends that the trial
court erred when it denied the initial motion for a directed verdict as well as
a later motion for judgment notwithstanding verdict. We first address the directed verdict issue.
Section 805.14(1), Stats., mandates that a directed
verdict motion should be denied “unless the court is satisfied that,
considering all credible evidence and reasonable inferences therefrom in the
light most favorable to the party against whom the motion is made, there is no
credible evidence to sustain a finding in favor of such party.” The reviewing court must affirm a ruling to
deny a motion for a directed verdict provided there exists any evidence which
supports the nonmoving party's cause of action. Wisconsin Natural Gas v. Ford, Bacon & Davis Constr.
Co., 96 Wis.2d 314, 336, 291 N.W.2d 825, 836 (1980).
Turicik was charged with
violating § 346.63(1)(a) and (b), Stats.,
which prohibits a person under the influence of an intoxicant or with a 0.10%
blood alcohol concentration (BAC) from operating a motor vehicle. The charges require the State to establish
two elements by clear, satisfactory and convincing evidence: (1) that the person was operating a motor
vehicle, and (2) that the person was doing so while under the influence of
intoxicants.
A review of the evidence
presented at trial is required to determine whether any material facts were in
dispute and were properly left to the jury's determination. City of Omro v. Brooks, 104
Wis.2d 351, 353, 311 N.W.2d 620, 621 (1981).
Since the driving element was not disputed, we will review the evidence
pertaining to whether Turicik was under the influence of intoxicants at the
time he was stopped.
The State's witness,
Maples, provided the only testimonial evidence. Maples testified that Turicik had the odor of alcohol on his
breath, exhibited slurred speech and red, glassy eyes, failed all three field
sobriety tests and when tested after the arrest had a BAC of 0.10%.
Section 885.235(1)(c), Stats., states:
The fact that the analysis shows that
there was 0.1% or more by weight of alcohol in the person's blood or 0.1 grams
or more of alcohol in 210 liters of the person's breath is prima facie evidence
that he or she had an alcohol concentration of 0.1 or more.
Although
the above paragraph mandates that an Intoxilyzer reading of 0.10% or higher
establishes a prima facie case, subsec. (4) of the same statute provides:
[T]he admissibility of chemical tests for
alcohol concentration, intoxication or blood alcohol concentration shall not be
construed as limiting the introduction of any other competent evidence bearing
on the question of whether or not a person was under the influence of an
intoxicant [or] had a specified alcohol concentration ....
The
State established its prima facie case when it brought into evidence the 0.10%
Intoxilyzer reading. Consequently, the
burden shifted to Turicik to offer evidence controverting the State's claim
that he operated his vehicle while under the influence of intoxicants. See City of Omro, 104
Wis.2d at 356‑57, 311 N.W.2d at 623.
On cross-examination,
defense counsel elicited from Maples that she failed to question Turicik
regarding whether he had consumed intoxicants.
Nor did he voluntarily make any admission of intoxication. Also, Maples attested that the squad car's
flashing lights remained on while Turicik performed the field sobriety
tests. Maples further testified that
the Intoxilyzer had a built-in 10% margin of error. Defense counsel then indicated that this could result in a
reading “10% on the high side or 10% on the low side.” Maples agreed.
The weight and
credibility of evidence, and inferences drawn therefrom, are matters for the
jury. Holloway v. K-Mart Corp.,
113 Wis.2d 143, 150, 334 N.W.2d 570, 574 (Ct. App. 1983). The case should be taken from the jury and a
verdict directed only if the evidence gives rise to no dispute as to material
issues or when evidence is so clear and convincing as reasonably to permit
unbiased and impartial minds to come to but one conclusion. Id.
A reviewing court gives
weight to the trial court's decision to deny a directed verdict motion. Id. As the trial court explained:
Under
the circumstances in this case, I believe that a reasonable jury could make a
determination that as to some of the facts involved, that it is not such that
there is no other conclusion that could be drawn. That there are various ways to account for certain of the results
of tests or observations made by the trooper.
And under these circumstances, the Court would not direct a verdict, and
will deny the motion to the State.
When more than one
reasonable inference can be drawn from the evidence, the court of appeals must
accept the inference drawn by the fact finder.
Id. at 151, 334 N.W.2d at 574. This court is not to search the record on appeal for evidence to
sustain a verdict the jury could have reached but did not. Fehring v. Republic Ins. Co., 118
Wis.2d 299, 306, 347 N.W.2d 595, 598 (1984).
The evidence elicited on
cross-examination could reasonably be interpreted as raising a question as to
whether Turicik was under the influence of an intoxicant at the time of the
stop. The evidence offered could
suggest that Turicik's performance on the field sobriety tests was adversely affected
by the squad car's red and blue flashing lights. Also, the testimony that the Intoxilyzer machine had a 10% margin
of error, when combined with the later reading of 0.10%, could lead to the
inference that at the time of the stop, Turicik was not intoxicated. This evidence, coupled with the fact that
Turicik was never questioned about his intoxication and never admitted that he
consumed alcoholic beverages, was sufficient to bring into issue a material
fact and allow the matter to go before the jury.
The State argues,
however, that the testimony presented during the cross-examination of Maples
was not sufficient to counter its prima facie case. In support of this position, the State relies on City of
Omro, 104 Wis.2d at 359, 311 N.W.2d at 624, a decision which reversed a
trial court's denial of a directed verdict motion. While City of Omro presents the directed verdict
issue in a similar context, we are unpersuaded that the facts of the instant
case meet the City of Omro standard, requiring the court to grant
a motion for a directed verdict.
The driver in City
of Omro was charged with operating a motor vehicle while under the
influence of intoxicants after the arresting officer detected the odor of
alcohol on his breath and he failed field sobriety tests. He had a 0.23% BAC, the testimony of the
arresting officer was that the driver admitted consuming a substantial amount
of alcohol and, at trial, the driver confessed that he had a large number of
drinks prior to the stop.
At the close of the City
of Omro case, the State motioned for a directed verdict. The trial court denied the motion and
allowed the case to go to the jury, which returned a not guilty verdict. On appeal, the judgment was reversed and a
verdict was directed against the driver because the material elements of the
offense were not disputed.
The State attempts to
analogize this case with City of Omro, claiming that Turicik
failed to offer evidence sufficient to dispute the State's case and
consequently should be ruled against as a matter of law. However, we conclude, as did the trial
court, that there is a clear distinction between the two cases. In City of Omro, the driver's
admission that he was both driving and under the influence of intoxicants
removed all dispute as to both elements of the offense. See id. at 357‑58,
311 N.W.2d at 623. In the instant case,
Turicik concedes the “driving” element of OWI, but made no concession regarding
being under the influence of intoxicants.
Therefore, the absence of such an admission, coupled with sufficient
controverting evidence, afforded Turicik the opportunity to employ the jury's
fact-finding function.
The State also contends
that its motion for judgment notwithstanding the verdict should have been
granted. A motion for judgment
notwithstanding the verdict must be denied if, after viewing the evidence in
the light most favorable to the nonmoving party, reasonable people could fairly
reach different conclusions. Kolb
v. Chrysler Corp., 661 F.2d 1137, 1140 (7th Cir. 1981). A motion for judgment notwithstanding the
verdict is not a proper challenge to the sufficiency of the evidence, Koplin
v. Pioneer Power & Light Co., 162 Wis.2d 1, 29, 469 N.W.2d 595, 606
(1991), as the State concedes in its brief.
Motions for judgment
notwithstanding the verdict are reserved for instances when a party believes
that “the verdict is proper but for reasons evident in the record which bear
upon matters not included in the verdict, [the moving party] should have
judgment.” Section 805.14(5)(b), Stats.
Based on our conclusion that the evidence presented raised a question as
to a material element and was subject to more than one reasonable inference,
the motion for judgment notwithstanding the verdict was properly denied.
We conclude that the
testimonial evidence elicited by the cross-examination of the arresting officer
was subject to more than one reasonable inference and was therefore sufficient
to bring the matter before the jury. As
a reviewing court, we must accept the inferences drawn by the jury. The motions for a directed verdict and
judgment notwithstanding the verdict were properly denied.
By the Court.—Orders
affirmed.
This opinion will not be
published. See Rule
809.23(1)(b)4, Stats.