COURT OF APPEALS DECISION DATED AND RELEASED MAY 7, 1996 |
NOTICE |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3395-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ROBERT J. KETNER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Shawano County:
EARL W. SCHMIDT, Judge. Modified
and, as modified, affirmed.
LaROCQUE, J. Robert Ketner appeals a judgment of
conviction for operating a vehicle while under the influence of an intoxicant
(OWI), second offense, and operating a motor vehicle with a blood alcohol
concentration (BAC) of .10% or greater.
The arresting officer testified he stopped Ketner because Ketner's car
had a defective headlight and he was speeding.
Ketner argues that the trial court erred by (1) concluding that there
was probable cause for the stop without explicitly finding that Ketner was
speeding or that his car's headlight was defective, (2) relying on the
arresting officer's testimony when there was evidence contradicting the
officer's version of the facts, and (3) failing to dismiss either the OWI
or the BAC count as required by § 346.63(1)(c), Stats.[1] This court rejects Ketner's arguments
because: (1) The trial court implicitly
found that the headlight was defective and Ketner was speeding,
(2) judging the credibility of competing testimony is within the province
of the trial court, and (3) although § 346.63(1)(c), as interpreted by
case law, requires dismissal of one of the counts, the trial court's failure to
dismiss is harmless error because the court treated both convictions as one
offense for purposes of sentencing and counting convictions.
Shawano police officer
Jeffrey Heffernon testified that on October 22, 1994, at 3:14 a.m., he was
traveling the speed limit in a twenty-five-mile-per-hour zone when he noticed
Ketner's vehicle approaching rapidly from behind. Heffernon testified that Ketner's vehicle had a defective
headlight. He stopped the vehicle for
both the defective headlight and speeding.
When Heffernon
approached Ketner's vehicle, he noticed the odor of intoxicants. Heffernon administered field sobriety tests
and an Intoxilyzer test. Based on the
results of these tests, Heffernon cited Ketner with operating a motor vehicle
while under the influence of an intoxicant contrary to § 346.63(1)(a), Stats., and operating a motor vehicle
with a BAC greater than or equal to .10% contrary to § 346.63(1)(b), Stats.
Ketner brought a motion
to suppress evidence, alleging that the stop was illegal because Heffernon did
not have reasonable grounds to believe Ketner was violating or had violated a
traffic regulation when he stopped him.[2] See § 345.22, Stats.
At the motion hearing, Ketner testified that his headlights provided
"fine light" on the night he was arrested and that his headlights
both worked the morning after the arrest.
The affidavit of Ketner's mechanic stated that he checked the headlights
of Ketner's vehicle the day before Ketner was arrested and found them to be in
working order. Ketner also challenged
the officer's observation that Ketner was speeding on grounds that the officer
did not use radar or the pacing method to measure speed.
The trial court ruled
that Heffernon had reasonable grounds for the stop. Ketner then argued that either the OWI count or the BAC count
should be dismissed pursuant to § 346.63(1)(c), Stats. The trial
court refused to dismiss either count, but noted that both counts are treated
as one for purposes of sentencing and counting convictions. Ketner pled guilty to both counts with the
understanding that he could withdraw his pleas if the trial court's decision
was overturned on appeal.
Ketner first argues that
the trial court erred by concluding that Heffernon had a reasonable basis to
stop him. His argument is based upon
the court's failure to make an express factual finding that either Ketner's
headlights were defective or that he was speeding. The trial court stated:
[T]he affidavit from [the mechanic], if
it would have been the day of the incident or the morning after as to whether
the lights were working or not, would certainly be more probative. Of course, Mr. Ketner testified they were
working. I guess that's not dispositive
on the issue of whether it was working at the time the officer said it
wasn't. ...
But
I think clearly the officer's testimony with regard to the speed is other than
Mr. Ketner saying he was driving twenty-five. ... [T]his trier of fact's
observation and the knowledge and experience in the affairs of life would
indicate clearly that if you are going twenty-five and someone is coming up on
you rapidly, you know they are going faster than twenty-five. So the officer made the stop. He has probable cause to stop the vehicle I
think on both counts ....
This
court may conclude that a missing finding on an issue "was determined in
favor of or in support of the judgment."
Sohns v. Jensen, 11 Wis.2d 449, 453, 105 N.W.2d 818, 820
(1960). This court concludes that the
trial court implicitly found that Ketner's headlight was defective and that
Ketner was speeding at the time Heffernon stopped him.
Next, Ketner argues that
the trial court could not reasonably find that either his headlight was
defective or he was speeding. This
court does not set aside findings of fact by a trial court unless the findings
are clearly erroneous. Section
805.17(2), Stats. Ketner does not dispute that Heffernon's
testimony supports both of these findings; rather, he refutes Heffernon's
testimony based on his own testimony and his mechanic's affidavit that his
headlights worked the day before the arrest.
The weight of the evidence and the credibility of witnesses are matters
entirely within the province of the trier of fact. Lac La Belle Golf Club v. Village of Lac La Belle,
187 Wis.2d 274, 289, 522 N.W.2d 277, 283 (Ct. App. 1994). This court rejects Ketner's argument.
Third, Ketner argues
that the trial court erred by failing to dismiss either the OWI count or the
BAC count. Section 346.63(1)(c), Stats., provides that if a person is
found guilty of both OWI and BAC "for acts arising out of the same
incident or occurrence, there shall be a single conviction for purposes of
sentencing and for purposes of counting convictions ...." Town of Menasha v. Bastian,
178 Wis.2d 191, 195, 503 N.W.2d 382, 383 (Ct. App. 1993), interpreted this
subsection: "In other words, the
defendant is to be sentenced on one of the charges, and the other charge is to
be dismissed." The trial court
treated the convictions as one for purposes of sentencing and noted that the
convictions would be treated as one for purposes of counting convictions, but
refused to dismiss one of the convictions.
Because this court is bound by the published decisions of another
district, the BAC count must be deemed dismissed. See State v. Lee, 157 Wis.2d 126, 130 n.4,
458 N.W.2d 562, 563 n.4 (Ct. App. 1990).
Although the case law
suggests one of the charges must be dismissed, the error is harmless. Ketner does not contend that he was
prejudiced by the court's failure to dismiss one of the charges as long as the
charges are treated as one for purposes of sentencing and counting
convictions. This court is authorized
to reverse a judgment only where an error in the trial court prejudiced the
complaining party's case. Section
805.18(2), Stats. This court therefore modifies the judgment
dismissing the BAC count.
By the Court.—Judgment
modified and, as modified, affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.
[1]
Section 346.63(1), Stats.,
provides in part:
(1) No person may drive or
operate a motor vehicle while:
(a) Under the influence of
an intoxicant or a controlled substance or a combination of an intoxicant and a
controlled substance, under the influence of any other drug to a degree which
renders him or her incapable of safely driving, or under the combined influence
of an intoxicant and any other drug to a degree which renders him or her
incapable of safely driving; or
(b) The person has a
prohibited alcohol concentration.
(c) A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of par. (a) or (b) or both for acts arising out of the same incident or occurrence. If the person is charged with violating both pars. (a) and (b), the offenses shall be joined. If the person is found guilty of both pars. (a) and (b) for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under ss. 343.30 (1q) and 343.305. Paragraphs (a) and (b) each require proof of a fact for conviction which the other does not require.