|
COURT OF
APPEALS DECISION DATED AND
RELEASED August
29, 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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0676
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
VERNON
COUNTY,
Plaintiff-Respondent,
v.
RICHARD
J. PETERSON,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Vernon County: MICHAEL J. ROSBOROUGH, Judge. Affirmed.
EICH,
C.J.[1] Richard Peterson appeals from a judgment
finding him guilty of operating a motor vehicle while intoxicated. He argues that the evidence was insufficient
to support the finding. We reject the
argument and affirm.
We
note at the outset that Peterson appears to confuse the burden of proof in the
trial court in drunk driving cases with the scope of our review of the judgment
on appeal, for he repeatedly reminds us that the county must prove its case in
the trial court by clear, satisfactory and convincing evidence. See § 345.45, Stats.
That is true. When the trial is
concluded, however, and the decision is entered and appealed, the appellate
court is bound by the trial court's findings unless they are clearly
erroneous. Section 805.17(2), Stats.
And when more than one inference can be drawn from the credible evidence,
we must accept the inference drawn by the trier of fact. Mentzel v. City of Oshkosh,
146 Wis.2d 804, 808, 432 N.W.2d 609, 611 (Ct. App. 1988) (citation
omitted). We search the record not for
evidence opposing the trial court's decision, but for evidence supporting it. Id.
Peterson
argues at length that there was a conflict of evidence in the case regarding
the amount of beer he consumed prior to his arrest, and he claims that the
trial court's "finding" that he had several is unsubstantiated. At one point in its oral decision, the trial
court noted the conflicting testimony on the point—whether he and his companion
purchased "a six or a twelve pack"—and stated: "I would infer
that it probably was a twelve pack," and that "he probably had more
than four beers ... [or] more likely ... six or seven." According to the court: "[T]hat's a
reasonable inference from all the evidence in this case."
First,
Peterson fails to persuade us that the court's inference was unreasonably drawn
from the evidence. More to the point,
whether he consumed three, four, six or twelve beers seems to be
immaterial. As the State correctly
points out, what is material in drunk driving cases is evidence that
"demonstrate[s] that the defendant was influenced by the alcohol which he
had consumed to the point that his [or her] ability to operate a motor vehicle
was materially or substantially impaired." We agree with the State that the evidence is sufficient.
Peterson
was found lying in a ditch near an overturned motorcycle, which had apparently
run off the road and crashed into a rock while attempting to make a U-turn on
the highway. Although he appeared to be
uninjured, Peterson was lethargic to the point of being unresponsive, and an
emergency medical technician noticed a moderate to strong odor of intoxicants
about his person. He was taken to the
hospital where, approximately one hour later, one of the deputies noticed a
strong odor of intoxicants while standing several feet away from him. His eyes were glassy and bloodshot, and he
was unresponsive to the deputies' questions about his family and his
motorcycle. While standing at a counter
at the hospital, Peterson was observed to be holding onto the countertop while
signing a form and swaying from side to side.
Determinations
of guilt have been approved on the same—or lesser—evidence. See, e.g., State v.
Burkman, 96 Wis.2d 630, 644, 292 N.W.2d 641, 648 (1980) (determining
unsteady balance, slurred speech, odor of alcohol and failure to touch nose
with fingertip held sufficient under criminal reasonable-doubt burden of
proof); City of Milwaukee v. Johnston, 21 Wis.2d 411, 412-13, 124
N.W.2d 690, 692 (1963) (holding poor balance, odor of intoxicants, red face,
bloodshot eyes and slurred speech sufficient to convict of ordinance
violation).
Peterson
puts forth no reasons to overturn the trial court's decision.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.