|
COURT OF
APPEALS DECISION DATED AND
RELEASED January
29, 1997 |
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. 96-2169
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
HENRY
STOTHARD,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Ozaukee County: THOMAS R. WOLFGRAM, Judge. Affirmed.
SNYDER,
P.J. Henry Stothard appeals
his conviction for speeding, contrary to § 346.57(4)(h), Stats., 1993‑94. The single issue he presents on appeal is
whether the State proved by clear and convincing evidence that he was traveling
82 miles per hour. We conclude that it
did and consequently affirm.
State
Trooper Michael Dyer was working in traffic enforcement when he observed the
Stothard vehicle pass his location.
Because he believed the speed of the vehicle was in excess of the posted
limit, he activated his VASCAR unit.
The VASCAR unit has been used by law enforcement for more than twenty
years. See State v.
Frankenthal, 113 Wis.2d 269, 271-72, 335 N.W.2d 890, 891 (Ct. App.
1983). The principle underlying VASCAR
is the use of the formula: speed equals
distance divided by time. See id.
at 271, 335 N.W.2d at 891. When a
vehicle enters the target area, the VASCAR operator switches on the
device. When the vehicle covers the
measured distance, the operator switches off the timer. The unit then functions as a calculator and
divides the time into the distance traveled to arrive at the speed at which the
clocked vehicle was traveling. See
id.
Because
it was dark, the two benchmarks Dyer used were two overhead viaducts. He activated the unit when he saw the
headlights of the Stothard vehicle “flash” as the car passed under the first
overpass.[1] By this same method Dyer determined when to
shut the unit off, and he testified that he did so when he observed the vehicle
reach the second viaduct. Based on the VASCAR calculation, the Stothard vehicle
was traveling at 82 miles per hour.
In
addition to the above testimony, Dyer also testified that he had been trained
in the use of the VASCAR unit, and at the beginning and end of the shift in
question, he conducted two checks of whether his particular unit was operating
properly.
Stothard
also testified. He stated that he
estimated his speed was approximately 70 miles per hour at the time the VASCAR
reading was taken. He also admitted
that he had been checking his speedometer “[f]rom time to time” and that the
last time he looked at it, it read 70 miles per hour.
The
trial court weighed the testimony it had before it and found Dyer's testimony
to be more reliable. The trial court
found by clear, satisfactory and convincing evidence that Stothard was
traveling 82 miles per hour when he was stopped. This appeal followed.
The
trial court's determination in this case rested on the credibility of Dyer and
the reliability of the VASCAR computation when placed in opposition to the
testimony of Stothard. A trial court's
findings of fact will not be set aside unless clearly erroneous, and a
reviewing court shall give due regard to the trial court's opportunity to judge
the credibility of the witnesses.
Section 805.17(2), Stats.
Under
Frankenthal, 113 Wis.2d at 272, 335 N.W.2d at 891, a prima facie
presumption of accuracy arises when the State offers VASCAR evidence of
speeding. The State is not required to
affirmatively prove the accuracy of the device. See id.
Any contentions that are raised by Stothard go to the weight of the evidence
when it is considered by the trier of fact.
See id. at 272-73, 335 N.W.2d at 891.
The
trial court heard the testimony of Dyer that he had been employed by the
Wisconsin State Patrol for approximately ten years. Dyer testified that he had been “fully trained” in the use of the
VASCAR unit and had been operating VASCAR units for approximately nine
years. He also stated that he had
specifically received training in the use of “flashes” to track a vehicle when
operating the unit at night and that he served as a VASCAR instructor. He explained that unlike radar, the VASCAR
unit cannot be affected by outside interference. He stated that his check of the unit showed that “[e]verything
was within acceptable parameters.”
In contrast to Dyer's testimony, Stothard
testified that he had been watching his speedometer “[f]rom time to time” and
that he estimated he was going 70 miles per hour.[2] He also testified that the last time he
looked at his speedometer, it read “70.”
He admitted to having had two drinks earlier in the evening, but
testified that his perceptions as to what was going on around him were not
impaired.
On
appeal, we examine the record for facts to support the findings of the trial
court. See Odegard v.
Birkeland, 85 Wis.2d 126, 134, 270 N.W.2d 386, 391 (1978). The credibility of the witnesses and the
weight to be given their testimony are matters for the trier of fact. See id. at 135, 270
N.W.2d at 391.
Dyer
testified at length as to his credentials as a VASCAR operator and as to his
operation of the unit on the date in question.
Stothard offered no testimony to refute this, but rather relied on
testifying that he had been watching his speedometer, and therefore could not
have been going as fast as the VASCAR unit reported. The trial court found Dyer's testimony more credible than
Stothard's and we conclude that this finding is supported by the facts of
record.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[1] The “flash”
refers to the fact that as a vehicle approaches an overpass at night, the
underside of the viaduct will be lit up by the headlights of the vehicle. As the car passes directly under the
viaduct, an observer will see a change from light to dark just as if a light
switch is being turned off.