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COURT OF APPEALS DECISION DATED AND RELEASED August 29, 1995 |
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. 94-3155
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
CITY OF GLENDALE,
Plaintiff-Respondent,
v.
JOHNNY E. BOHANNON,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County: KITTY K. BRENNAN, Judge. Affirmed.
SULLIVAN,
J. Johnny E. Bohannon appeals from a forfeiture judgment arising out
of a jury trial that found him guilty of operating a motor vehicle while under
the influence of an intoxicant—first offense.
He presents three issues for our review: (1) whether the evidence was
insufficient to support the jury's guilty verdict; (2) whether the trial court
erroneously exercised its discretion by failing to admit a blood alcohol chart
into evidence; and (3) whether the trial court erroneously exercised its
discretion by restricting the scope of Bohannon's closing argument. This court concludes that the evidence
supports the jury's guilty verdict and that the trial court properly exercised
its discretion, both in refusing to admit the chart into evidence and in
restricting Bohannon's closing argument.
Accordingly, this court affirms.[1]
In the early morning
hours of February 19, 1993, City of Glendale Police Officer John Pinkert
stopped Bohannon's automobile for speeding, changing lanes without signaling,
and making an illegal U-turn. After
smelling alcohol emanating from inside Bohannon's car, and upon hearing
Bohannon's admission that he had a few drinks, Officer Pinkert ordered Bohannon
to perform several field sobriety tests.
Bohannon failed all four tests and was arrested for operating an automobile
while under the influence of an intoxicant.
Bohannon received a jury
trial in the circuit court for Milwaukee County. During the trial, Bohannon attempted to introduce into evidence a
blood alcohol chart. Based upon Rule 904.03, Stats., the trial court refused to admit the chart, concluding
that because no other evidence was presented concerning Bohannon's actual blood
alcohol level, the chart had “great potential for confusing the jury.” Further, during Bohannon's closing argument,
the trial court refused to allow Bohannon to mention anything about the State's
failure to “provide scientific evidence of blood alcohol level.” A jury found him guilty of the charged
offense.
Bohannon first argues
that there is insufficient evidence to support the jury's guilty verdict. When reviewing a claim that there is
insufficient evidence to support a jury verdict, this court searches for
credible evidence to support the verdict.
See York v. National Continental Ins. Co., 158
Wis.2d 486, 493, 463 N.W.2d 364, 367 (Ct. App. 1990). Credibility determinations and the weight given to witness
testimony are left to the jury. Id.
Overwhelming evidence in
the record supports the jury's guilty verdict.
Bohannon argues that the reason he failed the field sobriety tests was
because the police did not provide him with proper instructions on how to
complete the tests. Further, he argues
that no blood alcohol tests were performed, and that he and the bartender
testified that while he did consume intoxicants, the amount was allegedly not
excessive for a person of his weight.
Finally, he argues that although the police testified that Bohannon
violated several traffic laws, no citations were issued for these violations.
Notwithstanding the
above arguments and assertions, credible evidence clearly supports the jury's
verdict. First, Officer Pinkert
testified that he did explain the sobriety tests to Bohannon. Credibility determinations are left to the
jury, and the jury could accept Officer Pinkert's testimony over Bohannon's
version of the events. As such, the
jury could also believe the testimony that Bohannon failed the sobriety
tests. Such evidence is credible and
supports the jury's verdict.
Bohannon next argues
that the trial court erroneously exercised its discretion by denying Bohannon's
request to allow a blood alcohol chart into evidence. A trial court possesses wide discretion in determining whether to
admit or exclude evidence, and this court will reverse such determinations only
upon an erroneous exercise of discretion.
State v. Lindh, 161 Wis.2d 324, 348‑49, 468 N.W.2d
168, 176 (1991). The trial court
properly excluded the chart in this case.
No evidence was
presented of Bohannon's actual blood alcohol reading. There was no reading because Bohannon refused to submit to an
intoxilyzer test. Without any issue of
Bohannon's actual blood alcohol reading, the trial court could properly
conclude that introducing a blood alcohol chart into evidence would have a
great potential to confuse the jury. See
§ 904.03, Stats. (evidence
may be excluded if probative value of evidence is substantially outweighed by
danger of unfair prejudice or confusion of issues). The trial court properly excluded the chart in this case.
Bohannon finally argues
that the trial court erroneously exercised its discretion by preventing him
from discussing the State's failure to provide scientific evidence of
Bohannon's blood alcohol level. This
court disagrees. “While counsel has
wide latitude in closing arguments, the control of the content, duration of the
argument, and the form of the closing argument are within the sound discretion
of the trial court.” State v.
Lenarchick, 74 Wis.2d 425, 457, 247 N.W.2d 80, 97 (1976). We will not reverse a trial court's
determination on these issues absent an erroneous exercise of discretion. Id.
The trial court did not
erroneously exercise its discretion; the issue of the State's failure to
provide scientific evidence of Bohannon's blood alcohol level was
irrelevant. Accordingly, the trial
court could restrict Bohannon from making references in his closing argument to
irrelevant topics that could greatly confuse the jury.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.