COURT OF APPEALS DECISION DATED AND RELEASED December
20, 1995 |
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. 95-1981-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
KEVIN
KOBRIGER,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Waukesha County: DAVID WILLIS and MARIANNE BECKER,
Judges. Affirmed.
SNYDER,
J. Kevin
Kobriger appeals from a judgment convicting him of operating a motor vehicle
while under the influence of intoxicants (OWI) contrary to § 346.63(1)(a), Stats.,[1]
and an order denying postconviction relief.
On appeal, Kobriger seeks to have his conviction reversed. He argues that the trial court's refusal to
dismiss his case was erroneous as a matter of law or, in the alternative, that
the evidence was insufficient to support the jury verdict. As a second basis for contesting his
conviction, Kobriger argues that under the circumstances it was not possible
for him to operate the vehicle. We
conclude that the evidence was sufficient to show that Kobriger operated a
motor vehicle while under the influence of intoxicants. Consequently, we affirm.
This
case arose out of an accident which occurred in the parking lot of the
apartment complex where Kobriger's girlfriend, Peggy Ronkowski, lived. At approximately 11:00 p.m., Daniel
Hoenisch, the manager of the complex, heard a crash in the parking lot and went
outside to investigate. When he reached
the scene, Hoenisch saw a blue truck with its bumper locked to a parked station
wagon.
When
Hoenisch first saw the truck, it was “[r]ocking, trying to get loose from the
bumper.” As Hoenisch came closer, the
truck stopped moving. Hoenisch
identified the driver as Kobriger.
Hoenisch tried to get Kobriger's attention by tapping on the window of
the truck, but he did not respond.[2] Hoenisch then returned to his apartment and
called the police.
When
Officers Cynthia Sohar and John Ward arrived, Kobriger was still in the truck,
attempting to unhook its bumper from the station wagon. Sohar testified that she observed Kobriger
“trying to put [the truck] into reverse” and that it “would lurch forward at
times.” Sohar further testified that
upon questioning Kobriger about the circumstances, he gave her at least three
conflicting accounts of how the accident had occurred.
In
one of those accounts, Kobriger stated that he had caused the accident. At the same time, Ward interviewed
Ronkowski, who had come from the apartment building when the police
arrived. She stated that she was the
one who had originally hit the station wagon with the truck. Both Kobriger and Ronkowski were taken into
custody for operating a motor vehicle while under the influence of intoxicants.[3] Kobriger agreed to a blood test and was
found to have a BAC of .303%. He was
convicted of operating a motor vehicle while intoxicated, and this appeal
followed.
On
appeal, Kobriger argues that the trial court's refusal to dismiss his case was
erroneous as a matter of law or, in the alternative, that the evidence was
insufficient to support the jury verdict.
For both contentions he relies on a theory that it was impossible for
him to be convicted of an OWI violation when Ronkowski had already been
convicted of this while operating the same vehicle at the same time. As an alternate basis to contest his
conviction, he claims that he should not have been found guilty of the OWI
violation since the truck was immovable, precluding its operation. We address these issues in turn.
Our
review of the first issue requires this court to examine the sufficiency of the
evidence supporting Kobriger's conviction.
In deciding the question of whether a jury verdict was based on
sufficient evidence, an appellate court may not overturn the conviction “unless
the evidence, viewed most favorably to the state and the conviction, is so
insufficient in probative value and force that it can be said as a matter of
law that no trier of fact, acting reasonably, could have found guilt beyond a
reasonable doubt.” State v.
Poellinger, 153 Wis.2d 493, 501, 451 N.W.2d 752, 755 (1990). If more
than one reasonable inference can be drawn from the evidence, the reviewing
court must adopt the inference which supports the conviction. State v. Hamilton, 120 Wis.2d
532, 541, 356 N.W.2d 169, 173-74 (1984).
Kobriger
argues that he should not have been convicted of the OWI violation as “both
[he] and his girlfriend could not physically have been driving the same car at
the same place at the exact same minute.”
Kobriger's argument is based on the assumption that only one person
could have driven the truck to the lot and crashed it into the parked car. Since Ronkowski had already taken
responsibility for doing this, it was impossible for him to be convicted of the
same offense.
Kobriger
wrongly assumes that his conviction arose out of the act of driving the truck
to the parking lot and hitting the parked car.
However, the trial court correctly observed:
The
Court will take it that [it] could happen in a situation where the person that
said they admitted they drove the vehicle into the parking lot, was found
guilty for driving it in, and this person is charged with operating it after
the accident when he was operating it according to the charge ....
Based on our review of the record, we conclude that the
jury was presented with sufficient evidence that Kobriger was behind the wheel
of the truck, attempting to move it, while in an intoxicated condition.
Kobriger
next contends that his conviction should be reversed because it was impossible
for him to “operate” the truck, as its bumper was locked to the parked
car. This issue involves a question of
statutory interpretation. In construing
a statute the primary source is the language itself. County of Milwaukee v. Proegler, 95 Wis.2d 614,
625, 291 N.W.2d 608, 613 (Ct. App. 1980).
If the meaning of a statute is clear, it is improper to employ extrinsic
aids. State v. Annala,
168 Wis.2d 453, 461, 484 N.W.2d 138, 141 (1992).
Section
346.63(3)(b), Stats., defines the
operation of a motor vehicle as “the physical manipulation or activation of any
of the controls of a motor vehicle necessary to put it in motion.” The statute contains no requirement that the
vehicle be able to move; “operating” requires only the manipulation of its
controls. In Proegler, 95
Wis.2d at 626, 291 N.W.2d at 613, this court stated, “One who enters a vehicle
while intoxicated, and does nothing more than start the engine is as much of a
threat to himself and the public as one who actually drives while
intoxicated. The hazard always exists
that the car may be caused to move accidentally, or that the one who starts the
car may decide to drive it.”
Kobriger
argues that because it required a tow truck to separate the two vehicles, his
attempts to disengage his truck from the parked car did not meet the definition
of “operate.” We disagree. Kobriger obviously did not know that it was
impossible or he would not have attempted it.
Sohar saw Kobriger attempt to put the truck into reverse and stated that
the truck would “lurch forward at times.”
Both Sohar and Hoenisch testified that Kobriger was in the driver's seat
with the engine running. As stated in Proegler,
the prohibition against activation “applies either to turning on the ignition
or leaving the motor running while the vehicle is in ‘park.’” Id.
We
conclude on review that there was sufficient evidence presented to support
Kobriger's conviction and that he did operate the truck within the meaning of
the statute.
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[1] The companion
charge of having a prohibited alcohol concentration contrary to § 346.63(1)(b),
Stats., was dismissed.
[2] Hoenisch
testified as to Kobriger's condition when he approached the truck:
At first I thought he was passed out.
When I got down to the window he is--he was sitting sort of half slumped
over, eyes were open, but he was not--didn't look like he was aware of what was
going on, didn't look over at me. Just
sort of staring forward.