COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 27, 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(1), Stats. |
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No. 95‑2128‑CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff‑Respondent,
v.
GARY R. KNUTSON,
Defendant‑Appellant.
APPEAL from a judgment
of the circuit court for Waukesha County: KATHRYN W. FOSTER, Judge. Affirmed.
ANDERSON, P.J. The narrow issue presented in this appeal is
whether a tavern parking lot with signs declaring that the lot was for “Bike
Parking Only” was an area held out to the public for their motor vehicles. A jury concluded that it was and convicted
Gary R. Knutson of drunk driving. In
this appeal, Knutson calls upon this court to review the jury’s verdict with
respect to whether he was driving on premises held out to the public.
We will uphold the
verdict “unless the evidence, viewed most favorably to the state and the
conviction, is so lacking in probative value and force that no trier of fact,
acting reasonably, could have found guilt beyond a reasonable doubt.” State v. Poellinger, 153
Wis.2d 493, 507, 451 N.W.2d 752, 758 (1990).
In addition, we are obligated to accept and follow the inferences drawn
by the jury unless the evidence on which those inferences are based is
incredible as a matter of law. See id.
Knutson was arrested for
drunk driving in the parking lot of a tavern after the police received a
citizen’s complaint about an accident in the lot. The accident occurred in the tavern’s upper parking lot when
Knutson backed over a motorcycle. The
tavern catered to motorcyclists and when there was a large crowd the tavern
would post portable signs at either end of the tavern building advising “Bike
Parking Only.” The signs were not
posted at the entrance of the parking lot, but they were visible from the state
trunk highway that paralleled the premises.
On appeal, Knutson
maintains the argument that comprised his primary defense at trial. He concedes that the applicability of the
drunk driving laws is not restricted to persons operating on a public highway;
§ 346.61, Stats., provides:
In
addition to being applicable upon highways, ss. 346.62 to 346.64 are applicable
upon all premises held out to the public for use of their motor vehicles,
whether such premises are publicly or privately owned and whether or not a fee
is charged for the use thereof.
However,
Knutson argues that this statute requires the State to produce evidence that it
was the intent of the tavern owner to allow the parking lot to be used by the
public and that the State failed to fulfill its burden.
Section 346.61, Stats., was construed in City of
Kenosha v. Phillips, 142 Wis.2d 549, 419 N.W.2d 236 (1988). In Phillips, the supreme court
held that it was the burden of the prosecution to present “proof that it was
the intent of the owner to allow the premises to be used by the public.” Id. at 554, 419 N.W.2d at
238. In the absence of proof of the
owner’s intent, the drunk driving laws would not be applicable to incidents
occurring off of a public highway. The supreme
court explained that the burden of establishing that the premises were held out
for public use could be satisfied in many ways:
Holding
out can be by action or inaction that would make the intent explicit or
implicit. Either action or inaction
might, in appropriate circumstances, constitute a holding out to the public,
but the burden of proof is on the proponent of the applicability of the
statute.
Id. at
558-59, 419 N.W.2d at 239-40.
We agree with Knutson
that the testimony of the bartender on duty the day of the accident is not
direct evidence of the intent of the owner because the bartender was an
employee without any ownership, management or supervisory interest. However, we disagree with Knutson that the
only real evidence of the owner’s intent was the “Bike Parking Only” signs and
that the only inference that could be drawn from this evidence was that the
owner intended not to hold out the tavern’s parking lot for public use.
In City of
LaCrosse v. Richling, 178 Wis.2d 856, 860, 505 N.W.2d 448, 449 (Ct.
App. 1993), we developed a commonsense test for the application of § 346.61, Stats., “the appropriate test is
whether, on any given day, potentially any resident of the community with a
driver’s license and access to a motor vehicle could use the parking lot in an
authorized manner.”
Applying this test to
the facts of this case, we conclude that there is sufficient circumstantial
evidence of the tavern owner’s intent to support the jury’s verdict that the
parking lot was held out for use of the public. See Phillips, 142 Wis.2d at 558, 419 N.W.2d
at 239. The “Bike Parking Only” signs
were portable signs that were not permanently posted, they were not posted at
the entrance of the parking lot and they did not warn violators of potential
consequences for disobedience.[1] And, because the signs were portable and
only used when there was a large number of motorcyclists at the tavern, the
jury could reasonably infer that the parking lot was not maintained for the
benefit and use of motorcyclists.[2] The imprecise makeup and random use of the
signs permit the jury to reach the reasonable conclusion that the owner had no
intention to restrict the use of the parking lot.
In addition, although
the testimony of the bartender is not direct evidence of the owner’s intent, it
is circumstantial evidence of that intent.
A jury could reasonably infer that the bartender was given instructions
pertaining to the use of the parking lot.
The bartender testified that access to the upper lot was not restricted
to motorcycles when the signs were posted and that anyone could enter the lot
for any purpose. She also testified
that any person could park his or her motor vehicle in the lot and leave it
there and no action would be taken to remove the motor vehicle.
We conclude that the
circumstantial evidence and reasonable inferences support the jury’s
determination that the tavern premises were held out to the public for the use
of their motor vehicles. Therefore, we
affirm Knutson’s conviction for his fourth drunk driving offense.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] In comparison, in City of Kenosha v. Phillips, 142 Wis.2d 549, 419 N.W.2d 236 (1988), the signs were permanently posted at the entrance of the parking lots, limited parking to employees of AMC and warned violators of potential consequences. From this evidence, without the testimony of the owner or manager of AMC, the supreme court concluded that the parking lot was not held out to the public. See id. at 559, 419 N.W.2d at 240.