COURT OF APPEALS DECISION DATED AND RELEASED January 24, 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. 95-2334
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
CITY OF SHEBOYGAN,
Plaintiff-Respondent,
v.
TOBY T. WATSON,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Sheboygan County:
JOHN B. MURPHY, Judge. Affirmed.
NETTESHEIM, J. Toby
T. Watson appeals from a forfeiture judgment based upon the trial court's
determination following a bench trial that Watson had furnished alcoholic
beverages to a minor in violation of a City of Sheboygan ordinance. On appeal, Watson argues that the evidence
does not support the court's guilty finding and that the court did not
sufficiently set out its findings pursuant to § 805.17(2), Stats.
We reject Watson's arguments and affirm the judgment.
Watson is the licensee
of the Downtown Club, a tavern establishment in the city. On December 31, 1994, Anita Baker, then
nineteen years of age, entered the club with her friend, Shelly Rau, who was
then twenty-one years of age. According
to Baker's testimony, when she entered the club, an officer in a blue uniform
and a bouncer were present. When asked
for identification, Baker stated that she did not have any identification with
her, but that she was twenty-one years of age.
She was then admitted to the club.
Rau testified that as she was presenting her identification at the
entrance, she saw Baker speaking with a uniformed officer and that she did not
see Baker present any identification.
While at the club, Baker was served alcoholic beverages.
After leaving the club,
Baker was stopped while driving an automobile.
She was cited for operating a motor vehicle without an operator's
license and, eventually, for operating a motor vehicle while intoxicated. In response to interrogation by the arresting
officer, Baker stated that she had been at the Downtown Club and that she had
been admitted without showing any identification. Based on this information, Baker was also cited for underage
consumption of alcohol and Watson was cited for furnishing alcoholic beverages
to a minor.
Watson testified that he
neither recalled nor recognized Baker or Rau.
He testified that the club always has someone checking identification at
the entrance door and that no one is admitted without proper identification. Carl Borstad, a security guard for the club,
testified that he was on duty on the evening in question and was wearing a blue
uniform. He did not recognize Baker or
Rau. He stated that he would not have
admitted anyone without proper identification.
The bouncer was out of the country at the time of the trial and did not
testify.
Following the close of
the evidence, the trial court adopted Baker's testimony that she had been
admitted to the club without producing identification. The court found Watson guilty and he
appeals.
When the trial court
acts as the finder of fact, it is the ultimate arbiter of the credibility of
the witnesses and the weight to be given to their testimony. Gehr v. City of Sheboygan, 81
Wis.2d 117, 122, 260 N.W.2d 30, 33 (1977);
see also § 805.17(2), Stats. A trial court's factual findings will not be
set aside unless clearly erroneous, and we must give due regard to the ability
of the trial court to judge the credibility of the witnesses. Section 805.17(2).
Watson contends that his
testimony regarding the club's policy requiring identification for all patrons,
coupled with Borstad's testimony that he would not have admitted Baker without
proper identification, renders Baker's testimony that she was admitted to the
club without identification implausible and not worthy of belief. We disagree.
First, neither Watson
nor Borstad specifically recalled or recognized Baker. Second, Borstad admitted that he was not
monitoring the entrance during the entire evening, and he acknowledged that the
bouncer, not the security guard, was primarily responsible for the
identification checks. As noted, the
bouncer did not testify. Third, and
most importantly, we reject the premise of Watson's argument which contends
that Baker unequivocally testified that she was challenged at the entrance to
the club by a blue-uniformed officer.
While portions of Baker's testimony support this premise, other portions
do not. When first questioned on this
matter, Baker testified that the person who “carded” her was “the officer,” but
she immediately further described him as “the bouncer.” Later she testified that both the officer
and the bouncer carded her. Still
later, she testified that she could not identify the person in court wearing
the blue uniform as the person who carded her.
In light of these
waverings, the trial court's observation that Baker's testimony was “sketchy”
in this regard was well taken. While
Baker's less than precise testimony on this point may have provided a
reasonable basis for rejecting Baker's testimony in toto, the trial court was
not obligated to do so.
Thus, the trial court
was entitled to adopt Baker's other testimony that she was admitted to the club
without producing the required identification.
In making this credibility determination, the court properly assessed
any possible motive for Baker to falsely testify. See Wis
J I—Criminal 300; Wis J
I—Civil 215. Noting that Baker
had herself been charged with multiple offenses regarding her role in the
events, the court could discern no basis for Baker to fabricate her testimony.
Where the evidence
supports the drawing of two conflicting but reasonable inferences, the trial
court, not this court, must decide which inference to draw. Plesko v. Figgie Int'l, 190
Wis.2d 764, 776, 528 N.W.2d 446, 450 (Ct. App. 1994). Such is the case here. We
conclude that the evidence supports the trial court's guilty finding and that
the City met its burden of proof.
Watson also contends
that the trial court's bench decision fails to adequately set forth the
ultimate facts as required by § 805.17(2), Stats. Specifically, Watson complains that the
court's decision fails to adequately address the testimony of Watson, Borstad
and Rau that Baker spoke with a blue-uniformed officer. However, as we have already observed,
neither Watson nor Borstad specifically recalled or recognized Baker. And, as we have also already noted, Baker's
testimony was vague as to whom she spoke with regarding identification. Thus, the various testimonies of Baker,
Watson and Borstad are not necessarily at loggerheads.
It is true that the trial court did not
expressly address Rau's testimony that she saw Baker talking to a police
officer. However, a trial court's
obligation pursuant to § 805.17(2), Stats.,
is to find the “ultimate facts,” not evidentiary facts. See Finkelstein v. Chicago
& N. W. Ry., 217 Wis. 433, 439, 259 N.W. 254, 256 (1935). Moreover, a trial court's failure to address
evidence which arguably contradicts the court's ultimate fact determination
does not necessarily mean that the court did not consider the contrary
evidence. See Chernetski
v. American Family Mut. Ins. Co., 183 Wis.2d 68, 80, 515 N.W.2d 283,
288-89 (Ct. App. 1994). The trial
court's duty only extends to finding ultimate facts upon which a judgment
rests. Walber v. Walber,
40 Wis.2d 313, 319, 161 N.W.2d 898, 901 (1968). We conclude that the trial court's decision properly recited the
ultimate facts upon which the judgment against Watson rests.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.