|
COURT OF APPEALS DECISION DATED AND RELEASED July 23, 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. 96-0221-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Everett Daniel Neal,
Defendant-Appellant.
APPEAL from judgments of
the circuit court for Milwaukee County:
DANIEL L. KONKOL, Judge. Affirmed.
SCHUDSON, J.[1] Everett Daniel Neal appeals from a judgment
of conviction, following his no-contest plea, for operating an automobile after
revocation, contrary to § 343.44(1), Stats. Neal also appeals from a judgment of
conviction, following a jury trial, for operating a motor vehicle while under
the influence of an intoxicant, contrary to §§ 346.63(1)(a) and 346.65(2),
Stats. Neal claims that the evidence was insufficient to support the
jury verdict. Because Neal has failed
to brief any arguments pertaining to the operating-after-revocation conviction[2]
and because the OWI conviction is sufficiently supported by evidence from the
trial, this court affirms both judgments.
The State called
Milwaukee Police Officers Michael Grogan and Dean Schubert to testify during
Neal's OWI trial. Officer Grogan
testified that on August 25, 1993, he observed Neal driving his vehicle
and deviating from his driving lane.
Officer Grogan testified that he pulled Neal over and that Neal had
bloodshot and glassy eyes, slurred speech and coordination problems. Officer Grogan testified that he detected a
“strong odor” of alcohol on Neal's breath.
Officer Grogan further testified that Neal failed four different field
sobriety tests. Officer Schubert
testified that he administered the breathalyzer test but that Neal did not
breathe into the tube and merely “puffed his cheeks.” Officer Schubert further testified that despite either a second
or third attempt during which Neal again “puffed his checks,” Neal threw the
tube at him and “said words to the effect that he's f----- anyway if he takes
the test.”
Contrary to the
testimony of the police officers, Neal testified that the officers did not ask
him to perform any field sobriety tests.
Neal also testified that he did breathe into the breathalyzer but was
told that he had not blown hard enough to register a reading.
Neal challenges the jury
verdict. He argues that the evidence of
OWI was insufficient.
[I]n
reviewing the sufficiency of the evidence to support a conviction, an appellate
court may not substitute its judgment for that of the trier of fact 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.
If any possibility exists that the trier of fact could have drawn the
appropriate inferences from the evidence adduced at trial to find the requisite
guilt, an appellate court may not overturn a verdict even if it believes that
the trier of fact should not have found guilt based on the evidence before it.
State
v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752, 757-758 (1990)
(citations omitted). Where there are
inconsistencies in the testimony of the witnesses, it is the trier of fact's
duty to determine the weight and credibility of the testimony. See Thomas v. State, 92
Wis.2d 372, 381-382, 284 N.W.2d 917, 923 (1979). An appellate court will substitute its judgment for that of the
trier of fact when the fact-finder relied on evidence that was “inherently or
patently incredible—that kind of evidence which conflicts with nature or with
fully-established or conceded facts.” State
v. Tarantino, 157 Wis.2d 199, 218, 458 N.W.2d 582, 590 (Ct. App. 1990).
Here, the testimony of
Officers Grogan and Schubert was sufficient for a reasonable jury to find Neal
guilty of OWI. The jury obviously found
the officers' testimony regarding their observations of Neal's physical
condition, his inability to perform various field sobriety tests, and his
refusal to provide an adequate breathalyzer sample more credible than Neal's
version of events. Nothing in the
officers' testimony was “inherently or patently incredible.” Therefore, this court affirms.
By the Court.—Judgments
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.