PUBLISHED OPINION
Case No.: 96-0241-CR
†Petition for
Review Filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MARK J. MODORY,
Defendant-Appellant.†
Submitted on Briefs: June 11, 1996
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: September 25, 1996
Opinion Filed: September
25, 1996
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Kenosha
(If
"Special", JUDGE: DAVID M. BASTIANELLI
so indicate)
JUDGES: Anderson P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, the cause was
submitted on the briefs of Christopher A. Mutschler of Law Offices of
Barry S. Cohen, S.C. of Elkhart Lake.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of James D. Newlun, assistant district attorney,
Kenosha.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED September
25, 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. 96-0241-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
MARK
J. MODORY,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Kenosha County: DAVID M. BASTIANELLI, Judge. Affirmed.
Before
Anderson, P.J., Brown and Nettesheim, JJ.
NETTESHEIM,
J. Mark J. Modory appeals from a judgment of
conviction for operating a motor vehicle while intoxicated pursuant to
§ 346.63(1)(a), Stats. At the jury trial, Modory sought to defend
on the basis that the motor vehicle involved in the incident was immobile. The trial court ruled that such an
immobility defense was not recognized by Wisconsin law. Thus, the court barred Modory from presenting
this theory of defense to the jury in his closing argument. We affirm the trial court's ruling.
Facts
On
May 5, 1995, officers of the Kenosha police department were dispatched to the
vicinity of the 3200 block of 85th Street in the City of Kenosha. Upon arrival, the officers observed a pickup
truck stationed partially over the curb at the end of the street. The front wheels were over a mound of dirt
off the street, while the rear wheels were over the pavement of the
street. A person, later identified as
Modory, was seated in the driver's seat of the truck. The engine of the vehicle was running and the wheels were
spinning in a forward and a reverse direction.
The vehicle was stuck because the frame was resting on the mound of dirt
and the tires were making little or no contact with the ground. It appeared to the officers that Modory was
attempting to free the vehicle.
Upon
further investigation, the officers formed the opinion that Modory was
intoxicated. In due course, Modory was
charged with operating a motor vehicle while intoxicated (OWI). Modory pled not guilty and the matter was
tried before a jury. At the conclusion
of the evidence, Modory sought the trial court's permission to argue for
acquittal on the basis that the vehicle was immobile. The trial court ruled that Wisconsin law did not recognize such a
defense to an OWI charge. The court
therefore barred Modory from making this argument. The jury found Modory guilty, and Modory appeals.
Discussion
We
begin by putting Modory's appeal in its proper perspective. First, the trial court's ruling did not
preclude Modory from arguing to the jury that the State had not met its burden
of proof on the element of operation.
Thus, Modory was able to argue all the facts which supported his claimed
“immobility” defense. However, the
trial court ruled that Modory could not argue that the vehicle was
immobile. He could, however, argue that
the State had not proven the element of operation. Thus, this is not a case in which relevant facts were withheld
from the jury. This is a subtle, but
important, distinction.
Second,
Modory couches his appellate argument in affirmative defense terms, contending
that a vehicle's immobility should be recognized as an affirmative defense to
an OWI charge. An affirmative defense
is defined as a matter which, assuming the charge to be true, constitutes a
defense to it. State v. Slaughter,
200 Wis.2d 190, 198, 546 N.W.2d 490, 494 (Ct. App. 1996). Thus, an affirmative defense does not
directly challenge an element of the offense.
However,
Modory's actual development of his argument contends that an immobile vehicle
cannot be “operated.” Operation of a
vehicle is an element of OWI. Section
346.63(1)(a), Stats.; Wis J I—Criminal 2663. Thus, Modory is really challenging an
element of the offense. We therefore
deem the question before us to be whether an immobile vehicle can be operated
within the meaning of the drunk driving statutes. This requires us to construe the statutory reach of the term
“operates” in § 346.63(3)(b). But
this exercise does not take us into the law of affirmative defenses.
The
issue is one of first impression in Wisconsin.[1] Both parties cite to cases from other
jurisdictions which support their respective arguments. Although stating their rulings differently,
these cases have a respective common theme.
Those in support of Modory's position hold that a defendant cannot be said
to be in actual physical control of the vehicle if the vehicle is, in fact,
inoperable or immobile.[2] Those in support of the State's position
hold that if the defendant is in a position to operate or regulate the vehicle,
such is sufficient regardless of the vehicle's immobility.[3] For the most part, cases on both sides of
this ledger deal with statutes which define operation of a motor vehicle in
terms similar to § 346.63(3)(b), Stats. While these cases are of interest and
reflect differing approaches and results, we conclude that existing Wisconsin
law provides the proper basis upon which we can decide this new and further
question.
As
noted, the State charged Modory with operating a motor vehicle while
intoxicated. Section 346.63(3)(b), Stats., defines “[o]perate” as “the
physical manipulation or activation of any of the controls of a motor vehicle
necessary to put it in motion.” In Milwaukee
County v. Proegler, 95 Wis.2d 614, 291 N.W.2d 608 (Ct. App. 1980), the
court of appeals elaborated on this definition in a case where the defendant
was found sleeping behind the wheel of the vehicle with the engine
running. The court held that even
though the vehicle was parked or standing still, the defendant nonetheless had
actual physical control of the vehicle.
Id. at 627-28, 291 N.W.2d at 614. The court stated, “As long as one were
physically or bodily able to assert dominion, in the sense of movement,
then he has as much control over an object as he would if he were actually
driving the vehicle.” Id.
at 628, 291 N.W.2d at 614 (emphasis added).
Both
parties rely on Proegler.
Modory contends that Proegler implicitly recognizes
immobility as a defense to the element of operation via the language which
speaks of the defendant's ability to assert dominion and control in the
sense of movement. See id. Modory reasons that the ability to control
movement is the sine qua non of operation.
Since immobility eliminates the ability to control the vehicle, Modory
argues that he did not operate the vehicle.
The
State relies on other language of Proegler. “One who enters a vehicle while intoxicated
and does nothing more than start the engine is as much a threat to himself and
the public as one who actually drives while intoxicated.” Id. at 626, 291 N.W.2d at
613. Proegler goes on to
say:
‘Operation’
of a vehicle occurs either when a defendant starts the motor and/or leaves it
running. The possibility of danger
exists in either case. It is in the
best interests of the public and consistent with legislative policy to prohibit
one who is intoxicated from attempting to get behind the wheel rather than to
make a fine distinction once such a person is in the position to cause
considerable harm.
Id. at 628-29, 291 N.W.2d at 614.
We
agree with the State's argument.
Section 346.63(3)(b), Stats.,
does not require movement. The statute
only requires that the defendant physically manipulate or activate any of the
controls “necessary to put [the motor vehicle] in motion.” There is little doubt from the evidence in
this case that Modory performed the requisite acts under this statute. He was behind the wheel of a vehicle with
the engine running and was attempting to free the vehicle from its stuck
position.
We
do not construe the Proegler language upon which Modory relies as
altering this clear statutory statement.
Proegler, in fact, said that “the language of sec.
346.63(3), Stats., is clear.” Proegler,
95 Wis.2d at 626, 291 N.W.2d at 613.
Like the statute, Proegler does not say that movement is
necessary; rather, it merely says that if the defendant exercises dominion in
the sense of movement, then the fact of operation has been
established. Id. at
627-28, 291 N.W.2d at 614.
If
there be any question about the true message of Proegler, it is
conveyed in the public and legislative policy language of the case upon which
the State relies. This language makes
clear that the purpose of the statute is to deter a person who is intoxicated
from getting behind the wheel of a motor vehicle in the first instance, rather than
to have a court or jury make a fine distinction later whether the person was in
a position to cause harm. Id.
at 628-29, 291 N.W.2d at 614. Modory's
argument would place a court or jury in the very position which Proegler
disavows.
Finally,
we note that Modory was charged with operating, not driving, a motor
vehicle. Had the charge been driving,
the State would have had to prove that the vehicle was in motion. “‘Drive’ means the exercise of physical
control over the speed and direction of a motor vehicle while it is in
motion.” Section 346.63(3)(a), Stats. (emphasis added). As noted, operation of a motor vehicle
merely requires the manipulation or activation of the controls of a vehicle
“necessary to put it in motion.” Section
346.63(3)(b). We think this distinction
in the statute's language is important.
Had the legislature intended to require vehicular movement as an
ingredient of operating a vehicle, it would have so stated, as it did in the
immediately preceding subsection of the same statute. Where a statute with respect to one subject contains a given
provision, the omission of such provision from a similar statute concerning a
related subject is significant in showing that a different intention
existed. State v. Welkos,
14 Wis.2d 186, 192, 109 N.W.2d 889, 891-92 (1961).
We
hold that the immobility of a motor vehicle does not preclude a finding that
the defendant operated the motor vehicle for purposes of § 346.63, Stats.
The trial court correctly ruled that Modory's proffered argument would
have misstated the law. We affirm the
judgment of conviction.
By
the Court.—Judgment affirmed.
[1] For this reason,
we certified this case to the Wisconsin Supreme Court. The certification, however, was denied.
[2] For cases in
support of Modory's argument see Cagle v. City of Gadsden, 495
So. 2d 1144 (Ala. 1986); State v. De Coster, 162 A.2d 704 (Conn.
1960); Jones v. State, 510 So. 2d 1147 (Fla. Dist. Ct. App.
1987); State v. Scanlon, 263 A.2d 669 (N.H. 1970) (superseded by
statute as stated in State v. Osgood, 605 A.2d 1071 (N.H. 1992));
State v. Derby, 607 A.2d 1068 (N.J. Super. Ct. Law Div. 1992); People
v. Hoffman, 280 N.Y.S.2d 169 (N.Y. Dist. Ct. 1967); City of
Columbus v. Seabolt, 607 N.E.2d 61 (Ohio Ct. App. 1992).