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COURT OF
APPEALS DECISION DATED AND
RELEASED January
29, 1997 |
NOTICE |
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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
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No. 96-2078-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
BRYAN
K. HECKMAN,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Sheboygan County: GARY LANGHOFF,
Judge. Affirmed.
SNYDER,
P.J. Bryan K. Heckman appeals
from a judgment convicting him of operating a motor vehicle while under the
influence of an intoxicant (OWI) contrary to § 346.63(1)(a), Stats., and of operating a motor
vehicle while having a prohibited blood alcohol concentration contrary to
§ 346.63(1)(b). He contends that
the trial court erred in convicting him of OWI absent any evidence that would
prove beyond a reasonable doubt that he was operating on a public highway, as
required by § 346.61, Stats. In addition, he argues that the trial court
erred in convicting him of operating with a prohibited blood alcohol
concentration absent any evidence that the Intoxilyzer test was performed
within the mandatory three-hour period of the above offense, as required by
§ 885.235, Stats.[1]
We
conclude that the evidence was sufficient to show that Heckman operated a motor
vehicle on a state highway while under the influence of an intoxicant and that
the Intoxilyzer test was performed
within the mandatory three-hour period.
Consequently, we affirm.
This
case arose out of the peculiar path that Heckman chose to drive on July 8,
1995. The parties stipulated to the
following facts from the report of the arresting officer. At approximately 9:20 a.m., Carol Brott
heard a noise and looked outside her residence. She observed a man, later identified as Heckman, driving a
vehicle through a ditch running along her property. Brott observed the vehicle continue around her mound septic
system before turning and continuing across her yard. The vehicle traveled a short distance further before parking in a
field just north of the Brott property line.
Brott immediately contacted the sheriff's department because she was
unfamiliar with the driver and concerned with what she had observed and the manner
in which he parked. According to Brott,
the driver was alone.
Deputy
Daniel Knitt was dispatched to the scene and upon arrival observed Heckman, who
appeared to be sleeping, seated in the driver's seat of the running vehicle
with his foot sticking out of the driver's side window. As Knitt reached into the vehicle to turn it
off, he noticed a half full bottle of Zima propped between Heckman's legs in
his lap. After several unsuccessful
attempts, Knitt finally awakened Heckman, who appeared very confused and unsure
of what was happening. In response to
Knitt's questions, Heckman did not know where he was, where he came from, where
he was going and could not say whether it was Saturday or Sunday.
Knitt
placed Heckman under arrest for OWI based upon the circumstances of the
incident: Heckman's confusion, the
strong odor of intoxicants on his breath, his glassy eyes, his poor performance
on field sobriety tests, and Knitt's conclusion that Heckman's vehicle could
not have arrived at its present location without having traveled on the nearby
county highway. Knitt found four empty
bottles of Zima, six empty beer cans, and a full can of beer in Heckman's car.
Heckman
consented to a breath test and was found to have a blood alcohol concentration
of 0.16%. Knitt then issued Heckman a
citation for OWI and for the companion charge of operating with a prohibited
blood alcohol concentration.
Heckman
argues that the trial court erred in finding that he operated his vehicle on a
highway prior to Brott observing him drive his car alongside a county highway
in the ditch. He contends that the
State failed to prove that he was driving on a public highway, as required by
§ 346.61, Stats., because
there was no direct evidence showing that he drove on a public highway and the
circumstantial evidence offered by the State was too weak to meet the beyond a
reasonable doubt standard. He then
reasons that the State lacked evidence that the Intoxilyzer test was performed
within the mandatory three-hour period from operating on a public highway as
required by § 885.235, Stats.,
because operation was not established.
Both
issues require an examination of the evidence supporting Heckman's
conviction. An appellate court may not
overturn a judgment of 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).
This standard for reviewing the sufficiency of the evidence to support a
conviction applies equally to direct and circumstantial evidence. Id. Furthermore, 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).
The
pivotal contested issue is whether Heckman drove his motor vehicle on a public
highway while intoxicated. We conclude
that the record evidence supports a logical inference that Heckman drove his
motor vehicle on a public highway just prior to Brott observing him drive in
the ditch alongside the county highway.
Brott observed Heckman driving through the north ditch of the adjacent
county highway, and both Knitt and the trial court could reasonably infer from
that evidence that Heckman had left the county highway just prior to Brott's
observations.
Heckman
argues that because the stipulated facts do not contain direct evidence that he
had driven on a public highway, the court could logically infer that Heckman
had been in the ditch for quite some time and had then started up his vehicle
and driven it across Brott's property.
However, no evidence supports this defense hypothesis, and a trier of
fact is free to “choose among conflicting inferences of the evidence and may
... reject that inference which is consistent with the innocence of the
accused.” See Poellinger,
153 Wis.2d at 506, 451 N.W.2d at 757.
The
weight to be given the evidence is a determination for the trial court. Id. at 504, 451 N.W.2d at
756. We review the evidence in the
light most favorable to the trial court's findings. Id. We are
satisfied that there was sufficient evidence to support the reasonable
inference that Heckman drove his vehicle on a public highway just prior to
Brott's observation of him.
Because
the evidence supports the finding that Heckman was driving on a public highway,
the record also supports Heckman's conviction for operating a motor vehicle
with a prohibited blood alcohol concentration.
Heckman stipulated to the fact that the Intoxilyzer test was conducted
with breath samples obtained at 11:01 a.m. and 11:02 a.m. Because he was observed operating the
vehicle at 9:20 a.m., the test was performed well within the three-hour period
mandated by § 885.235, Stats.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.