City of Cedarburg v. Katherine D. Young

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 17, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1848 Cir. Ct. No. 2019CV424

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

CITY OF CEDARBURG,

PLAINTIFF-RESPONDENT,

V.

KATHERINE D. YOUNG,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Ozaukee County:
SANDY A. WILLIAMS, Judge. Affirmed.

¶1 DAVIS, J.1 Katherine D. Young appeals from an order finding her
guilty of operating while intoxicated (OWI), first offense. The questions on
appeal are: (1) whether a person may be convicted of OWI where law
enforcement did not investigate or cite that individual at the time of the offense

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version.
No. 2020AP1848

and did not testify or provide evidence at trial; and (2) if a person may be
convicted under these circumstances generally, whether the evidence supports
Young’s conviction. We hold that, by the plain terms of the statute, an OWI
conviction does not require the introduction at trial of evidence obtained by law
enforcement incident to citation or arrest (for example, chemical test results or
police officer testimony). Second, we hold that the City of Cedarburg met its
burden to show, by clear and convincing evidence, that Young was driving under
the influence. Accordingly, we affirm.

Background

¶2 Mid-morning on December 12, 2018, Young entered Cedarburg
High School, where she worked as a teacher. In short succession, Young had
several interactions with school staff. These witnesses later described Young as
smelling of alcohol and unable to walk straight or talk coherently. At the time,
each witness believed that Young was acting strangely or was likely intoxicated.
The principal brought Young into his office, called her family, and escorted her
off the premises. The evidence, which we will discuss below, suggests that Young
drove to the school but walked home. Law enforcement did not immediately
observe, investigate, or cite Young. Police began investigating the incident about
a week later; five weeks after that, Young received a citation in the mail for OWI.2

¶3 Young was found not guilty in municipal court. The City requested
a de novo trial pursuant to WIS. STAT. § 800.14(4). Young moved to dismiss,
arguing that the City could not prove the elements of the offense absent law

2
Young was cited for violating the local ordinance adopting WIS. STAT. § 346.63(1)(a),
prohibiting operating while under the influence of an intoxicant or other drug.

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enforcement’s “personal observations, chemical tests of blood or breath, [or]
observing Young operate a motor vehicle.” The trial court disagreed and denied
the motion, and the case proceeded to a bench trial. The City presented five
witnesses, all school employees; Young presented no witnesses and did not testify.
The court found Young guilty of OWI. This appeal followed.

Discussion

¶4 As relevant here, conviction for OWI as a civil offense requires
proof, by “clear, satisfactory and convincing” evidence, WIS. STAT. §§ 345.45,
800.08(3), that the defendant “dr[o]ve or operate[d] a motor vehicle while …
[u]nder the influence of an intoxicant,” WIS. STAT. § 346.63(1)(a). See also WIS
JI—CRIMINAL 2663A (“Operating a Motor Vehicle While Under the Influence of
an Intoxicant—Civil Forfeiture”). Although these cases typically originate with a
traffic stop, the statute by its plain terms does not require proof of any factual
element that can normally only be obtained incident to citation or arrest. This is in
contrast to conviction for operating with a prohibited alcohol concentration,
wherein the prosecution must show that blood or breath alcohol concentration was
above some numerical value. See WIS. STAT. §§ 340.01(1v), (46m); 346.63(1)(b);
see also, e.g., WIS JI—CRIMINAL 2660A (“Operating a Motor Vehicle With a
Prohibited Alcohol Concentration—Civil Forfeiture—0.08 grams or more”).

¶5 On appeal, Young argues that, as a matter of law, law enforcement
testimony, chemical test results, or like evidence is necessary to prove that an
individual was driving while intoxicated. But Young has not cited, and we are
unaware of, any case law to this effect—nor would such requirement seem logical
or necessary under the statutory scheme. Certainly, in the typical case, the
prosecution will rely on evidence from law enforcement to establish the elements

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of OWI, but the law does not preclude establishing these elements solely from lay
witness testimony. As the City correctly notes, any argument that such testimony
is less probative or reliable goes to the weight of that evidence, not its
admissibility. Accordingly, the question is not whether a defendant in Young’s
position can be convicted of OWI as a matter of law, but whether clear and
convincing evidence supported this OWI conviction.

¶6 Our review is deferential. We will not set aside the trial court’s
factual findings unless clearly erroneous, and we give due regard to the
opportunity of the court to judge witness credibility. WIS. STAT. § 805.17(2). In
reviewing the sufficiency of the evidence, we will not overturn the verdict unless
the evidence, viewed most favorably to the verdict, is so lacking in probative value
and force that no reasonable trier of fact could have found guilt to the requisite
degree. State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990).

¶7 The first element of the OWI offense is that the defendant was
driving a vehicle. At trial, the City played video surveillance footage from various
vantage points inside and outside Cedarburg High School. The video is not
continuous, but the following clips are clear, and there is no dispute that the person
in the video is Young. At 9:47-9:48 a.m., Young walked out of the school
building, walked through the parking lot, opened and entered a red SUV, and
drove away. At 11:31 a.m., a red SUV pulled into the parking lot and parked in
that same parking space. At 11:34 a.m., Young walked into the school entryway.
At 1:17 p.m., Young walked out of the school building and through the parking
lot. At 1:19 p.m., Young walked up to the red SUV but did not drive away.
Testimony from Associate Principal Carolyn McNerney established that Young
was assigned the parking space in which the red SUV was parked.

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¶8 On appeal, Young argues that this evidence was insufficient to
establish that she was driving because there was no footage close to 11:31 a.m. of
her actually exiting the SUV, or in which she is visible driving the SUV. But there
is no requirement that direct, as opposed to circumstantial, evidence prove this
element of the offense. See State v. Mertes, 2008 WI App 179, ¶¶10-17, 315
Wis. 2d 756, 762 N.W.2d 813 (the conclusion that a defendant under the influence
was “operating” a vehicle may rest solely on circumstantial evidence; thus, “[t]he
issue is not whether Mertes was operating the vehicle at the moment the police
approached him, but rather whether there was enough circumstantial evidence to
prove that he drove the car”). And although not required to do so, Young offered
no evidence rebutting or undermining the import of the City’s evidence (she did
not show, for example, that she got a ride back to school or had a different parking
space). In such case, the trial court reasonably declined to speculate as to how
Young may have arrived at, but without driving to, the school at the same time
that a vehicle similar or identical3 to hers drove into her assigned parking space. It
was not clearly erroneous for the court to draw the logical conclusion from the
footage, when combined with McNerney’s testimony: that Young drove her red
SUV to the school and parked in her usual spot.

¶9 The second element of the offense is that Young was under the
influence of an intoxicant while driving. Five witnesses testified at trial, all of
whom knew Young; surveillance footage established the timing of some of these
exchanges. At 11:34 a.m. on the day in question, Jennifer Batiansila, a “student

3
From our review of the video footage, the red SUV that Young enters and drives away
in at 9:48 a.m. appears identical to the red SUV driven into the lot and parked in Young’s spot at
11:31 a.m. The license plates are not visible, however, to conclusively establish that these are the
same vehicles. At the very least, these are similar-looking vehicles.

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supervisor” in charge of school security, was sitting at a desk in front of an
entrance when Young arrived. Batiansila observed Young try to grab the door
handle and miss: “[I]t seemed like she struggled to reach the handle.” As Young
entered, Batiansila “made a welcome back comment like I usually do and [Young]
stated something back that wasn’t coherent. I couldn’t quite understand what she
was saying. It sounded more like a mumble.” Batiansila “caught a whiff of an
alcoholic smell.”

¶10 Concerned, Batiansila “brought up the cameras … to, kind of, follow
her down the hall” and saw Young “swaying a little bit left and right” in a manner
distinct from her usual “direct” or “quick, straight walk[].” Batiansila watched
Young through the camera as Young “met someone at the end of the hall and
leaned up against the wall.” Batiansila observed, “[I]t seemed to me like [Young]
was having a hard time standing on her own.” Batiansila saw Associate Principal
Trent Burg and shared with him her concern that Young “was some level of
drunk.”

¶11 Robin Vandinter, an administrative assistant, stopped Young in the
hallway around 11:35 a.m. to discuss a student matter. Young “was slurring her
speech quite a bit and had to brace herself against the doorway as she was talking
to me.” Vandinter “felt that there was something wrong with Ms. Young, that she
needed some attention” and went to notify Adam Kurth, the principal. A short
time later, Vandinter was sitting at a desk outside Kurth’s office while Kurth and
Young were inside the office. Vandinter “could smell alcohol when the office
door opened at one point”; the smell was “[s]trong enough for me to smell it at my
desk which was probably about 15 feet away.”

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¶12 Kurth testified that he went to find Young after Vandinter alerted
him of Young’s behavior. He observed Young “staggering down the hallway,”
“not able to keep a straight line.” Kurth went into Young’s classroom to wait for
her. Moments later, when Young walked through the door, Kurth noticed “a very
distinct odor of alcohol,” that Young “continued to stagger,” and that she had “a
delayed reaction to me being in the classroom.” Young “staggered again over to
her desk” and sat down. Kurth tried talking to Young, but Young “couldn’t
maintain eye contact, was very slouched in her chair, and her demeanor really
verified that she was under the influence at the time.” When asked, Young denied
being drunk, but her speech was “[s]lurred, delayed.” Kurth asked Young to come
to his office; she refused at first but eventually complied. This interaction lasted
about five minutes, from 11:36 a.m. to 11:41 a.m.

¶13 Once they were in Kurth’s office, Kurth repeatedly asked Young if
she was intoxicated, but she denied being so. Young was “defensive” and “a little
bit aggressive.” Kurth asked Associate Principals McNerney and Berg to wait
with Young while Kurth stepped out of the office. Kurth was away for about
fifteen minutes; when he walked back into his office, “the smell of alcohol was
extremely apparent,” and Young “was sitting in a very slouched manner.” Young
admitted to drinking the night before but not that day. She wrote out a statement
of her movements on that day; the handwriting was “[s]loppy” and “not reflective
of her typical handwriting.” Young “continued to ask why she was there.”

¶14 School officials called Young’s mother to pick her up; when Young
learned that they had done so, she “responded very inappropriately” and began
using profanity. From Kurth’s observation, Young’s affect remained “not
something that would be typical of a staff member”: her speech was slurred, her
skin “discolored,” her odor “very apparent,” and her posture “very slouched.”

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No. 2020AP1848

Young’s mother arrived and school authorities escorted Young outside, but Young
was “very upset,” walked away, would not leave with her mother, and tried to hide
behind some trees. After her mother left, Young tried to open her SUV door but
could not (her keys had been confiscated) and eventually left on foot.

¶15 Associate Principal McNerney testified that she was present with
Young in Kurth’s office. When McNerney walked into the office, she “could
immediately smell alcohol in the room.” McNerney noticed that Young’s speech
was slurred and her face flushed. Young “kept asking what was going on” and “if
she could get back to her class”; McNerney repeatedly responded “that we were
concerned … and that [Young] needed to stay with us and that her students were
fine.” This conversation repeated for about ten or fifteen minutes, with Young
“ask[ing] the same questions … three to five times maybe” about why she was
there. At one point, Young tried to “push [McNerney] out of the way” so that she
could leave, but then she sat back down.

¶16 When McNerney told Young that she thought Young was drunk,
Young denied being so and explained that she might smell like alcohol because
she drank the night before. McNerney was “concerned” by this explanation
because “there was no reason [that Young] should still have what appeared to be
an intoxicated reaction to the alcohol she had the night before.” Upon learning
that her mother would be coming to the school, Young “was very angry,” “swore,”
and “dropped the ‘F’ bomb.” Based on Young’s presentation and behavior,
McNerney was “certain” that Young was intoxicated.

¶17 Associate Principal Berg testified that he first encountered Young in
Kurth’s office. Berg stated, “You could smell alcohol and [Young] just had some
different behaviors…. Her speech was slurred and … several times she’d ask[] if

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it was okay if she left, and we said we wanted her to stay.” The smell of alcohol
“was strong enough that I could smell it from … a few feet away.” Young
“seemed just very uncomfortable with being in the office interacting with us. She
was saying, you know, I didn’t do anything, why can’t I leave…. [H]er speech
was slurred … just some unusual behavior that you wouldn’t normally see.” As
Young described her day, she seemed “a little bit off” and “not clear on every
single detail of what was going on with her day.” Berg was “pretty sure” that the
smell of alcohol was coming from Young’s person and not her coat.

¶18 Young did not testify or present witnesses. Thus, the trial court
heard five compatible, unrebutted, and unbiased4 accounts of Young’s physical
appearance and behavior, all consistent with her being inebriated, based on
interactions beginning within minutes of her driving to the school. The trial court
had no reason to doubt these observations or any related conclusions that Young
was intoxicated. See State v. Burkman, 96 Wis. 2d 630, 645, 292 N.W.2d 641
(1980) (“[A] lay witness, who has had the opportunity to observe the facts upon
which he bases his opinion, may give his opinion as to whether a person at a
particular time was or was not intoxicated.”). Nor, given this testimony, did the
court err in drawing its own conclusion that Young was intoxicated. If not
conclusive, the combined descriptions of Young were, at the very least, consistent
with her being under the influence: Young had a staggered walk, delayed
reactions, slurred speech, slouched posture, and flushed face; smelled strongly of
alcohol; could not maintain eye contact; could not write in her normal
handwriting; was by turns confused and aggressive; and generally behaved in an

4
No evidence of bias was presented or elicited on cross-examination.

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No. 2020AP1848

unusual and unprofessional manner. At trial, Young argued that perhaps she
smelled of alcohol from the night before, or perhaps there was some medical
explanation for her condition, but the court heard no evidence to this effect. Thus,
the court was not clearly erroneous in reaching the most likely explanation for
Young’s looking and acting drunk, which was that she was drunk.

¶19 Young argues that, even assuming she drove to the school, and even
assuming she was intoxicated upon entering the school, the evidence cannot
establish that she drove while intoxicated. Young posits that she could have drunk
enough alcohol between 11:31 a.m. and 11:34 a.m. to reach the level of
intoxication observed by the testifying witnesses. The trial court implicitly
rejected this argument, and we find that it did not err in doing so. Three of the
City’s witnesses saw Young within roughly five minutes of her parking her car,
and Batiansila saw Young at about 11:34 a.m., within three minutes of parking.
These witnesses described a degree of intoxication inconsistent with Young’s
having had her first drink three to five minutes prior.5 The trial court was not
clearly erroneous in concluding that Young was already intoxicated when she
drove to the school.

¶20 Finally, Young argues that, if we “[a]ffirm[] the process” wherein
she was found guilty, it would set a “dangerous precedent.” In Young’s view, it is
fundamentally unfair that a person could be cited and convicted for OWI based

5
In arguing otherwise, Young points to the fact that, she says, she got a blood draw
earlier that day. We will assume that Young did get a blood draw, but without evidence on this
point, such as testimony from her physician, we cannot infer that some physical condition caused
her to become severely inebriated in an unusually short timeframe. The trial court was not clearly
erroneous in concluding that Young was already drunk before she parked her car.

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solely on lay witness testimony and circumstantial evidence.6 We see no merit in
such broad assertions. Regardless of whether law enforcement testifies, or
whether the evidence is direct or circumstantial, the prosecution must prove the
same elements of the OWI offense to the requisite degree of guilt. That there are
not more cases similar to Young’s speaks only to the difficulty—in most
situations—in convicting a defendant without chemical test results or police
officer testimony. Whether cases should be brought generally in the absence of
such evidence is a matter of prosecutorial discretion on which we make no
comment. We hold only that here, the video footage of Young’s SUV and the
consistent and unrebutted lay witness testimony was sufficient evidence
supporting the OWI conviction.7

6
Young further implies that some error lies with the length of time between offense and
citation (forty-three days) and with the fact that the citation was mailed to her. As she cites to no
law and does not develop these arguments, we will not address them. See State v. Pettit, 171
Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).
7
We reject Young’s argument that her Sixth Amendment right to confrontation was
violated when the citing police officer did not testify and that we should accordingly reverse
under the plain error doctrine. See State v. Jorgensen, 2008 WI 60, ¶¶21-23, 34, 310 Wis. 2d
138, 754 N.W.2d 77. The Sixth Amendment applies only to criminal prosecutions. See id., ¶34
& n.10-11; see also Town of Geneva v. Tills, 129 Wis. 2d 167, 176-77, 384 N.W.2d 701 (1986)
(right to confrontation inapplicable to civil forfeiture action for operating under the
influence/illegal blood alcohol concentration). More fundamentally, the City’s case was not
based on any out-of-court statement that might raise Sixth Amendment concerns. The citation
was a pleading that was not and could not be admitted into evidence, and no other statement by
the citing police officer was admitted into evidence. See State v. Mattox, 2017 WI 9, ¶24, 373
Wis. 2d 122, 890 N.W.2d 256 (“[A] defendant’s right to confrontation is violated if the trial court
receives into evidence out-of-court statements by someone who does not testify at the trial if
those statements are ‘testimonial’ and the defendant has not had ‘a prior opportunity’ to cross-
examine the out-of-court declarant.”) (emphasis added; citation omitted); see also City of
Cedarburg v. Hansen, 2020 WI 11, ¶27, 390 Wis. 2d 109, 938 N.W.2d 463 (“[T]he proceeding
was commenced by Hansen’s civil traffic citations, which are the pleadings that alleged that the
OWI … violation[] arose under an ordinance.”) (emphasis added). Because no Sixth Amendment
right was implicated in this case, we have no reason to reach the plain error issue raised by
Young.

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By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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