State v. Thomas W. Batterman

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.
November 28, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP181-CR Cir. Ct. No. 2018CM752

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

THOMAS W. BATTERMAN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Marathon County:
MICHAEL H. BLOOM, Judge. Affirmed.

¶1 GILL, J.1 Thomas Batterman appeals a judgment of conviction,
entered upon a jury’s verdict, for operating a motor vehicle with a prohibited
alcohol concentration (PAC), as a second offense. Batterman argues that the

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2022AP181-CR

circuit court erred by excluding evidence of his performance on two field sobriety
tests. He asserts that this evidence was relevant to show that his blood alcohol
concentration (BAC) did not, in fact, exceed the legal limit of .08. He also
contends that the court’s exclusion of this evidence violated his constitutional right
to present a defense. We reject Batterman’s arguments and affirm.

BACKGROUND

¶2 The State filed a criminal complaint charging Batterman with
operating a motor vehicle while intoxicated (OWI), as a second offense. The State
later filed an amended complaint that added a PAC charge, as a second offense.

¶3 According to the amended complaint, at 10:14 p.m., an officer
observed a vehicle traveling at forty-six miles per hour in a location where the
posted speed limit was thirty-five miles per hour. The officer initiated a traffic
stop and identified Batterman as the driver of the vehicle. The officer noticed a
strong odor of intoxicants coming from the vehicle and observed that Batterman’s
eyes were glassy and his speech was slightly slurred. When asked how much he
had to drink, Batterman responded, “[N]ot a lot.”

¶4 The officer then administered three field sobriety tests—the
horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the
one-leg-stand test. According to Batterman, the officer observed five out of six
clues of impairment on the HGN test, one clue on the walk-and-turn test, and two
clues on the one-leg-stand test. Following the tests, the officer placed Batterman
under arrest for OWI and transported him to a hospital for a blood draw.
Subsequent testing of the sample showed a BAC of .124.

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¶5 Prior to trial, Batterman moved to exclude all evidence regarding his
performance on the HGN test. He argued that the results of that test were invalid
because the officer failed to comply with the proper procedures for administering
the test. Following a hearing, the circuit court agreed and granted Batterman’s
motion to exclude evidence regarding his performance on the HGN test.

¶6 Five days before Batterman’s jury trial, the State moved to dismiss
the OWI charge and proceed to trial on the PAC charge only. On the morning of
the first day of trial, the circuit court granted the State’s motion and dismissed the
OWI charge with prejudice.

¶7 The circuit court and the parties then discussed the effect that the
dismissal of the OWI charge would have on the evidence presented at trial.
Batterman’s attorney explained:

It’s my understanding, based on the comments the State
made off the record in chambers as well as the Court’s own
comments regarding the same subject matter, that because
the OWI charge has now been dismissed with prejudice, it
renders irrelevant any testimony regarding the officer’s
observations of Mr. Batterman’s condition, his performance
on field sobriety tests, what he was actually arrested for at
the scene, et cetera.

Batterman’s attorney argued that the court should not exclude this evidence
because doing so would “tell[] an incomplete story,” causing the jury to speculate
about the reason for Batterman’s arrest.

¶8 Batterman’s attorney also argued that Batterman’s performance on
the walk-and-turn and one-leg-stand tests was “exculpatory as it relates to the
prohibited alcohol concentration charge” because the number of clues observed on
those tests “correlate[s] … to the person being above or below the legal limit in

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Wisconsin.” According to Batterman’s attorney, the officer’s observation of
relatively few clues during the walk-and-turn and one-leg-stand tests undermined
the State’s claim that Batterman’s BAC was over the legal limit at the time of
driving, despite the blood test showing a BAC of .124.

¶9 The State, in turn, argued that following the dismissal of the OWI
charge, there were only two elements at issue in Batterman’s trial: whether
Batterman operated his vehicle on a roadway and whether he did so with a PAC.
The State asserted that introducing evidence about the officer’s investigation
during the traffic stop, including the field sobriety tests, would “confuse the issues
and mislead the jury” regarding the elements of the PAC charge.

¶10 The State also argued that Batterman’s performance on the
walk-and-turn and one-leg-stand tests was irrelevant to whether Batterman had a
PAC because “[i]t is not unusual or unheard of for someone to be considered not
impaired or even for an OWI not to be issued[,] but for [the person] to eventually
have a prohibited alcohol concentration.” In addition, the State asserted that the
defense had not made an offer of proof as to how it would link Batterman’s
performance on the tests to his BAC at the time of driving. The State emphasized
that there was “no expert … coming in to testify that there was any issue with the
[blood test] results from the State Lab of Hygiene.”

¶11 In response, Batterman’s attorney asserted that any officer who has
undergone National Highway Traffic Safety Administration training “is instructed
if they see X number of clues on the walk-and-turn or the one-leg[-]stand, they can
conclude that the person has a 75 percent probability of being above a .10 or a .08,
whatever the case may be.” Counsel then argued:

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No. 2022AP181-CR

If a person doesn’t exhibit a sufficient number of clues on
those tests and the tests are linked to BAC levels at least
broadly enough to categorize them above or below, that’s
relevant to undermining the jurors’ faith in what the State is
asking the jury to conclude based on the blood test result.

¶12 The circuit court ruled that evidence regarding Batterman’s
performance on the walk-and-turn and one-leg-stand tests would not be admitted
at trial. The court acknowledged that, generally speaking, “the training that
officers receive regarding the administration of field sobriety tests … indicates
that a certain number of clues will indicate X probability that the subject has a
blood alcohol concentration of whatever.” The court reasoned, however, that “[i]t
is a different question scientifically as to whether the absence of clues correlates in
the same way with a person having X percent probability of being below a
prohibited alcohol concentration.” The court stated the defense had not presented
“an empirical or other evidentiary basis” to support an argument that the “absence
of clues” means that a person does not have a PAC. Accordingly, the court stated
it could not “find that … the absence of clues correlates with a non-prohibited
alcohol concentration in the same way that the presence of clues indicates to
officers a certain percentage likelihood that there is a prohibited alcohol
concentration.” The court also reasoned, “Normally a blood alcohol concentration
result is challenged with a curve defense and whatnot. That’s based on numbers
of drinks and specific time frames and so it is an empirical process that the analyst
can respond to.”2

2
This court has previously explained the concept of a “curve” defense as follows:

(continued)

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¶13 The jury ultimately found Batterman guilty of the PAC charge.
Batterman now appeals.

DISCUSSION

¶14 As noted above, Batterman argues that the circuit court erroneously
concluded that evidence regarding his performance on the walk-and-turn and
one-leg-stand tests was irrelevant to the PAC charge and was therefore
inadmissible. Batterman also contends that the court’s exclusion of this evidence
violated his constitutional right to present a defense.

I. Relevance

¶15 Evidence is relevant when it has “any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” WIS. STAT.

[A] person goes through three stages of processing
alcohol: absorption, plateau, and elimination. These stages can
be represented on a graph as a curve with the alcohol content
rising until it peaks and then falling as the body eliminates the
alcohol. Thus, a person who is in the process of absorbing
alcohol may be under the legal limit while driving but
subsequently exceed the limit when a test is taken.

State v. Brown, No. 2016AP83-CR, unpublished slip op. ¶5 (WI App Dec. 14, 2016); see also
WIS. STAT. RULE 809.23(3)(b) (an unpublished opinion authored by a single judge and issued on
or after July 1, 2009, may be cited for its persuasive value).

Batterman did not argue that the circuit court should admit evidence regarding his
performance on the walk-and-turn and one-leg-stand tests because that evidence was relevant to a
curve defense, nor has he raised that argument on appeal. Furthermore, Batterman did not
expressly raise a curve defense at trial. He merely argued, more generally, that the blood test
result did not prove beyond a reasonable doubt that he had a PAC at the time of driving because
his blood was drawn fifty minutes after he operated his vehicle.

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No. 2022AP181-CR

§ 904.01. “Evidence which is not relevant is not admissible.” WIS. STAT.
§ 904.02.

¶16 “A circuit court has broad discretion in determining the relevance
and admissibility of [proffered] evidence.” State v. Hammer, 2000 WI 92, ¶43,
236 Wis. 2d 686, 613 N.W.2d 629. “An appellate court will sustain an evidentiary
ruling if it finds that the circuit court examined the relevant facts, applied a proper
standard of law, used a demonstrated rational process, and reached a conclusion
that a reasonable judge could reach.” State v. Hunt, 2003 WI 81, ¶34, 263
Wis. 2d 1, 666 N.W.2d 771. The question is not whether this court, as an initial
matter, would have admitted the evidence in question, but whether the circuit court
exercised its discretion in accordance with accepted legal standards and the facts
of record. Hammer, 236 Wis. 2d 686, ¶43.

¶17 In this case, the circuit court did not erroneously exercise its
discretion by determining that evidence regarding Batterman’s performance on the
walk-and-turn and one-leg-stand tests was not relevant to the PAC charge and was
therefore inadmissible. To convict Batterman of the PAC charge, the State needed
to prove two elements: (1) that Batterman operated a motor vehicle on a highway;
and (2) that Batterman had a PAC—in this case, an alcohol concentration above
.08—at the time he operated a motor vehicle. See WIS JI—CRIMINAL 2660
(2020). Because the OWI charge was dismissed, the State did not need to prove
that Batterman was under the influence of an intoxicant at the time he operated his
vehicle—that is, that his ability to operate a vehicle was impaired because of his
consumption of an alcoholic beverage. See WIS JI—CRIMINAL 2663 (2020).

¶18 The circuit court reasonably determined that while evidence
regarding Batterman’s performance on the walk-and-turn and one-leg-stand tests

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No. 2022AP181-CR

would have been relevant as to whether Batterman was intoxicated, it was not
relevant as to whether his BAC exceeded the legal limit. The purpose of
administering field sobriety tests “is to determine whether a suspect can follow
directions and whether the person can divide his or her attention and exhibit fine
motor skills,” given that the impairment of these abilities is indicative of
intoxication. City of West Bend v. Wilkens, 2005 WI App 36, ¶17, 278 Wis. 2d
643, 693 N.W.2d 324. However, “a person can commit a PAC offense without
being or appearing intoxicated or impaired.” State v. Blatterman, 2015 WI 46,
¶73, 362 Wis. 2d 138, 864 N.W.2d 26 (Ziegler, J., concurring). “Different persons
will be affected differently by the same quantity of alcohol beverages. And
different people show intoxication differently even if they are at the same BAC
level. A consumer may have a blood alcohol level of .1% or higher and yet reveal
no outward signs of intoxication.” Doering v. WEA Ins. Grp., 193 Wis. 2d 118,
146 n.31, 532 N.W.2d 432 (1995). Consequently, the fact that a person performs
relatively well on field sobriety tests—exhibiting only one or two clues of
impairment—does not necessarily indicate that the person does not have a PAC.

¶19 The circuit court explained that while it is generally known that “a
certain number of clues will indicate X probability” that a person has a PAC,
Batterman had not presented any evidence to support a determination that the
number of clues observed by the officer in this case showed a particular
probability that Batterman did not have a PAC. Batterman asserts that the court’s
reasoning in this regard was flawed because “[o]bviously, the fewer clues
displayed on any test, the less likely it is that a person’s alcohol concentration will
be above the prohibited limit.” Batterman did not provide any evidence in support
of this assertion in the circuit court, however, nor has he done so on appeal. While
it might be obvious that a lesser number of clues on a field sobriety test correlates

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No. 2022AP181-CR

with a lesser degree of intoxication or impairment, it is not self-evident that a
lesser number of clues also correlates with a person having a BAC below the legal
limit. See Wilkens, 278 Wis. 2d 643, ¶17 (stating that field sobriety tests “are
observational tools, not litmus tests that scientifically correlate certain types or
numbers of ‘clues’ to various blood alcohol concentrations”).

¶20 In his reply brief, Batterman posits that evidence linking his
performance on the field sobriety tests to a BAC below the legal limit was
unnecessary because it is “common sense” that the absence of clues on a field
sobriety test correlates with a lower BAC. In support of this contention,
Batterman presents a hypothetical scenario regarding a law enforcement officer
“running a stationary radar trap on a cloverleaf highway off-ramp” who observes a
vehicle entering the off-ramp at what the officer believes is a speed exceeding the
recommended limit of thirty miles per hour. The officer’s radar gun indicates that
the vehicle is traveling at ninety miles per hour. Batterman asks us to “[a]ssume”
that

because of the tight turning radius of the cloverleaf
off-ramp, it is patently unreasonable to believe the curve
could have been negotiated by any vehicle travelling at
three times the recommended speed. Any vehicle
travelling that fast would likely have flown off the radius of
the ramp into the abutting culvert.

¶21 Batterman asserts that, in this hypothetical, the facts regarding the
“lay of the land” are inconsistent with the officer’s radar reading of ninety miles
per hour, “just as an individual’s exceptional performance on field sobriety tests
might be inconsistent with the value of a blood test result returned by a state
laboratory.” Regardless of whether Batterman’s speeding hypothetical is relevant,
we are not necessarily convinced that any correlation between a low number of
clues on a field sobriety test and a BAC below the legal limit is self-evident or a

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No. 2022AP181-CR

matter of “common sense.” While it is not beyond the comprehension of an
average juror that a defendant’s performance on field sobriety tests may be
indicative of intoxication, intoxication is not an element of a PAC charge. See id.,
¶1 (stating that field sobriety tests assist officers in “discerning various indicia of
intoxication” and that “it is not beyond the ken of the average person to understand
such indicia and to form an opinion about whether an individual is intoxicated”).

¶22 Batterman also contends that the circuit court’s reasoning was
inconsistent because “if there is a correlation between the clues exhibited and a
person having ‘a certain percentage likelihood that there is a prohibited alcohol
concentration,’” then “despite the exhibited number of clues, there always exists a
percentage possibility that the alcohol concentration is not correlated to the
number of observed clues because none of the field sobriety tests are 100%
accurate.” Batterman’s concession that field sobriety tests are not always accurate
does not support his claim that his performance on the field sobriety tests in this
case was probative of whether he had a PAC; rather, his concession that field
sobriety tests may be inaccurate supports a determination that they are not relevant
to showing whether his BAC exceeded the legal limit.

¶23 Ultimately, in determining that Batterman’s performance on the
walk-and-turn and one-leg-stand tests was not relevant to the PAC charge, the
circuit court applied the relevant legal standards to the facts of record and used a
rational process to reach a reasonable conclusion. As such, we cannot conclude
that the court erroneously exercised its discretion by excluding this evidence.

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II. Constitutional Right to Present a Defense

¶24 Batterman also argues that the circuit court’s exclusion of evidence
regarding his performance on the walk-and-turn and one-leg-stand tests violated
his constitutional right to present a defense. “Every defendant in a criminal case
has the right under the Sixth Amendment to present his or her defense.” State v.
Ward, 2011 WI App 151, ¶16, 337 Wis. 2d 655, 807 N.W.2d 23. Whether a
circuit court’s exclusion of evidence violated that right is a question of
constitutional fact that we review independently. State v. Wilson, 2015 WI 48,
¶47, 362 Wis. 2d 193, 864 N.W.2d 52.

¶25 As an initial matter, we note that it appears Batterman forfeited his
argument that the circuit court’s evidentiary ruling violated his constitutional right
to present a defense by failing to raise that argument in the circuit court.
Batterman does not cite any portion of the record showing that he raised this
argument below, and we have not found anything in the record showing that he
did so. We need not address arguments raised for the first time on appeal. See
State v. Van Camp, 213 Wis. 2d 131, 144, 569 N.W.2d 577 (1997); see also State
v. Rogers, 196 Wis. 2d 817, 827, 539 N.W.2d 897 (Ct. App. 1995) (“We will
not … blindside [circuit] courts with reversals based on theories which did not
originate in their forum.”).

¶26 Regardless, Batterman’s constitutional argument also fails on the
merits. The constitutional right to present evidence is not absolute. State v.
Pulizzano, 155 Wis. 2d 633, 646, 456 N.W.2d 325 (1990). “Confrontation and
compulsory process only grant defendants the constitutional right to present
relevant evidence not substantially outweighed by its prejudicial effect.” Id.
(emphasis added). Here, we have already concluded that the circuit court did not

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erroneously exercise its discretion by concluding that the evidence in question was
not relevant to the PAC charge. As such, the exclusion of the evidence did not
violate Batterman’s constitutional right to present a defense.

By the Court.—Judgment affirmed.

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

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