State v. Dennis Cross

OFFICE OF THE CLERK
WISCONSIN COURT OF APPEALS
110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WISCONSIN 53701-1688
Telephone (608) 266-1880
TTY: (800) 947-3529
Facsimile (608) 267-0640
Web Site: www.wicourts.gov
DISTRICT I

November 5, 2024
To:
Hon. Jonathan D. Richards Paul C. Dedinsky
Circuit Court Judge Electronic Notice
Electronic Notice
Annice Kelly
Anna Hodges Electronic Notice
Clerk of Circuit Court
Milwaukee County Safety Building Dennis Cross
Electronic Notice 2861 N. 37th Street
Milwaukee, WI 53210-1822

You are hereby notified that the Court has entered the following opinion and order:

2023AP1284-CRNM State of Wisconsin v. Dennis Cross (L.C. # 2020CT1199)

Before Colón, J.1

Summary disposition orders may not be cited in any court of this state as precedent or

authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

Dennis Cross appeals from a judgment convicting him of operating a motor vehicle while

intoxicated (OWI) as a second offense. His appellate counsel, Annice Kelly, filed a no-merit

report pursuant to WIS. STAT. RULE 809.32 and Anders v. California, 386 U.S. 738 (1967).

Cross received a copy of the report, was advised of his right to file a response, and has elected

not to do so. Upon consideration of the report and an independent review of the record as

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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. 2023AP1284-CRNM

mandated by Anders, we conclude that the judgment may be summarily affirmed because there

is no arguable merit to any issue that could be raised on appeal. See WIS. STAT. RULE 809.21.

The State charged Cross with OWI and operating with a prohibited alcohol concentration

(PAC), both as second offenses. At trial, Whitefish Bay Police Officer Derek Bonkoski testified

that on August 10, 2020, at 9:43 p.m., he was dispatched in response to callers reporting

concerns about a silver Jeep that was on the road. The State played a 9-1-1 call for the jury.

During the recording, the caller described an impaired driver on the road who eventually hit the

car that the caller was in. Officer Bonkowski identified his own voice on the recording,

communicating with the central dispatch center.

Officer Bonkoski described observing a silver Jeep moving at a very slow speed with no

lights on. Officer Bonkoski testified that the silver Jeep was impeding traffic for other vehicles

around it. Officer Bonkoski testified that he heard the silver Jeep rear end another vehicle. He

then conducted a traffic stop of the Jeep and made contact with Cross, who was the driver.

Officer Bonkoski testified that Cross had slow, slurred speech and an open bottle of

vodka in the car. When Cross stepped out of the vehicle, Officer Bonkoski observed he was very

unsteady on his feet. Officer Bonkoski asked Cross to perform field sobriety tests but testified

that Cross could not stand during the instructional phase without almost falling over. Due to his

inability to stand, Officer Bonkoski did not conduct field sobriety tests for Cross’s safety. At

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No. 2023AP1284-CRNM

that point, Officer Bonkoski testified that he had observed enough clues that Cross was impaired

and placed him under arrest.2

Toxicology analyst Thomas Neuser also testified during Cross’s trial. He testified that

Cross’s blood sample contained .254 grams of ethyl alcohol per 100 milliliters of blood.

At the end of the three-day trial, the jury found Cross guilty of each of the crimes

charged. The circuit court subsequently dismissed the PAC charge, as required by WIS. STAT.

§ 346.63(1)(c). The court imposed and stayed a three-month sentence in the House of

Corrections and placed Cross on twelve months of probation. The court also revoked Cross’s

driver’s license for one year. This no-merit appeal follows.

The no-merit report discusses a number of issues including whether the circuit court erred

when it allowed the recording of a 9-1-1 call to be played for the jury. This became an issue

because neither the 9-1-1 caller nor the dispatcher were present to testify about the call. After

listening to the parties’ arguments, the court ruled that the recording could be played under WIS.

STAT. § 908.03(6), an exception to the hearsay rule permitting admission of certain records of

regularly conducted activity. See id. The court additionally ruled that the recording was

admissible under Davis v. Washington, 547 U.S. 813 (2006), because the remarks on the call

“were made to police in an attempt to resolve the emergency[.]” See id. at 828 (holding that 9-1-

1 caller’s statements about an altercation with a former boyfriend who had just left her home

2
The State played Officer Bonkoski’s body camera footage and separate squad camera footage
of the interaction with Cross for the jury.

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No. 2023AP1284-CRNM

were non-testimonial because their “primary purpose was to enable police assistance to meet an

ongoing emergency”).

We agree with appellate counsel’s analysis that the court did not erroneously exercise its

discretion in deciding that the recording was admissible under Davis. In light of this conclusion,

we do not need to delve into additional analysis of the court’s alternate basis for admitting the

recording.

The no-merit report additionally addresses whether Cross could challenge the sufficiency

of the evidence. We agree with counsel that there is no arguable merit to this issue. An

appellate court will not overturn a conviction “unless the evidence, viewed most favorably to the

[S]tate 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 (1990). The evidence at

trial was sufficient to support the verdict.

Lastly, we agree with counsel that there is no issue of arguable merit stemming from the

circuit court’s exercises of its sentencing discretion. The circuit court considered appropriate

sentencing objectives and imposed a sentence based on various sentencing criteria applied to the

facts of this case. See State v. Brown, 2006 WI 131, ¶26, 298 Wis. 2d 37, 725 N.W.2d 262.

Because the circuit court properly exercised its discretion, there would be no arguable merit to an

appellate challenge to the sentence.

Our review of the record discloses no other potential issues for appeal. Accordingly, this

court accepts the no-merit report, affirms the judgment, and discharges appellate counsel of the

obligation to represent Cross further in this appeal.

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No. 2023AP1284-CRNM

Upon the foregoing, therefore,

IT IS ORDERED that the judgment is summarily affirmed. See WIS. STAT. RULE 809.21.

IT IS FURTHER ORDERED that Attorney Annice Kelly is relieved of further

representation of Cross in this matter. See WIS. STAT. RULE 809.32(3).

IT IS FURTHER ORDERED that this summary disposition order will not be published.

Samuel A. Christensen
Clerk of Court of Appeals

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