Clark County v. James T. Kettner

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.
December 21, 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 Nos.
2023AP160 Cir. Ct. Nos. 2022TR124
2022TR520
2023AP161 2022TR120
2023AP162
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

NOS. 2023AP160
2023AP161

CLARK COUNTY,

PLAINTIFF-RESPONDENT,

V.

JAMES T. KETTNER,

DEFENDANT-APPELLANT.

NO. 2023AP162

IN THE MATTER OF THE REFUSAL OF JAMES T. KETTNER:

CLARK COUNTY,

PLAINTIFF-RESPONDENT,

V.
Nos. 2023AP160
2023AP161
2023AP162

JAMES T. KETTNER,

DEFENDANT-APPELLANT.

APPEALS from judgments of the circuit court for Clark County:
LYNDSEY BRUNETTE, Judge. Affirmed.

¶1 NASHOLD, J.1 James T. Kettner, pro se, appeals three traffic
forfeiture judgments. Specifically, Kettner appeals judgments convicting him of
operating a motor vehicle with a prohibited alcohol concentration and operating a
motor vehicle without a valid license, and also appeals a revocation judgment for
unlawfully refusing to submit to chemical testing. Kettner argues that these
judgments should be reversed because there was an “open records violation” that
prevented him from presenting video evidence that “would have proved [his]
innocence.” I reject Kettner’s argument and affirm.

BACKGROUND

¶2 The following facts are from the testimony at the bench trial held on
December 16, 2022. At approximately 1:25 a.m. on January 23, 2022, two Clark
County officers responded to a report of a disabled vehicle in the ditch. Upon arrival
at the scene, the officers discovered the disabled vehicle and also noticed a

1
These appeals are decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2021-
22). All references to the Wisconsin Statutes are to the 2021-22 version. On this court’s own
motion, these appeals were consolidated for briefing and disposition by an order dated August 25,
2023. See WIS. STAT. RULE 809.10(3).

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Silverado, later identified as belonging to Kettner, parked nearby with its lights on
and its motor running.

¶3 The officers approached the Silverado and encountered Kettner
standing outside the driver’s side door. A woman, later identified as Kettner’s
girlfriend and the owner of the disabled car, was seated in the passenger seat of the
Silverado. Kettner told law enforcement that he had come to the scene to lock up
his girlfriend’s car. Kettner subsequently told one of the officers that he had not
been driving the Silverado.

¶4 An officer observed that Kettner was unsteady on his feet, that his
speech was slurred, and that he smelled of intoxicants. Following his refusal to
perform field sobriety testing, Kettner was placed under arrest on suspicion of
operating a motor vehicle while impaired (OWI). The officer read Kettner the
statutory “Informing the Accused” form and requested that Kettner take a breath
test. See WIS. STAT. § 343.305(4). Kettner refused to submit to the requested test.
Law enforcement obtained a warrant for a blood test, and the blood drawn pursuant
to that warrant showed a blood alcohol concentration of 0.109, which is above the
legal limit of .08. See WIS. STAT. § 340.01(46m)(a); WIS. STAT. § 346.63(1)(b).
Law enforcement also learned that Kettner’s driver’s license was expired.

¶5 Kettner was issued a civil notice of intent to revoke his operating
privilege under WIS. STAT. § 343.305(9)(a) based on his refusal to take a chemical
test. Kettner was also cited for first-offense OWI under WIS. STAT. § 346.63(1)(a),
first-offense operating a motor vehicle with a prohibited alcohol concentration
(PAC) under § 346.63(1)(b), and operating a motor vehicle without a valid license
under WIS. STAT. § 343.05(3)(a). Kettner, proceeding pro se, requested a refusal
hearing and a trial on all three citations.

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2023AP161
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¶6 On December 5, 2022, the circuit court held a pretrial hearing. During
the hearing, Kettner represented that he had requested “evidence” but that he was
“missing a bunch of that evidence.” Kettner did not specify what evidence had not
been provided, and he did not ask the court for any relief based on the missing
evidence. The court noted that, because this was a traffic forfeiture proceeding,
Kettner was not entitled to pretrial discovery. See WIS. STAT. § 345.421(2) (in
traffic forfeiture cases, “[n]either party is entitled to pretrial discovery” except under
limited circumstances pursuant to motion); see also WIS. STAT. § 343.305(9)(a)
(“[n]either party is entitled to pretrial discovery in any refusal hearing” except under
limited circumstances pursuant to motion). The court told Kettner that he would
have to obtain the evidence he sought “in whatever fashion you can.”

¶7 A bench trial on all matters was held on December 16, 2022. During
the hearing, Kettner admitted to drinking alcohol on the date of the incident, but
testified that he had not driven his Silverado. Specifically, Kettner testified that he
had only been a passenger, and that the driver was a man whom Kettner had met for
the first time that night while ice fishing and whom Kettner knew only as “Tim.”
According to Kettner, “Tim” fled when the officers arrived, and Kettner’s later
attempts to locate and identify the man were unsuccessful. The two Clark County
officers testified that they did not encounter anyone at the scene other than Kettner
and his girlfriend, and did not observe any indication (such as footprints in the newly
fallen snow) that a third individual had been present and had fled the scene. The
circuit court found that the officers had arrived at the scene within a minute or two
of Kettner’s arrival.

¶8 Kettner testified that he had requested evidence pertaining to the
incident from the State and that he had received everything he requested except for

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2023AP162

alleged dash camera video and video from an officer’s body camera that, according
to Kettner, shows him telling the officer he was not driving the Silverado. Kettner
testified that the missing video would have shown him “repetitively telling” the
officer that “I wasn’t operating the truck.” The State represented that it had given
Kettner “everything we had” and that, as noted in the officer’s report, the requested
body camera video footage did not exist because “when they went to download the
footage[,] the first section of the incident was not on camera” due to “an issue with
the body cam.”

¶9 The circuit court did not find credible Kettner’s testimony that “Tim”
had driven Kettner’s Silverado and then fled, and instead found that Kettner had
been driving. Among other reasons, the court noted that the officers who arrived at
the scene within minutes of the Silverado’s arrival saw no indication that anyone
had fled, and there was no evidence that Kettner told the officers that “Tim” had
been driving the Silverado. The court found Kettner guilty of OWI, operating with
a PAC, and operating without a valid license. The court also determined that
Kettner’s refusal to take a chemical test was unreasonable. The court entered
judgments convicting Kettner of operating with a PAC and operating after
revocation,2 and also entered a revocation judgment for unlawfully refusing to
submit to chemical testing. Kettner appeals.

DISCUSSION

¶10 Kettner argues that “there was an open records violation where video
evidence was withheld and [trial] commenced without it.” According to Kettner’s
2
The circuit court dismissed the OWI because it entered judgment on the PAC violation.
See WIS. STAT. § 346.63(1)(c).

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half-page brief, he did not receive “any video footage from any of the cameras,” the
“trial should not have taken place” until he received the evidence, and this court
should “declare a mistrial” based on the alleged open records violation.3

¶11 Kettner’s argument fails for at least two independent reasons. First,
Kettner’s argument fails because Kettner never moved for a mistrial. A party
forfeits the opportunity “to seek a new trial by not moving for a mistrial” before a
verdict. Gaethke v. Pozder, 2017 WI App 38, ¶37, 376 Wis. 2d 448, 899 N.W.2d
381. “[W]hen a party timely objects and moves for a mistrial, the [circuit] court has
the opportunity to consider the nature of the alleged error and arguments related to
it and take appropriate corrective action, if any is needed,” but a party that fails to
move for a mistrial does “not afford the circuit court this opportunity.” Id.

¶12 Kettner did not raise the issue of the missing video evidence until he
testified about the missing video at trial.4 He did not move for a mistrial, or
expressly seek any other relief, at that time. Accordingly, the circuit court had no
opportunity to evaluate any arguments for or against a mistrial. The court of appeals
generally will not reverse circuit courts “based on theories which did not originate

3
As the State notes, Kettner’s brief fails to comply with multiple rules of appellate
procedure. For example, Kettner’s brief does not contain a “statement of the case” that sets forth
the “procedural status of the case leading up to the appeal; the disposition in the [circuit] court; and
a statement of facts relevant to the issues presented for review, with appropriate references to the
record,” WIS. STAT. RULE 809.19(1)(d), and Kettner filed no appendix “containing, at a minimum,
the findings or opinion of the circuit court, limited portions of the record essential to an
understanding of the issues raised,” RULE 809.19(2)(a). The State argues that this court should
summarily affirm the circuit court judgments due to the deficiencies in Kettner’s brief. Kettner
failed to file a reply brief; thus, I could deem the State’s argument conceded. See United Coop. v.
Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (lack of a reply to
respondent’s arguments may be taken as a concession). Nevertheless, I address and reject Kettner’s
argument.
4
At the pretrial conference, Kettner made a vague reference to “missing a bunch of …
evidence,” but he did not explain what evidence he was missing and he did not seek any relief.

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Nos. 2023AP160
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in their forum.” State v. Rogers, 196 Wis. 2d 817, 827, 539 N.W.2d 897 (Ct. App.
1995). I conclude that Kettner has forfeited his argument that he is entitled to a
mistrial by failing to request a mistrial before the circuit court, and I discern no
reason to overlook this forfeiture.

¶13 Second, even addressing Kettner’s forfeited argument, Kettner has
failed to explain why the purported open records violation would entitle him to a
mistrial. In determining whether a mistrial is appropriate, a court “must consider
the entire proceeding and determine whether the claimed error is sufficiently
prejudicial to warrant a new trial.” State v. Adams, 223 Wis. 2d 60, 83, 588 N.W.2d
336 (Ct. App. 1998). Kettner has failed to show that there was any error in the
circuit court proceeding, or that any error was prejudicial.

¶14 Under Wisconsin open records law, “[e]ach authority, upon request
for any record, shall, as soon as practicable and without delay, either fill the request
or notify the requester of the authority’s determination to deny the request in whole
or in part and the reasons therefor.” WIS. STAT. § 19.35(4)(a). If an authority does
not timely provide a public record after a written request, a party may file a writ of
mandamus seeking a court order compelling disclosure. See WIS. STAT. § 19.37(1).
Thus, Kettner’s statutory remedy for the alleged open records violation would have
been to commence a separate proceeding by writ of mandamus. Kettner does not
cite any authority, or develop any argument, for the proposition that the State’s
failure to comply with open records law in connection with a traffic forfeiture
proceeding entitles the defendant to any relief in that traffic forfeiture proceeding.
See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (we need
not consider arguments “unsupported by references to legal authority” or arguments
supported only by “general statements” rather than “legal reasoning”). In any event,

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Nos. 2023AP160
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Kettner had nearly a year to exercise his legal rights under open records law—the
incident occurred in January 2022, and trial was held eleven months later, in
December 2022. Kettner offers no explanation for his failure to pursue the statutory
open records procedures available to him during that time, or for his failure to seek
a continuance of the trial to obtain the videos if he believed they were crucial to his
defense.

¶15 In addition to failing to show that there was any error in the circuit
court proceeding, Kettner has also failed to show that he was prejudiced by any
purported error. See Adams, 223 Wis. 2d at 83 (a mistrial is appropriate only when
“the claimed error is sufficiently prejudicial to warrant a new trial”). Kettner asserts
that the alleged missing video evidence “would have proved [his] innocence,” but
he does not explain how so, and he fails to support this assertion with any citation
to the record. See Lechner v. Scharrer, 145 Wis. 2d 667, 676, 429 N.W.2d 491 (Ct.
App. 1988) (this court need not consider arguments unsupported by references to
the record). In fact, Kettner’s own trial testimony contradicts this assertion.
According to Kettner’s testimony, the alleged missing video evidence would have
shown him “repetitively telling” the officer that “I wasn’t operating the truck.” This
would not have proven Kettner’s innocence—it would have shown only that Kettner
denied driving the Silverado, which would have merely corroborated both Kettner’s
and the officer’s trial testimony to that effect. In its oral ruling, the circuit court
noted that, even if Kettner had denied driving, “[o]fficers are not required to take
for truth everything a person says on scene,” and that they instead “have an
obligation to continue their investigation.” Accordingly, Kettner has not shown that
the missing video’s absence prejudiced him, and has not shown that he is entitled to
a mistrial.

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CONCLUSION

¶16 For all of these reasons, I affirm the judgments of the circuit court.

By the Court.—Judgments affirmed.

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

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