State v. Jeffrey Allen Jacobi

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.
July 11, 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. 2022AP441-CR Cir. Ct. No. 2016CF4964

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JEFFREY ALLEN JACOBI,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: JOSEPH R. WALL, Judge. Affirmed.

Before Brash, C.J., Donald, P.J., and Dugan, J.

Per curiam opinions 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).

¶1 PER CURIAM. Jeffrey Allen Jacobi appeals a judgment of
conviction for operating while intoxicated (OWI) as a seventh or subsequent
No. 2022AP441-CR

offense. On appeal, Jacobi contends that: (1) his constitutional right to a speedy
trial was violated; (2) the prosecutor improperly referred to Jacobi’s prior OWI
convictions; (3) the trial court erroneously allowed the State to use a variety of
other inadmissible evidence; and (4) he is entitled to a new trial in the interest of
justice. For the reasons discussed below, we affirm.

BACKGROUND

¶2 On November 8, 2016, Jacobi was charged with OWI as a 7th, 8th,
or 9th offense. An amended information added one count of operating with a
prohibited alcohol concentration (PAC) as a 7th, 8th, or 9th offense.

¶3 According to the criminal complaint, on the evening of November 6,
2016, K.R. was driving west on Brady Street in the City of Milwaukee when a
motorcycle driver, who she later identified as Jacobi, rear-ended her car. After the
crash, Jacobi walked up to K.R.’s vehicle and attempted to open one of the car
doors. He then left the scene. Approximately twenty minutes later, Jacobi
returned to the scene and K.R. pointed him out to officers. Jacobi’s right foot was
bare and he had a black leather boot on his left foot. A right leather boot was
located under the motorcycle at the crash scene.

¶4 Officer Richard Lopez smelled a strong odor of alcohol on Jacobi’s
breath and observed that Jacobi had bloodshot eyes, was swaying while he stood,
and slurred his speech. Jacobi performed a horizontal gaze nystagmus (HGN) test
and exhibited six of six clues. Jacobi refused all other field sobriety tests. Based
on these observations, Officer Lopez believed Jacobi was intoxicated.

¶5 Between the time of the filing of the complaint on November 8,
2016, and the start of Jacobi’s trial on April 12, 2021, there were multiple

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No. 2022AP441-CR

adjournments of the trial attributable to the State and the defense, scheduling
conflicts, and COVID-19 restrictions. On August 6, 2019, Jacobi moved to
dismiss the charges on the ground that he was denied his constitutional right to a
speedy trial. After briefing and a hearing, the trial court denied the motion to
dismiss. On March 19, 2021, Jacobi filed a motion to reconsider, which the trial
court denied.

¶6 During the trial, the State presented testimony from several
witnesses, including K.R., Officer Lopez, and expert witness Jennifer Greene, who
testified about Jacobi’s likely alcohol concentration at the time of the crash using
retrograde extrapolation. The State also presented video from the body camera of
Officer Frank Salinsky, which recorded his conversation with K.R. and his
interactions with Jacobi. The video files were labeled “OWI 7-2,” “OWI 7-4,” and
“OWI 7-8.”

¶7 Jacobi testified that on the day of the crash he was at his mother’s
house until “7:15 or 7:30” in the evening and had nothing to drink. He admitted to
hitting K.R.’s car on Brady Street, saying that he “tapped her on the bumper and
ended up dumping the bike.” Jacobi struggled to get up and his boot got stuck
underneath the floorboard. Jacobi then went over to K.R.’s car to trade numbers
and insurance and make sure she was okay. K.R. did not get out of the car and
pulled ahead. Jacobi then went to a bar to get help lifting his motorcycle up since
K.R. was not getting out of the car to help. At the bar, Charles Skibbe, who he did
not know, made a comment about him being bootless. After they bantered back
and forth, Skibbe bought him a few shots of Jack Daniels and he had a mixed
drink. Jacobi testified that he was at the tavern for about 30 or 45 minutes and
then returned to the scene of the crash. Jacobi said that he was under the influence
of alcohol when he spoke to the police, but not when he drove.

3
No. 2022AP441-CR

¶8 Skibbe, who testified by phone because he was in federal custody,
said that he was in the bar when Jacobi came in with one boot on. Skibbe said that
he did not smell any alcohol on Jacobi and Jacobi did not slur his speech, but he
“seemed a little shook up.” Skibbe said that he told Jacobi that he could not help
him pick up the motorcycle due to a shoulder issue, and that he bought Jacobi two
shots and a mixed drink. He testified that Jacobi was at the bar for about 30 or 45
minutes.

¶9 The jury found Jacobi guilty of OWI and operating with a PAC. The
court entered judgment on the OWI conviction, and the PAC conviction was
dismissed. This appeal follows. Additional relevant facts are referenced below.

DISCUSSION

¶10 On appeal, Jacobi makes four primary arguments. Jacobi contends
that: (1) his constitutional right to a speedy trial was violated; (2) the prosecutor
improperly referred to Jacobi’s prior OWI convictions; (3) the trial court
erroneously permitted the State to use a variety of other inadmissible evidence;
and (4) he is entitled to a new trial in the interest of justice. We address each
argument below.

I. Speedy Trial

¶11 Jacobi first contends that he was denied his constitutional right to a
speedy trial.

¶12 The Sixth Amendment to the United States and article I, section 7 of
the Wisconsin Constitution guarantee an accused the right to a speedy trial. State
v. Urdahl, 2005 WI App 191, ¶11, 286 Wis. 2d 476, 704 N.W.2d 324. If a speedy
trial violation has occurred, the charges against the defendant must be dismissed.

4
No. 2022AP441-CR

Barker v. Wingo, 407 U.S. 514, 522 (1972). Whether a defendant has been denied
the right to a speedy trial is a question of law that we review independently.
Urdahl, 286 Wis. 2d 476, ¶10. We accept any findings of fact made by the trial
court unless clearly erroneous. Id.

¶13 To determine whether a defendant’s right to a speedy trial has been
violated, we balance four factors: (1) the length of the delay; (2) the reasons for
delay; (3) the defendant’s assertion of the right; and (4) the prejudice to the
defendant. See State v. Borhegyi, 222 Wis. 2d 506, 509, 588 N.W.2d 89 (Ct. App.
1998). As we have previously stated:

[t]he right to a speedy trial is not subject to bright-line
determinations and must be considered based on the totality
of circumstances that exist in the specific case. Essentially,
the test weighs the conduct of the prosecution and the
defense and balances the right to bring the defendant to
justice against the defendant's right to have that done
speedily.

Urdahl, 286 Wis. 2d 476, ¶11 (citation omitted).

¶14 The first factor—the length of the delay—is a “triggering
mechanism used to determine whether the delay is presumptively prejudicial.”
Id., ¶12. A post-accusation delay is considered to be presumptively prejudicial
when it approaches one year. Id. Here, Jacobi was arrested on November 6, 2016,
and Jacobi’s trial began on April 12, 2021—a period of 1,618 days. The State
concedes that the delay in this case exceeded one year and was presumptively

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No. 2022AP441-CR

prejudicial.1 We agree, and conclude that this factor weighs in favor of Jacobi’s
constitutional speedy violation claim, and turn to the next three factors.

¶15 The second factor—the reasons for delay—requires us to “identify
the reason for each particular portion of the delay[.]” Id., ¶26. We then “accord
different treatment to each category of reasons.” Id. We have stated that:

A deliberate attempt by the government to delay the trial in
order to hamper the defense is weighted heavily against the
State, while delays caused by the government's negligence
or overcrowded courts, though still counted, are weighted
less heavily. On the other hand, if the delay is caused by
something intrinsic to the case, such as witness
unavailability, that time period is not counted.

Id. (citations omitted).

¶16 Looking at the delays in this case, we agree with the State that only a
small portion of the delay is properly attributed to the State, and no part of the
delay was due to “[a] deliberate attempt by the government to delay the trial in
order to hamper the defense[.]” Id.

¶17 As stated above, Jacobi was arrested on November 6, 2016. The
trial was initially scheduled for 183 days later—May 8, 2017. The State asserts
that this period should not be counted against the State because it was necessary

1
We note that the State counts the delay in this case from the time of the filing of the
complaint on November 8, 2016, to the date the trial began on April 12, 2021. However, in State
v. Borhegyi, 222 Wis. 2d 506, 511-12, 588 N.W.2d 89 (Ct. App. 1998), we specifically rejected
an argument from the State that the defendant’s speedy trial rights commenced with the filing of
the criminal complaint, and instead measured the delay from the date of the defendant’s arrest to
the date of the trial. The State does not cite any authority or develop an argument in support of its
determination that the delay is measured from the date of the filing of the complaint.
Accordingly, in this case, we measure the delay from the date of Jacobi’s arrest to the date of his
trial.

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No. 2022AP441-CR

for the parties to prepare for trial. Even if we assume that this period counts
against the State, we do not weigh it heavily as there was no objection from Jacobi
or request for a speedy trial. See Barker, 407 U.S. at 531 (stating that “[a] more
neutral reason such as negligence or overcrowded courts should be weighted less
heavily but nevertheless should be considered since the ultimate responsibility for
such circumstances must rest with the government rather than with the
defendant”).

¶18 Subsequently, the May 8, 2017 date was adjourned due to the State’s
failure to turn over an expert witness report. The trial was rescheduled to
September 5, 2017. This 120-day delay is properly attributed to the State.

¶19 On September 1, 2017, trial counsel moved to adjourn the trial
because he had another trial that was expected to go until September 5, 2017. On
September 5, 2017, the trial court asked defense counsel if he was prepared for
Jacobi’s trial, noting that “I know you were in trial until 5:30 on Friday.” Trial
counsel responded that he did not know if the court was going to grant the
adjournment so he spent time over the weekend preparing; however, trial counsel
stated that Jacobi “would feel better if he had some time to sit down with me.”
The court stated it would provide a new date for the trial. The trial was then
scheduled for January 22, 2018. Subsequently, the State requested that the trial be
moved to an earlier date, October 30, 2017, due to a witness conflict. Based on
the record, we conclude that the 55-day delay from September 5, 2017 to
October 30, 2017 is attributed to the defense.

¶20 On October 30, 2017, the trial court adjourned the trial again
because Jacobi had appealed the trial court’s decision that he had improperly
refused a blood test. A new trial date was set for August 6, 2018. Jacobi argues

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No. 2022AP441-CR

that this delay should be attributed to the State because the State could have gone
to trial without the refusal evidence. It was Jacobi’s decision, however, to appeal.
As a result, the 280-day delay from October 30, 2017 to August 6, 2018, is
attributed to the defense. The State had no reason to forgo the use of the refusal
evidence given that it had prevailed in the trial court.

¶21 On August 3, 2018, trial counsel moved to adjourn the August 6,
2018, trial because Jacobi’s mother, who the defense intended to call as a witness,
was unavailable for medical reasons. The trial court granted the motion and
rescheduled the trial to January 7, 2019. This delay of 154 days cannot be
attributed to the State.

¶22 On January 7, 2019, the trial court adjourned the trial, stating that
“I’ve got another trial that has priority over this one, so I’ve got to adjourn this.”
The trial was rescheduled to March 25, 2019. This 77-day delay is properly
attributed to the State, but it is not weighed heavily. See Urdahl, 286 Wis. 2d 476,
¶31.

¶23 On March 20, 2019, the State moved to adjourn the trial due to the
unavailability of two witnesses. The court granted the motion and rescheduled the
trial to July 29, 2019. On June 7, 2019, the court granted another adjournment due
to the unavailability of a State witness and rescheduled the trial to September 3,

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No. 2022AP441-CR

2019. The 162 days from March 25, 2019 to September 3, 2019, is not counted
against the State as it was due to witness unavailability.2 See id., ¶26.

¶24 On September 3, 2019, Jacobi moved to adjourn his trial due to the
unavailability of a witness. The court granted Jacobi’s adjournment request and
rescheduled the trial for January 20, 2020. Subsequently, the trial was rescheduled
one day later to January 21, 2020, due to an oversight that this date was Martin
Luther King Jr. Day. The 139-day delay from September 3, 2019, to January 20,
2020, is not attributed to the State as it was due to the unavailability of a defense
witness. The one-day delay from January 20, 2020, to January 21, 2020, is
properly attributed to the State, but is not weighed heavily.

¶25 On January 21, 2020, the trial court rejected Jacobi’s constitutional
speedy trial claim. The trial was rescheduled to May 4, 2020. This 104-day delay
is not attributed to the State.

¶26 Due to the COVID-19 pandemic, the trial was then delayed several
times from May 4, 2020, to December 7, 2020. Jacobi argues that these delays
should be attributed to the State because the pandemic was “not a factor intrinsic

2
Jacobi acknowledges that witness unavailability is generally not counted. Jacobi
nonetheless argues that the State failed to exercise “reasonable diligence” to ensure that its
witnesses were available at the time the State consented to the trial dates. In support, Jacobi cites
Borhegyi, 222 Wis. 2d at 517. Borhegyi, however, discussed reasonable diligence in the context
of the fourth factor—whether the defendant was prejudiced—not the second factor. See id.
(stating that counsel must exercise reasonable diligence before a witness’s unavailability is
prejudice for which the State is responsible). Thus, we do not find Jacobi’s argument persuasive.

9
No. 2022AP441-CR

to the case.” See id. (“[I]f the delay is caused by something intrinsic to the case …
that time period is not counted.”).3

¶27 In response, the State cites numerous cases from other jurisdictions
that have held that delays due to COVID are not properly attributed to the State.
See e.g., Cotney v. State, 503 P.3d 58, 67 (Wyo. 2022) (“[T]he delay caused by
the district court’s continuances of the trial due to the COVID-19 pandemic is
neutral because neither [the defendant] nor the State caused the delay.”); State v.
Conatser, 645 S.W.3d 925, 930 (Tex. App. 2022) (“Delay caused by the onset of a
pandemic cannot be attributed as fault to the State.”); State v. Paige, 977 N.W.2d
829, 843 (Minn. 2022) (“We do not weigh against the State the fact that the
Minnesota judicial system responded to the then-unclear and largely
unprecedented risks posed by COVID-19 by postponing jury trials.”). Jacobi does
not attempt to distinguish these cases, and we find them persuasive and do not
attribute the 217-day delay due to the pandemic to the State.

¶28 On December 1, 2020, Jacobi moved to exclude any expert
testimony concerning the analysis of Jacobi’s blood for the presence of alcohol.
That same day, at the final pretrial conference, the court ordered the State to
provide additional information regarding the expert to the defense by February 15,
2021. The trial was then rescheduled from December 7, 2020, to April 12, 2021.

3
We note that in his reply brief, Jacobi observes that on March 22, 2020, our supreme
court issued an order suspending jury trials, but carved out an exception whereby a trial court or
party could request a jury trial. See In Re the Matter of Jury Trials During the COVID-19
Pandemic (S. CT. ORDER, Mar. 22, 2020). Jacobi contends that neither the trial court nor the
State requested that an exception be made in Jacobi’s case, thus this delay should be attributed to
the State. Jacobi, however, raises this argument for the first time in his reply brief. We need not
address arguments that are raised for the first time in a reply brief, see A.O. Smith Corp. v.
Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998), and we decline to do
so here.

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No. 2022AP441-CR

This 126-day delay from December 7, 2020, to April 12, 2021, is attributed to the
State.

¶29 The trial commenced on April 12, 2021. A total of 1,618 days
passed from the date of Jacobi’s arrest to the start of the trial. Of those days, 1,111
can be attributed to Jacobi, unavailable witnesses, and COVID. Of the remaining
507 days, 183 days were for trial preparation, 77 days for court congestion, and
one day due to a scheduling mistake. These 261 days are attributed to the State,
but are not weighed heavily. See Barker, 407 U.S. at 531. This leaves 246 out of
1,618 days that may be counted heavily against the State.

¶30 Turning to the third factor, we examine whether Jacobi asserted his
right to a speedy trial. See Urdahl, 286 Wis. 2d 476, ¶11. Jacobi admits that he
did not file a speedy trial demand. While Jacobi filed a motion to dismiss on
constitutional speedy trial grounds on August 6, 2019, he in effect waited
approximately twenty-six months from the date of the first scheduled trial before
asserting his right to a speedy trial.

¶31 In regards to the fourth factor, prejudice, “[c]ourts consider [this
factor] with reference to the three interests that the right to a speedy trial protects:
prevention of oppressive pretrial incarceration, prevention of anxiety and concern
by the accused, and prevention of impairment of defense.” Id., ¶34. “The third
interest is the most significant because ‘the inability of a defendant [to] adequately
… prepare his case skews the fairness of the entire system.’” Id. (alternation in
original; citation omitted).

¶32 Jacobi concedes that prevention of oppressive pretrial incarceration
interest is not at issue as he was released on bond. We agree.

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No. 2022AP441-CR

¶33 Jacobi argues that the second interest—the prevention of anxiety and
concern—was implicated because he faced prison if he was convicted. However,
approximately two years of delay were due to Jacobi and unavailable defense
witnesses. Thus, we are not persuaded that Jacobi can show prejudice due to
anxiety and concern.

¶34 In regards to the third interest, Jacobi points to the fact that defense
witness Christine Jacobi passed away on September 11, 2018, before a deposition
could be taken, which impaired his defense.

¶35 In State v. Provost, 2020 WI App 21, ¶47, 392 Wis. 2d 262, 944
N.W.2d 23, this court stated that “the death of an exculpatory witness during a
delay in bringing the defendant to trial generally weighs in favor of finding that
the defendant was prejudiced by the delay.” We concluded, however, that the
death of the witness did “not weigh heavily, if at all, in favor of finding that the
delay prejudiced [the defendant’s] ability to present a defense.” Id. We observed
that the witness at issue had died less than a year after the defendant was initially
charged and the delays were attributed to the defense. Id., ¶48.

¶36 Similarly, here, we do not find that the death of Christine weighs
“heavily, if at all, in favor of finding that the delay prejudiced [Jacobi’s] ability to
present a defense.” Id., ¶47. The first trial date, May 8, 2017, was adjourned for
120 days to September 5, 2017, due to the State’s failure to turn over an expert
witness report. At that point, less than one year had passed from the date Jacobi
was arrested. Subsequently, Jacobi moved for an adjournment of the September 5,
2017 trial date, and then appealed the trial court’s order finding his refusal
unlawful. Thus, the 371 days between September 5, 2017, and September 11,
2018, the date Jacobi’s mother passed, cannot be attributed to the State.

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No. 2022AP441-CR

¶37 Jacobi also argues that Skibbe was unavailable to testify in person
due to the delays. Jacobi contends that because Skibbe did not testify in person,
the jury was “unable to visually assess Skibbe and use their observations to
determine the credibility of Skibbe’s testimony.” However, as the State observes,
Jacobi does not explain why the jury would have been more likely to find Skibbe
credible had he testified in person rather than by telephone.

¶38 Further, only a small part of the delay in which Skibbe could have
testified can be attributed to the State. Defense counsel was unable to locate
Skibbe before the scheduled March 25, 2019 trial, and later determined that he
was in federal custody. Prior to March 25, 2019, when Skibbe could have
presumably appeared in person, only a small part of the delay can be attributed to
the State. As detailed above, the adjournment of the first trial date for the State to
provide an expert witness report resulted in a 120-day delay that can be attributed
to the State. However, the next three adjournments leading up to March 25, 2020,
were caused by Jacobi’s motion to adjourn the trial, his appeal of the refusal order,
and his motion to adjourn due to an unavailable witness. Thus, the bulk of the
delay was not caused by the State.

¶39 Balancing the above factors, we conclude that Jacobi’s right to a
speedy trial was not violated. While the length of the delay was presumptively
prejudicial, there were valid reasons for most of the delay. Further, given Jacobi’s
failure to timely assert the right and the minimal, if any, prejudice that was
incurred, Jacobi’s right to a speedy trial was not violated. Thus, the trial court
correctly denied Jacobi’s requests to dismiss the complaint.

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No. 2022AP441-CR

II. OWI References

¶40 Jacobi argues that the prosecutor improperly told the jury that Jacobi
had six prior OWI offenses when the prosecutor showed the jury the video files
labeled “OWI 7-2,” “OWI 7-4,” and “OWI 7-8.” According to Jacobi, the
prosecutor referred to the file names out loud thirteen times over the course of the
trial.4 Jacobi acknowledges that trial counsel did not object or move for a mistrial,
but contends that this constituted prosecutorial misconduct and plain error.

¶41 A prosecutor’s statements constitute misconduct when the
statements “so infected the trial with unfairness as to make the resulting conviction
a denial of due process.” State v. Davidson, 2000 WI 91, ¶88, 236 Wis. 2d 537.
613 N.W.2d 606 (citations omitted). “Plain error is error so fundamental that a
new trial or other relief must be granted[.]” State v. Vander Linden, 141 Wis. 2d
155, 159, 414 N.W.2d 72 (Ct. App. 1987). “The error, however, must be ‘obvious
and substantial,’ and courts should use the plain error doctrine sparingly.” State v.
Miller, 2012 WI App 68, ¶18, 341 Wis. 2d 737, 816 N.W.2d 331 (citation
omitted).

¶42 We agree with the State that Jacobi’s prosecutorial misconduct and
plain error claims fail because there is no evidence or reason to believe that the
jury understood the video file names and the prosecutor’s references to the files to
mean that Jacobi had six prior OWI convictions. The numbers associated with the
videos could mean anything to the jury—the officer’s numbers, the number of the

4
In the trial court, in response to a motion to stay the penalties pending appeal, the
prosecutor indicated that she said the files out loud for the record as “OWI seven dash four” or
“OWI seven dash eight.”

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No. 2022AP441-CR

call the police responded to that day, or even the seventh day of the month when
the video could have been downloaded. In addition, there was no evidence or
argument at trial presented about Jacobi’s prior convictions and when Jacobi
testified, he was not asked about his prior convictions.

¶43 Thus, there was no prosecutorial misconduct because the prosecutor
did not tell the jury that Jacobi had six prior convictions. Likewise, there was no
plain error because there is no indication that the jury understood the video file
names to mean that Jacobi had six prior convictions.5

III. Alleged Trial Court Errors

A. Jacobi’s Refusal to Answer Police Questions

¶44 Jacobi first contends that the trial court erroneously permitted the
State to elicit testimony that Jacobi refused to answer police questions, which
violated his constitutional right to remain silent. Jacobi argues that the trial court
should have struck this testimony.

¶45 During trial, the prosecutor asked a police officer to describe
Jacobi’s response to police questions, and the officer answered, “He did not want
to answer the questions, I believe.” Jacobi’s defense counsel objected and argued
that Jacobi had a constitutional right not to answer questions. The court
responded, “Ladies and gentleman, that is correct, and we can move on from
there.”

5
We note that the State also contends that any error relating to the video file names was
harmless. Because we conclude that there was no error, we do not address the State’s harmless
error argument. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989)
(“[C]ases should be decided on the narrowest possible ground[.]”).

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No. 2022AP441-CR

¶46 Here, even if we assume that the officer’s single statement was
improper—and we emphasize we are not making that finding—any error was
harmless. An error is harmless if the party who benefitted from the error “shows
‘beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained.’” State v. Monahan, 2018 WI 80, ¶33, 383 Wis. 2d 100, 913
N.W.2d 894 (citations omitted).

¶47 The officer’s statement came immediately after the jury saw a video
of the officer questioning Jacobi. As a result, the jury had already seen that Jacobi
seemed like he did not want to answer questions. In addition, immediately after
the officer’s statement, defense counsel stated that a person has a constitutional
right not to answer questions. The trial court then said “Ladies and gentlemen,
that is correct[.]” The jury thus heard that Jacobi had a constitutional right not to
answer questions. Accordingly, there was no harm and nothing for the trial court
to strike. Any error was harmless. Id.

B. Expert Testimony

¶48 Second, Jacobi argues that the trial court erred in permitting the
State’s witness, Greene, to testify as an expert.

¶49 Relevant to this issue, at a pretrial hearing on November 23, 2020,
the State indicated that its toxicologist, Laura Hedden, had retired or left the crime
lab, so it would be calling a peer reviewer. The defense requested that the State
file a motion to apprise the defense of the identity of the witness and her opinion.

¶50 Subsequently, a letter was filed from Greene. The letter stated that a
blood sample was collected from Jacobi, examined for the presence of ethanol at
the State Crime Laboratory, and a toxicology report was drafted on November 21,

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No. 2022AP441-CR

2016. The letter stated that Greene had examined the laboratory notes, analytical
data, and test results. The letter then indicated that she found “the interpretations
and conclusions that were reported on State Crime Laboratory Toxicology
Report 1 for R16-4463 to be appropriate and scientifically sound,” and that she
was “adopting the reported results and opinions as my own independent
conclusions.”

¶51 Prior to trial, Jacobi moved to exclude the expert testimony on the
ground of a discovery violation, pursuant to WIS. STAT. § 971.23 (2021-22).6 The
court denied the motion, concluding that,

the defense has been very, very well advised about the
substance of the laboratory tests and how the peer reviewer
Greene is going to be going through all that. And I think
that’s really what it comes down to is notice and the ability
to prepare for that witness. And I think that’s clearly
available here for the defense.

¶52 Jacobi argues that the letter from Greene was insufficient because it
did not reference a letter from Hedden regarding retrograde extrapolation and did
not contain any information about Greene’s anticipated testimony on that subject.
Jacobi, however, does not dispute that he knew the results of Hedden’s letter
regarding retrograde extrapolation, or that Greene was going to testify that her
calculations and results were the same. Thus, as the trial court determined, Jacobi
had notice and knew what the expert was going to testify. Accordingly, we
conclude that the expert’s testimony was properly admitted.

6
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2022AP441-CR

C. Use of Hypothetical Questions

¶53 Third, Jacobi contends that the trial court improperly allowed
Greene to answer hypothetical questions based on facts not in evidence. In
particular, Jacobi points to testimony from Greene regarding Jacobi’s alcohol
concentration at the time of the crash. He argues that this testimony was improper
because there was no evidence that the alleged alcohol had been fully absorbed
into Jacobi’s bloodstream at the time he operated the motorcycle. Additionally,
Jacobi points to testimony from Greene that she was told to assume Jacobi
weighed 200 pounds and had ten drinks.

¶54 We disagree with Jacobi. We find State v. Giese, 2014 WI App 92,
356 Wis. 2d 796, 854 N.W.2d 687, instructive. In Giese, when extrapolating the
defendant’s blood alcohol level at the time that he crashed his car, the expert made
“certain assumptions: that the alcohol was fully absorbed before the incident and
that [the defendant] ingested no additional alcohol afterwards.” Id., ¶8. The
defendant sought to exclude the blood test and testimony about retrograde
extrapolation in part because “the probative value of the evidence could not be
established because the retrograde extrapolation was based upon assumptions
concerning when the driving occurred and when the alcohol was ingested in
relation to the alleged driving.” Id., ¶9. In addition, the defendant argued that the
State could not prove the facts underlying the expert’s opinion, “i.e., the time of
the driving, the time of the drinking, and that no drinking occurred between the
time of the driving and the time of the blood test.” Id., ¶10.

¶55 This court concluded that the retrograde extrapolation expert
testimony was properly admitted in Giese. Id., ¶25. We stated that the
defendant’s “real dispute is not with the science the expert relied upon in his case

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No. 2022AP441-CR

but with the assumptions the expert made.” Id., ¶28. We noted that “[i]t is true
that the calculation would be more reliable if the expert had more facts about
exactly when and what [the defendant] drank,” but the “questions go to the weight
of the evidence, not to its admissibility.” Id. Thus, the defendant was “free to
challenge the accuracy of the expert’s assumptions.” Id.

¶56 As in Giese, here, Jacobi’s challenge goes to the weight of the
testimony, not to its admissibility. Greene testified that if Jacobi drank alcohol
after the crash, the retrograde extrapolation would not have been accurate. As the
trial court found when it denied Jacobi’s motion to dismiss the second count after
the close of the evidence, it was up to the jury to decide to believe or disbelieve
Jacobi’s story that he drank alcohol after the crash. The jury thus could have
found, as the expert assumed, that the alcohol Jacobi consumed was all absorbed
prior to the crash.

¶57 Likewise, in regards to Jacobi’s weight, it was up to the jury whether
to believe or disbelieve that he weighed 200 pounds. As the trial court found,
there was no evidence of Jacobi’s exact weight; however, the jury saw videos of
Jacobi shortly after the crash and could have concluded that his weight was around
200 pounds. Thus, again, any issue with how much Jacobi weighed went to the
weight of the evidence, not its admissibility. Accordingly, we are not persuaded
that allowing Greene to answer hypothetical questions was improper.

IV. New Trial in the Interest of Justice

¶58 Finally, Jacobi argues that he is entitled to a new trial in the interest
of justice. The interest of justice may warrant a new trial when the real
controversy has not been fully tried or when there was a miscarriage of justice.
WIS. STAT. § 752.35. We exercise our power to grant a discretionary reversal only

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No. 2022AP441-CR

in exceptional cases. State v. Sugden, 2010 WI App 166, ¶37, 330 Wis. 2d 628,
795 N.W.2d 456.

¶59 Based on our review of the record, we conclude that this is not an
exceptional case warranting a new trial in the interest of justice. As discussed
above, we reject Jacobi’s arguments and he has not presented any other basis that
would justify the exercise of our discretionary reversal power.

¶60 Therefore, for all of the reasons above, we reject Jacobi’s arguments
and we affirm.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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