State v. Brian D. Parchem

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 7, 2024
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. 2023AP28-CR Cir. Ct. No. 2018CF50

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BRIAN D. PARCHEM,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Columbia County:
TODD J. HEPLER, Judge. Affirmed.

Before Kloppenburg, P.J., Blanchard, and Nashold, JJ.

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. Brian Parchem appeals a judgment of conviction for
operating a motor vehicle while under the influence of an intoxicant as a fourth
No. 2023AP28-CR

offense. He was convicted after a jury trial. He argues that: (1) the police
conducted an unconstitutional search of the exterior of his truck by touching the
hood and the tailpipe; (2) the police conducted an unconstitutional search of the
interior of his truck; (3) the police unlawfully extended his initial stop to investigate
whether he was driving while intoxicated without reasonable suspicion; (4) the
police unlawfully compelled him to submit to field sobriety tests; (5) his consent to
submit to a blood test was not voluntary; (6) the police violated the implied consent
law; (7) he was prejudiced by the circuit court’s erroneous admission of evidence
of a citizen complaint that he publicly exposed himself; and (8) he was prejudiced
by the court’s error relating to the number of his prior convictions for impeachment
purposes. We affirm.

Background

¶2 At about 5:43 p.m. on a winter evening, multiple law enforcement
officers responded to a citizen complaint that a man was exposing himself in a public
parking lot near a library. Police went to this parking lot and there found Parchem
sitting in the driver’s seat of a truck. Police identified him as the likely subject of
the complaint and Parchem did not dispute that the truck belonged to him. The truck
was not running at that time.

¶3 The police noticed that near the truck was an area of melted snow,
which appeared to be consistent with someone having urinated there. Although
Parchem did not admit to urinating next to his truck, the police concluded that he
had engaged in public urination and determined that he should be issued a citation
for that offense.

¶4 Upon initial contact with Parchem, one of the officers noticed that
Parchem’s eyes were glassy and that he smelled of intoxicants. Parchem reported

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No. 2023AP28-CR

that he had consumed a couple of drinks at the end of his workday, but he said that
it had been 12 hours since he had driven his truck. He said that someone else had
transported him from his truck to his jobsite and back to his truck that day.

¶5 The police also observed that there were tire tracks in the snow around
Parchem’s truck and wetness on the tires. Both observations suggested that the
truck had been driven fairly recently.

¶6 One officer touched the hood and tailpipe of Parchem’s truck and
noted that they were warm. When Parchem overheard the police discussing his
warm tailpipe, he told them that he had started the truck about fifteen to twenty
minutes earlier.

¶7 At some point after the officer touched the hood and tailpipe of
Parchem’s truck, another officer obtained Parchem’s consent to open the hood of
the truck. Upon lifting the hood, the officer noted that the engine was still warm
from recent operation. The police also conducted a search of the interior of
Parchem’s truck in an attempt to locate his keys.

¶8 An officer transported Parchem to a police station garage for field
sobriety tests. There, the officer observed that Parchem exhibited “clues” of
intoxication on the tests. The officer placed Parchem under arrest. Parchem then
submitted to a blood test, which showed that his blood alcohol content was 0.148.

¶9 The State charged Parchem with operating a motor vehicle while
under the influence of an intoxicant and operating a motor vehicle with a prohibited
alcohol concentration, each as a fourth offense.

¶10 Parchem filed multiple suppression motions. The circuit court denied
them.

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No. 2023AP28-CR

¶11 At trial, Parchem moved to exclude as hearsay and not relevant
evidence of the citizen complaint that caused police to make initial contact with
Parchem, namely, that he had exposed himself. The circuit court denied the motion,
concluding that this evidence was admissible to explain why the police made contact
with Parchem.

¶12 Parchem testified in his defense. Prior to his testimony, the circuit
court and parties discussed how many of Parchem’s seven prior convictions were
admissible for impeachment purposes. The court determined that there were four.
However, the court also concluded that it would be misleading and technically
incorrect for Parchem to testify that he had only four. As a result of the court’s
ruling, Parchem ended up testifying that he had been convicted “[n]o less than” four
times.

¶13 We reference additional facts as needed below.

Standard of Review

¶14 Each of Parchem’s arguments in this appeal relates to the circuit
court’s suppression motion rulings or the court’s evidentiary rulings. When
reviewing a suppression motion ruling, we will uphold the court’s factual findings
unless the findings are clearly erroneous. State v. Blackman, 2017 WI 77, ¶25, 377
Wis. 2d 339, 898 N.W.2d 774. However, we review de novo the application of
constitutional principles to the facts. Id. We review evidentiary rulings for an
erroneous exercise of discretion. See State v. Hershberger, 2014 WI App 86, ¶20,
356 Wis. 2d 220, 853 N.W.2d 586.

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No. 2023AP28-CR

Discussion

1. Police Contact with the Exterior of Parchem’s Truck

¶15 Parchem argues that the officer who intentionally touched the hood
and tailpipe of his truck to determine whether they were warm conducted an
unconstitutional search. We do not address the constitutionality of this alleged
search because we agree with the State that the police discovered substantially the
same incriminating information through an independent source, namely, Parchem’s
later consent to allow an officer to open the hood of the truck to obtain substantially
the same information regarding possible recent operation of the truck.

¶16 “The [independent source] doctrine is an exception to the
exclusionary rule.” State v. Van Linn, 2022 WI 16, ¶12, 401 Wis. 2d 1, 971 N.W.2d
478. “[I]t allows for the admissibility of evidence or information tainted by an
illegal evidence-gathering activity when the State otherwise acquires the same
information—or ‘rediscover[s]’ it—by lawful means ‘in a fashion untainted’ by that
illegal activity.” Id. (quoted source omitted).

¶17 Here, Parchem’s consent to allow an officer to pop the hood of his
truck was an independent source of substantially the same information that a
different officer gleaned earlier from touching the hood and tailpipe. In each
instance, the relevant information was that part of Parchem’s truck was warmer than
it would have been if, as Parchem initially told police, he had not driven his truck
during the previous 12 hours.

¶18 Parchem contends that the State cannot meet its burden to show that
the consent search was an independent source because the officer who sought and
obtained his consent did not testify regarding whether the other officer’s touching

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No. 2023AP28-CR

of the truck hood and tailpipe influenced the second officer’s decision to request
consent. However, Parchem does not persuade us that such testimony was
necessary under the independent source doctrine.1

2. Search of the Interior of Parchem’s Truck

¶19 Parchem argues that the police unconstitutionally searched the interior
of his truck. However, Parchem does not reply to the State’s argument that the
interior search revealed no evidence to suppress, and therefore this issue is moot.
We take this lack of a reply as a concession and address the constitutionality of the
interior search no further. See United Coop. v. Frontier FS Coop., 2007 WI App
197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (taking an appellant’s failure to reply
to respondent’s argument as a concession).

3. Extension of the Initial Stop

¶20 Parchem argues that the police unlawfully extended his initial stop for
indecent exposure to investigate whether he was driving while intoxicated without
reasonable suspicion. The State argues that the police had not only reasonable
1
We are likewise not persuaded by other arguments that Parchem makes relating to the
independent source doctrine. We now comment briefly on two of those arguments.

First, Parchem argues that the State forfeited its independent source argument by failing to
raise this argument in the circuit court. However, the forfeiture rule “generally applies only to
appellants, and we will usually permit a respondent to employ any theory or argument on appeal
that will allow us to affirm the trial court’s order, even if not raised previously.” Finch v. Southside
Lincoln-Mercury, Inc., 2004 WI App 110, ¶42, 274 Wis. 2d 719, 685 N.W.2d 154; State v. Abbott,
2020 WI App 25, ¶24 n.6, 392 Wis. 2d 232, 944 N.W.2d 8.

Second, in a related argument, Parchem contends that the untimeliness of the State’s
independent source argument denied him the opportunity for the circuit court to find relevant facts
on this issue. However, the State raised a similar argument in the circuit court. Specifically, the
State relied on Parchem’s consent to allow police to open the hood of his truck to argue that
evidence relating to the truck’s temperature (and therefore its recent operation) would have been
inevitably discovered. Accordingly, Parchem was on notice of the State’s reliance on the consent
search.

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No. 2023AP28-CR

suspicion but probable cause. We conclude that the police had at least reasonable
suspicion.

¶21 The question of what constitutes reasonable suspicion is a common
sense test: under all the facts and circumstances present, what would a reasonable
police officer reasonably suspect in light of the officer’s training and experience?
State v. Colstad, 2003 WI App 25, ¶8, 260 Wis. 2d 406, 659 N.W.2d 394. It requires
the police to have more than a “mere hunch,” but they need not rule out the
possibility of innocent behavior. State v. Genous, 2021 WI 50, ¶8, 397 Wis. 2d
293, 961 N.W.2d 41.

¶22 Here, the parties disagree about the relevant circumstances, perhaps
because they also disagree about when the police extended Parchem’s initial stop to
investigate whether he was driving while intoxicated. However, as best we can tell
from his briefing, Parchem does not dispute that at least the following circumstances
were present by the time the police completed their investigation into the indecent
exposure complaint and extended the stop to investigate whether he had driven
while intoxicated.

¶23 First, the police responded to a citizen complaint that a man had
exposed himself in a particular parking lot. Second, the police found Parchem in
that parking lot, sitting in the driver’s seat of a truck that he did not dispute was his.
Third, an officer immediately noticed that Parchem’s eyes were glassy and that he
smelled of intoxicants. The officer testified that these were signs of impairment.
Fourth, there were tire tracks in the snow by Parchem’s truck and wetness on the
truck tires suggesting that the truck had been driven fairly recently. Fifth, the police
found what appeared to be a wet area of urine next to Parchem’s truck, which in
combination with the citizen complaint strongly suggested that Parchem had just

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No. 2023AP28-CR

urinated next to his truck. An officer testified that he associated public urination
conduct of this type with impairment. We conclude that these circumstances, when
considered together, provided reasonable suspicion that Parchem had driven while
intoxicated.

4. Field Sobriety Tests

¶24 Parchem argues that the police unlawfully compelled him to submit
to field sobriety tests. However, it is well established that the police may administer
the tests when they have reasonable suspicion of an intoxicated driving offense,
which they had here. See State v. Adell, 2021 WI App 72, ¶33, 399 Wis. 2d 399,
966 N.W.2d 115.

¶25 According to Parchem, the field sobriety tests were nonetheless
unlawfully compelled because he was subject to a custodial arrest when the police
transported him in a squad vehicle to administer the tests at the police station garage.
He argues that a reasonable person in his position, under these circumstances, would
have believed that the person was in custody at that time.

¶26 “In Wisconsin, the test for whether a person has been arrested is
whether a reasonable person in the defendant’s position would have considered
himself or herself to be in custody, given the degree of restraint under the
circumstances.” State v. Blatterman, 2015 WI 46, ¶30, 362 Wis. 2d 138, 864
N.W.2d 26 (quoted source and internal quotation marks omitted). “‘The
circumstances of the situation including what has been communicated by the police
officers, either by their words or actions, shall be controlling under [this] objective
test.’” Id. (quoted source omitted).

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No. 2023AP28-CR

¶27 We are not persuaded by Parchem’s custodial arrest argument for two
main reasons. First, the transportation of Parchem to the police station for field
sobriety tests did not alone convert the stop to an arrest. “The police may, where
reasonable grounds exist, ‘move a suspect in the general vicinity of the stop without
converting what would otherwise be a temporary seizure into an arrest.’” Id., ¶24.
(quoted source omitted). Here, the record shows that there were reasonable grounds
for the police to move Parchem to the police station garage. The officer who
transported Parchem testified that the station was less than a mile away and that he
transported Parchem there for the tests due to the cold weather and because snow
and ice on the ground made the pavement slippery. Another officer testified that
when such conditions are present, they would tend to move the suspect to a different
location to avoid any of those conditions impeding the tests.

¶28 Second, Parchem does not persuade us that, on balance, the
circumstances surrounding the transportation show a sufficient degree of restraint
to amount to an arrest under our case law. Parchem argues that multiple
circumstances were indicative of an arrest, including the number of officers (three)
initially on the scene, the police search of his truck without his consent, and
statements police made that communicated to him their subjective belief that he was
driving while impaired. However, Parchem discounts other significant factors
weighing against a conclusion that he was under arrest, including that the police did
not tell him that he was under arrest, that they allowed him to retrieve his coat from
his truck before transporting him to the police station, that they did not handcuff or
physically restrain him in any manner, and that they did not use any force, display
any weapon, or make any threat to get him into the squad vehicle.

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No. 2023AP28-CR

5. Voluntariness of Parchem’s Consent to the Blood Test

¶29 Parchem argues that his consent to the blood test was not voluntary.
The voluntariness of consent is determined based on the totality of the
circumstances. State v. Artic, 2010 WI 83, ¶32, 327 Wis. 2d 392, 786 N.W.2d 430.
Relevant factors include:

(1) whether the police used deception, trickery, or
misrepresentation in their dialogue with the defendant to
persuade him to consent; (2) whether the police threatened
or physically intimidated the defendant or “punished” him
by the deprivation of something like food or sleep;
(3) whether the conditions attending the request to search
were congenial, non-threatening, and cooperative, or the
opposite; (4) how the defendant responded to the request to
search; (5) what characteristics the defendant had as to age,
intelligence, education, physical and emotional condition,
and prior experience with the police; and (6) whether the
police informed the defendant that he could refuse consent.

Id., ¶33.

¶30 Here, the bulk of these factors support a conclusion that Parchem’s
consent to the blood test was voluntary. Parchem points to no evidence that the
police engaged in any intentional deception or trickery or that they engaged in any
threats or intimidation, nor does Parchem argue that he has any particular
characteristics that made him susceptible to providing his consent unwillingly or
without understanding. He also had prior experience with intoxicated driving
charges. Parchem argues that his consent to the blood test was nonetheless not
voluntary because, just prior to reading the Informing the Accused form, an officer
told him that “we’ve got to go up to the hospital” and “we have to do a blood draw.”
Parchem argues that the officer’s statements misleadingly communicated that his
consent was required, and he further argues that consent can never be voluntary
when an officer communicates that consent is required.

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No. 2023AP28-CR

¶31 We are not persuaded by Parchem’s argument that his consent was
involuntary because of the officer’s statements. We instead agree with the State that
the officer’s statements, in context, are more reasonably interpreted as the officer’s
colloquial way of explaining the steps that would occur if Parchem submitted to a
blood test.2 It is undisputed that immediately following these statements, the officer
read to Parchem verbatim the Informing the Accused form, which makes clear that
the accused may refuse the test, albeit with potential consequences.

6. Implied Consent Law

¶32 Parchem argues that the officer’s statements, “we’ve got to go up to
the hospital” and “we have to do a blood draw,” violated the implied consent law
because they (1) represented an “oversupply” of information, (2) were inaccurate
and misleading, and (3) affected his ability to make a choice regarding his right to
refuse the blood draw. In making this argument, he relies on a three-part test from
County of Ozaukee v. Quelle, 198 Wis. 2d 269, 280, 542 N.W.2d 196 (Ct. App.
1995), abrogated on other grounds by Washburn County v. Smith, 2008 WI 23,
¶64, 308 Wis. 2d 65, 746 N.W.2d 243.

¶33 Under the Quelle test, the defendant must make an initial showing that
the officer’s allegedly misleading statements affected the defendant’s ability to
choose whether to consent to the blood test. Id. at 278. Here, Parchem has not
made that showing. Accordingly, we reject his Quelle-based argument.

2
Interpreting the officer’s statements in this manner is consistent with the circuit court’s
conclusion that “there is nothing to suggest that Mr. Parchem’s agreement to the blood draw was
anything but consensual.” However, we do not conclude that statements of this type by a police
officer could never reasonably be understood as a command or directive that could weigh against
a determination of voluntariness. It depends on the context.

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No. 2023AP28-CR

7. Evidence of the Citizen Complaint of Indecent Exposure

¶34 Parchem argues that he was prejudiced by the circuit court’s
erroneous admission of hearsay evidence referencing the citizen complaint that a
man was exposing himself in the public parking lot by the library. We reject this
argument because Parchem does not establish that this evidence was offered for the
truth of the matter asserted, that is, to show that Parchem had exposed himself. “It
is well established that ‘out-of-court statements may be offered to prove
innumerable relevant propositions apart from the truth of any matters (explicitly [or]
implicitly[]) asserted.’” State v. Hanson, 2019 WI 63, ¶19, 387 Wis. 2d 233, 928
N.W.2d 607 (quoting 7 Daniel D. Blinka, Wisconsin Practice Series: Wisconsin
Evidence § 801.302 at 768 (4th ed. 2017)).

¶35 Parchem points to no instances in the record in which evidence of the
citizen’s complaint was offered to show that he had exposed himself. Rather, he
points to instances in which the evidence was offered to explain why the police
responded to the scene of the public parking lot and checked the area in which they
found Parchem sitting in his parked truck. Parchem does not show that this evidence
was offered or admitted as hearsay.

¶36 Alternatively, Parchem argues that, even if the evidence of the citizen
complaint was not hearsay, it should have been excluded because it violated his
right to confrontation. This argument misses the mark because “the Confrontation
Clause does not apply to nonhearsay statements.” Id., ¶27.

¶37 Parchem points to other instances at trial in which there were
references to his public urination, apparently arguing that evidence of his public
urination was also hearsay. However, these references were based on police

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No. 2023AP28-CR

officers’ testimony about their first-hand observations of the wet area near his truck
that appeared to be urine. That testimony was not hearsay.

8. Prior Convictions for Impeachment

¶38 Parchem argues that he was prejudiced by the circuit court’s ruling
relating to the number of his prior convictions for impeachment purposes. As noted
above, the court determined that only four of seven of Parchem’s prior convictions
were admissible for impeachment purposes. However, the court also concluded that
it would be misleading and technically incorrect for Parchem to testify that he had
only four. The court concluded that, if he testified and the topic were raised in a
question, Parchem would have to testify that he had “no less than” four or “at least”
four, or alternatively that he had seven.3 Ultimately, as a result of the court’s ruling,
Parchem testified that he had been convicted “[n]o less than” four times.

¶39 Parchem argues that the circuit court’s requirement that he testify in
this way regarding his prior convictions was an erroneous exercise of discretion and
prejudicial. To clarify, Parchem does not argue that the court could not require him
to acknowledge having four convictions, but instead he argues that the court could
not require the “no less than” or “at least” formulations. The State counters that the
court’s approach was a reasonable exercise of discretion, or alternatively that any
error in the court’s approach was harmless. We agree with the State’s harmless
error argument.

¶40 “[E]rror is harmless if it is ‘clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty absent the error.’” State v.

3
During the discussion relating to Parchem’s prior convictions, the circuit court at one
point appeared to indicate that another alternative would be for Parchem to testify that he had five
prior convictions.

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No. 2023AP28-CR

Hunt, 2014 WI 102, ¶26, 360 Wis. 2d 576, 851 N.W.2d 434 (quoted source
omitted). Here, the evidence against Parchem was strong, and the State’s most
powerful evidence—including the police officers’ observations of his intoxication,
physical evidence that he had recently driven his truck, and his blood test results—
did not depend on the jury’s assessment of his credibility or the number of his prior
convictions. We are satisfied that it is clear beyond a reasonable doubt that a rational
jury would have found Parchem guilty even if he had testified that he had “four”
prior convictions instead of “[n]o less than four.”

Conclusion

¶41 For all of the reasons stated above, we affirm the judgment of
conviction.

By the Court.—Judgment affirmed.

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

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