City of Rhinelander v. Zachary Tyler LaFave-LaCrosse

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.
January 7, 2025
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. 2020AP1120 Cir. Ct. Nos. 2020TR68
2020TR69
2020AP1121

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

2020AP1120

CITY OF RHINELANDER,

PLAINTIFF-RESPONDENT,

V.

ZACHARY TYLER LAFAVE-LACROSSE,

DEFENDANT-APPELLANT.

2020AP1121

IN THE MATTER OF THE REFUSAL OF ZACHARY TYLER LAFAVE-LACROSSE:

CITY OF RHINELANDER,

PLAINTIFF-RESPONDENT,

V.
Nos. 2020AP1120
2020AP1121

ZACHARY TYLER LAFAVE-LACROSSE,

DEFENDANT-APPELLANT.

APPEALS from judgments of the circuit court for Oneida County:
MICHAEL H. BLOOM, Judge. Affirmed.

¶1 STARK, P.J.1 In these consolidated cases, Zachary Tyler
LaFave-LaCrosse (hereinafter, LaCrosse2), pro se, appeals from circuit court
judgments, entered after a bench trial, convicting him of first-offense operating a
motor vehicle while intoxicated (OWI) and refusing to submit to a chemical test
for intoxication.3 LaCrosse argues, first, that he did not “operate” the vehicle
because his mother was driving, and, therefore, the City of Rhinelander failed to
prove that element of the OWI offense. Then, LaCrosse argues that because he
did not operate the vehicle, he reasonably refused to consent to a chemical test of

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.

Pursuant to WIS. STAT. RULE 809.10(3), these cases have been consolidated for briefing
and disposition by an order of this court dated August 13, 2020.
2
The defendant told the circuit court to address him as “LaCrosse,” so we will do so as
well.
3
On July 9, 2020, LaCrosse filed a motion for a three-judge panel in appeal
No. 2020AP1121, which this court held in abeyance pending the completion of briefing. Based
on our review of the parties’ briefs and the record, we conclude that a three-judge panel is not
necessary. Therefore, the motion is denied.

These appeals were also on hold pending the outcome of separate appeals addressing the
circuit court’s orders denying LaCrosse’s motion to waive the trial transcript fees in the current
appeals due to his indigency. See City of Rhinelander v. LaFave-LaCrosse, Nos. 2020AP1466
and 2020AP1467, unpublished slip op. (WI App Apr. 5, 2022).

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his breath. For the reasons that follow, we reject all of LaCrosse’s arguments and
affirm.

BACKGROUND

¶2 The following facts are all taken from the testimony presented at the
March 13, 2020 bench trial. On January 18, 2020, Rhinelander Police Officer
Claire Decker encountered a vehicle in a snowbank at 2:35 a.m. One individual,
later identified as LaCrosse, was present with the vehicle. Decker testified that
LaCrosse was initially “in the vehicle” but that he “got out of the vehicle when
[she] had pulled up.” Decker stated that when she made contact with LaCrosse,
she “smelled intoxicants on his breath” and noted that LaCrosse had “slow and
slurred speech.” According to Decker, LaCrosse admitted that he was coming
from the Jailhouse Bar and “had a couple drinks at the bar.” Decker then asked
LaCrosse to perform field sobriety tests, and he agreed.

¶3 Decker administered three field sobriety tests to LaCrosse: the
horizontal gaze nystagmus test, the walk-and-turn test, and the one-legged-stand
test. Decker testified that she was certified to administer field sobriety tests, and
based on her training, those tests all revealed multiple clues of intoxication.
Decker testified that she then requested that LaCrosse submit to a preliminary
breath test (PBT), which he refused. Nevertheless, based on her training and
experience, Decker determined that LaCrosse was intoxicated. Decker placed
LaCrosse under arrest and transported him to the Oneida County Jail. At the jail,
Decker read LaCrosse the Informing the Accused form. See WIS. STAT.
§ 343.305(4). She then requested “a chemical test of his breath,” which he
refused.

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¶4 LaCrosse, for his part, testified that although he was present with the
vehicle when Decker arrived on the scene, he “was not inside [the] vehicle when
the officer showed up” and was not the driver. After first indicating a desire not to
state who the driver was, he testified that the driver was his mother, whom he had
been with at the Jailhouse Bar. LaCrosse stated that when Decker arrived on the
scene, his mother was walking back to her house—which was one and one-half
miles away—“to get her boyfriend and his car to pull the car out of the ditch.”
According to LaCrosse, his mother just recently had a baby, and her boyfriend
would not leave the ten-month-old child, which is why she had to walk to the
house. LaCrosse testified that at no time did he ever advise Decker that his mother
had been driving. When asked why his mother was not in court to testify that she
was the one driving, LaCrosse stated, “She’s at home watching the baby.” He also
admitted that his mother never contacted law enforcement to tell them she was the
one driving.

¶5 Further, LaCrosse conceded that Decker read him the Informing the
Accused form and that he refused to submit to the chemical breath test. At first,
he explained that he refused because “I knew I had a couple drinks,” but then he
testified, “I’m from Arizona where we have the right to refuse a [b]reathalyzer
test. I did not know until after the fact that Wisconsin was an implied consent
state.” LaCrosse also testified that he “did indicate [to Decker] before the field
sobriety test that [he] had received a concussion on January the 1st so [his] balance
w[ould] be impaired.”

¶6 At the close of evidence, the circuit court found that most of the
above facts were not in dispute. As to the issue of whether LaCrosse was the one
driving the vehicle that evening, the court observed that it had to “make what’s

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called a credibility determination, and this one’s easy.” According to the court,
“[i]t strains reason that an individual confronted with an OWI arrest would not
declare: I didn’t drive the vehicle.” In essence, the court found LaCrosse’s
testimony incredible in multiple respects and noted that “it’s to Mr. [LaCrosse’s]
credit that he didn’t bring his mother here to commit perjury.” The court,
therefore, found LaCrosse guilty of OWI.

¶7 The circuit court then addressed the citation for refusing to submit to
a chemical test under WIS. STAT. § 343.305(9)(a)5. The court first found that
Decker’s testimony “thoroughly” established that LaCrosse had been lawfully
placed under arrest after a finding of probable cause. The court further found that
Decker properly read the Informing the Accused form to LaCrosse in compliance
with the statutory requirements—which LaCrosse does not dispute—and that
LaCrosse refused the test.

¶8 On April 2, 2020, LaCrosse filed a motion to reconsider the OWI
citation and a motion to reconsider, or in the alternative for a new trial, in the
refusal case. LaCrosse argued that the City had not met its burden to prove that he
was “operating” the motor vehicle, as that term is defined in the statutes, and that
there was no physical evidence that he was operating the vehicle. LaCrosse also
argued that the field sobriety tests were conducted under unfavorable conditions,
such that the tests should not have provided probable cause. In the refusal case,
LaCrosse’s motion alleged that the fact of when he was read the Informing the
Accused form—i.e., after he refused the PBT and after he was arrested—was
newly discovered evidence and that Decker failed to comply with WIS. STAT.
§ 343.305(4).

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¶9 At a nonevidentiary motion hearing, the circuit court affirmed its
prior rulings. The court reiterated the trial testimony on the record and explained
that “there is certainly a reasonable inference that [LaCrosse] drove the vehicle
from the Jailhouse Bar.” The court continued, “Despite the fact that the officer
didn’t see him driving or didn’t even necessarily see him in the vehicle, under
those circumstances it is certainly” reasonable to believe that LaCrosse operated
the vehicle. The court, therefore, denied LaCrosse’s motions for reconsideration.
LaCrosse appeals.

DISCUSSION

¶10 LaCrosse challenges both citations on the basis that the evidence
was insufficient to support his convictions. On appeal, we will not set aside the
circuit court’s findings unless they are clearly erroneous. WIS. STAT. § 805.17(2).
Further, “when the [circuit court] acts as the finder of fact, and where there is
conflicting testimony, the [circuit court] is the ultimate arbiter of the credibility of
the witnesses.” Cogswell v. Robertshaw Controls Co., 87 Wis. 2d 243, 250, 274
N.W.2d 647 (1979). “When more than one reasonable inference can be drawn
from the credible evidence, the reviewing court must accept the inference drawn
by the trier of fact.” Id. Whether the evidence was sufficient to sustain a
conviction presents a question of law for our independent review. State v. Booker,
2006 WI 79, ¶12, 292 Wis. 2d 43, 717 N.W.2d 676.

¶11 To sustain a conviction for a civil offense under WIS. STAT.
§ 346.63(1)(a), “clear, satisfactory[,] and convincing” evidence must be presented
that (1) the person drove or operated a motor vehicle on a highway while (2) under
the influence of an intoxicant which impaired his or her ability to operate the
vehicle. WIS. STAT. §§ 345.45, 346.63(1)(a); WIS JI—CRIMINAL 2663(A) (2006).

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LaCrosse argues that the City failed to meet its burden to prove “the fact of
operation.” According to LaCrosse, “[n]o physical evidence was submitted that
the defendant was ‘operating’ the vehicle” pursuant to the definition of “operate,”
meaning “the physical manipulation or activation of any of the controls of a motor
vehicle necessary to put it in motion.” See § 346.63(3)(b).

¶12 We conclude that the City met its burden to prove that LaCrosse
drove or operated the vehicle. The evidence in support of the circuit court’s
conclusion that LaCrosse operated the vehicle is as follows: the vehicle was
discovered on a road in a snowbank; LaCrosse said he had come from the
Jailhouse Bar and had two drinks; LaCrosse was the only person on the scene with
the vehicle; LaCrosse answered Decker’s questions about where he was coming
from, submitted to field sobriety tests, and was arrested for OWI without ever
stating that he was not the driver of the vehicle; LaCrosse’s mother never came
forward to assert that she was the driver of the vehicle; and his mother did not
testify at trial.

¶13 Generally speaking, the City’s case was strong, albeit circumstantial.
“It is well established that a finding of guilt may rest upon evidence that is entirely
circumstantial ….” State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752
(1990). As a reviewing court, we “must accept and follow the inference drawn by
the trier of fact unless the evidence on which that inference is based is incredible
as a matter of law.” Id. at 507. Essentially, LaCrosse asks us to reweigh the
evidence and reassess witness credibility. Under our standard of review, we will
not do so. The circuit court was entitled to infer, based on the above evidence,

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that LaCrosse had driven the vehicle from the Jailhouse Bar to the point that it
ended up in the snowbank.4 This inference is not incredible as a matter of law.

¶14 LaCrosse’s arguments on this point appear to be based on his
mistaken belief regarding what evidence is sufficient to prove a fact. LaCrosse
contends that there is a lack of “evidence, direct or circumstantial, that [he]
touched any controls of the vehicle,” and then he claims in his reply that “[t]he
[circuit] court relied on the ‘preponderance of controversial testimony, falters to
ignorance of the law and justifies with [sic] circumstantial evidence.’” The court
was entitled to rely upon the testimony of both Decker and LaCrosse and to
determine what testimony it found credible. Testimony is evidence. Further,
“circumstantial evidence is oftentimes stronger and more satisfactory than direct
evidence.” Poellinger, 153 Wis. 2d at 501; see also State v. Bohannon, 2013 WI
App 87, ¶30, 349 Wis. 2d 368, 835 N.W.2d 262 (“[A] conviction may be based in
whole or in part upon circumstantial evidence.” (citation omitted)). The court did
not find LaCrosse’s testimony that he was not driving the vehicle that evening to
be credible. That finding was not clearly erroneous.

¶15 LaCrosse next takes issue with the field sobriety tests that Decker
conducted, arguing that there was no probable cause to arrest him for OWI. He
identifies the “blizzard conditions” and the fact that he had allegedly received a

4
LaCrosse cites Village of Cross Plains v. Haanstad, 2006 WI 16, 288 Wis. 2d 573, 709
N.W.2d 447, in support of his position that he never physically manipulated or activated the
controls necessary to put the vehicle in motion. In that case, “Haanstad was merely sitting in the
driver’s seat of a parked vehicle,” “the uncontested evidence show[ed] that Haanstad was not the
person who left the engine running,” and there was “no circumstantial evidence that Haanstad
‘recently’ operated the vehicle.” Id., ¶23 (citation omitted). Haanstad is factually dissimilar
from this case in a material way, namely that there was circumstantial evidence that LaCrosse had
recently driven the vehicle between two locations.

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concussion days earlier that impacted his balance in support of his position.
According to LaCrosse, “[t]he procedures [Decker] employed in determining
probable cause for intoxication should not have been admissible under such
circumstances.”

¶16 First, as to the “blizzard conditions” on the road, we conclude that
LaCrosse consented to conducting the field sobriety tests under those conditions.
Decker testified that she had “concerns about the snow conditions” and that she
asked LaCrosse “if he was willing to walk on the snow-covered road or if he
would like to go back to the police department and take the test.” According to
Decker, LaCrosse stated that “he was okay walking on the road.” LaCrosse chose
to proceed with the field sobriety tests knowing that the snowy conditions were
present, and he was offered the opportunity to do them elsewhere but refused. He
cannot now complain about his decision. Cf. State v. Gary M.B., 2004 WI 33,
¶11, 270 Wis. 2d 62, 676 N.W.2d 475 (“[A] defendant cannot create his [or her]
own error by deliberate choice of strategy and then ask to receive benefit from that
error on appeal.” (citation omitted)).

¶17 Further, we conclude that LaCrosse’s argument regarding the
“blizzard conditions” is entirely undeveloped. See State v. Pettit, 171 Wis. 2d
627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we need not address undeveloped
arguments). LaCrosse fails to present any evidence that the conditions actually
affected his ability to complete the field sobriety tests.

¶18 Next, in terms of LaCrosse’s alleged concussion, we again conclude
that this argument is undeveloped. See id. LaCrosse does not identify any
evidence presented before the circuit court demonstrating that his alleged
concussion affected his ability to perform the field sobriety tests. As the City

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notes, LaCrosse did “not give any description of the type of impairment he was
experiencing or how it affected his performance on the tests,” noting only “that his
‘balance will be impaired.’” We therefore cannot conclude that LaCrosse’s
alleged concussion impacted his performance on the field sobriety tests.

¶19 Finally, LaCrosse argues that the circuit court “also acknowledge[d]
that field sobriety tests are inconclusive evidence.” While the court observed
limitations with the testing, it nevertheless found that “the sum total of the
evidence is sufficient to establish in the [c]ourt’s judgment that [LaCrosse] was
intoxicated.” The sum total of the evidence included the following: the vehicle
was found in a snowbank at 2:35 a.m.; LaCrosse admitted that he had previously
been at the Jailhouse Bar and that he had two drinks; Decker noted an odor of
alcohol and that LaCrosse’s speech was slow and slurred; the field sobriety tests
demonstrated clues of intoxication; and LaCrosse refused to submit to a PBT,
which the court construed to be an admission that he was intoxicated. The court’s
findings are all supported by the record and are not clearly erroneous.

¶20 LaCrosse’s final challenge is to his citation for refusing to submit to
a chemical test of his breath. Under Wisconsin’s implied consent law, when a law
enforcement officer arrests an individual for an OWI-related offense, the officer
may “request the person to provide one or more samples of his or her breath, blood
or urine, for the purpose” of chemical testing. WIS. STAT. § 343.305(2), (3)(a). If
the individual refuses, the officer “shall immediately prepare a notice of intent to
revoke … the person’s operating privilege,” § 343.305(9)(a), which informs the
individual that he or she may request a refusal hearing, § 343.305(9)(a)4. The
issues at the refusal hearing are limited by statute, however, to whether the officer
had probable cause to believe the person was driving or operating a motor vehicle

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while under the influence of an intoxicant, whether the officer properly read the
Informing the Accused form, and whether the person refused to permit the test.
Sec. 343.305(9)(a)5.; see also § 343.305(9)(c).

¶21 LaCrosse’s arguments on appeal regarding the lack of sufficient
evidence to find him guilty of the refusal are difficult to discern, but it appears that
he is making the following arguments: (1) he did not understand the implied
consent law in Wisconsin because he is from Arizona; and (2) Decker did not read
him the Informing the Accused form until after he refused the PBT request. 5
LaCrosse’s arguments are without merit.

¶22 As relevant to LaCrosse’s first argument, the circuit court found that
Decker properly read LaCrosse the Informing the Accused form, and LaCrosse
does not dispute that it was read to him correctly. The information contained in
the form is meant to inform the accused of the law in Wisconsin and the
consequences of refusing the test. For example, WIS. STAT. § 343.305(4)
specifically states that “[i]f you refuse to take any test that this agency requests,
your operating privilege will be revoked and you will be subject to other penalties.
The test results or the fact that you refused testing can be used against you in
court.” Given that LaCrosse admits that Decker correctly read the Informing the
Accused form to him, which contained an explanation of the law, he cannot now
claim that he was ignorant of the law in Wisconsin.

5
The City also suggests that LaCrosse again raises the issue that he was not driving. To
the extent that LaCrosse did intend to raise that issue on appeal as a basis to challenge his refusal
conviction, we have already concluded that the circuit court properly found that LaCrosse was
operating the vehicle that evening. See supra ¶¶12-14.

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¶23 LaCrosse’s second challenge is to the timeliness of Decker reading
him the Informing the Accused form. As the City acknowledges, it appears that
LaCrosse’s objection is based on his mistaken belief that the Informing the
Accused form should have been read to him before Decker’s request for a PBT.
LaCrosse fails to offer any legal authority in support of his belief.6 See Pettit, 171
Wis. 2d at 646. Instead, LaCrosse was properly read the Informing the Accused
form after he was arrested. See WIS. STAT. § 343.305(3)(a). It is undisputed that
after Decker read him the form, he refused a chemical test of his breath. The
evidence presented at trial demonstrates that the requirements of § 343.305(9)(a)
were met and that LaCrosse did refuse a requested chemical test of his breath
under Wisconsin law.

By the Court.—Judgments affirmed.

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

6
LaCrosse cites WIS. STAT. § 343.305(2) and (4) and emphasizes the word “request” and
“requested” in those subsections. However, the law enforcement officer’s “request” in those
subsections is based on the situations described in § 343.305(3)(a)-(ar), and LaCrosse fails to
explain how the officer here violated the statute relevant to any of those paragraphs.

LaCrosse also cites State v. Wilke, 152 Wis. 2d 243, 448 N.W.2d 13 (Ct. App. 1989), in
support of his position. In that case, a law enforcement officer failed to give the defendant one
component of the statutorily required information relating to penalties. Id. at 248. Wilke is
unlike this case, where it is undisputed that Decker properly complied with the requirements
under the statute.

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