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Circuit court’s findings about driving not clearly erroneous

State v. Nicholas W. Stern, 2016AP1534, District 3, 2/7/17 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court implicitly credited the testimony of a police officer that Stern was in the wrong lane of travel as he drove toward the officer, and therefore held the officer had reasonable suspicion to stop Stern for violating § 346.05(1). The circuit court’s finding is not clearly erroneous, despite Stern’s claim the officer’s testimony is contradicted by the squad car video, which he says shows Stern maintaining his lane as he approached and passed the officer.

¶12     Having independently reviewed the squad car video, we conclude the circuit court’s finding that Stern operated his vehicle in the wrong lane of travel is not clearly erroneous. Contrary to Stern’s assertion, the video does not conclusively show that Stern operated his vehicle in the correct lane at all times. Consequently, we cannot conclude the circuit court’s finding that the video showed Stern’s vehicle crossing the center line is clearly erroneous. “[A] factual finding is not clearly erroneous merely because a different fact-finder could draw different inferences from the record.” State v. Wenk, 2001 WI App 268, ¶8, 248 Wis. 2d 714, 637 N.W.2d 417.

¶13     Moreover, the circuit court’s ultimate finding that Stern’s vehicle crossed the center line was also based on [Officer] Albertson’s testimony, which the court implicitly found credible. See Derr v. Derr, 2005 WI App 63, ¶40, 280 Wis. 2d 681, 696 N.W.2d 170 (when an express finding is not made, we normally assume the circuit court made findings in a manner that supports its final decision). The court’s implied finding regarding Albertson’s credibility is not “inherently or patently incredible or in conflict with the uniform course of nature or with fully established or conceded facts,” and, accordingly, we are not free to disregard it. See Yates v. Holt-Smith, 2009 WI App 79, ¶25, 319 Wis. 2d 756, 768 N.W.2d 213.

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