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Discrepancy between officer’s testimony and written report doesn’t mean factual findings were clearly erroneous

State v. Andrew J. Joda, 2014AP1949 & 2014AP1950, District 2, 5/6/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Given the trial court’s conclusion that Deputy Becker’s testimony was more credible than Joda’s testimony, the court factual findings are not clearly erroneous just because there was a discrepancy between Becker’s testimony and his written report and Becker was unable to remember exactly where he was when he saw Joda make an illegal u-turn.

¶8        The trial court found Becker’s testimony more credible than Joda’s because of the significant amount of alcohol that Joda had consumed that night—six or seven drinks by his own admission. The court also considered the time gap in Joda’s story…, which the court found to be evidence of a flawed memory. In contrast, there was no evidence that Becker had been drinking. The trial court also acknowledged that Becker’s report contained a discrepancy—presumably the court was referring to the misstatement that Joda was positioned to turn left into the westbound, rather than eastbound, off ramp—but found “the testimony of Deputy Becker more credible than Mr. Joda.” Becker “simply made a mistake in his reports. That doesn’t negate reasonable suspicion.” See State v. Walli, 2011 WI App 86, ¶14, 334 Wis. 2d 402, 799 N.W.2d 898 (“Where the underlying facts are in dispute, the trial court resolves that dispute by exercising its fact-finding function, and its findings are subject to the clearly erroneous standard of review.”). As the State aptly put it, “Although, a misstatement in Deputy Becker’s police report may support the defense’s theory that the U-turn was not illegal, it is not sufficient to support a holding that the trial Court’s factual findings are clearly erroneous.” Credibility determinations are for the trier of fact, and we will not overturn them unless they are against the great weight of the evidence. The trial court’s conclusions were supported by Becker’s testimony.

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