State v. Michael G. Mertes, 2008 WI App 179, PFR filed 12/17/08
For Mertes: Andrea Taylor Cornwall, SPD, Milwaukee Appellate
Issue: Whether finding the sleeping occupant of a vehicle parked at a gas station, with engine off but key in the ignition, along with other factors sufficiently proved the OWI element of “operating.”
¶13 Wisconsin Stat. § 346.63(3)(b) defines “operate” as “the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.” Mertes’ argument focuses almost exclusively on the definition of “operation” under Wis. Stat. § 346.63 and whether Mertes’ presence in the driver’s seat of the vehicle with the engine off but with the keys in the ignition is sufficient to prove “operation.” Mertes’ argument misses the mark. The issue is not whether Mertes was operating the vehicle at the moment the police approached him, but rather whether there was enough circumstantial evidence to prove that he drove the car to the gas station. 
¶14 “Circumstantial evidence is evidence from which a jury may logically find other facts according to common knowledge and experience.” Wis JI—Criminal 170. Here, the State’s case was built on circumstantial evidence—or, as the State characterizes it, “the entirely reasonable inference that Mertes had operated the car before the police ever arrived on the scene by driving it into the gas station.” The circumstantial evidence underlying the State’s theory included: (1) Mertes sitting behind the wheel of a vehicle parked at a gas pump with the keys in the ignition in the auxiliary position, (2) his statement that he had been there for approximately ten minutes, (3) his statement that he had come from Milwaukee and was headed back to Milwaukee, and (4) the lack of any evidence to suggest that the passenger (or any other specifically identified individual) had operated the vehicle—indeed Rocklewitz testified that the passenger in the vehicle was incoherent and unable to remain awake. As the State aptly points out, “Vehicles do not simply materialize next to gas pumps at filling stations. They are driven to such locations.”
Village of Cross Plains v. Kristin J. Haanstad, 2006 WI 16, distinguished, ¶13 n. 5, on basis “that there was undisputed evidence in Haanstad that someone else had driven the vehicle to that spot.” Milwaukee County v. Proegler, 95 Wis. 2d 614, 628, 291 N.W.2d 608 (Ct. App. 1980) (“operating” subject to proof by circumstantial evidence, so that “operating” may be found where occupant is found in parked car with engine running), extended:
¶16 While the motor in this case was not running, the keys were in the ignition, the parking and dash lights were on. We believe that even absent a running motor, the jury was entitled to consider the circumstantial evidence in this case to determine how and when the car arrived where it did and whether it was Mertes who operated it. Indeed, the supreme court contemplated the potential for such a case in Burg ex rel. Weichert v. Cincinnati Casualty Insurance Co., 2002 WI 76, 254 Wis. 2d 36, 645 N.W.2d 880. There, the court observed, “‘[O]peration’ for purposes of the drunk driving laws can be proved circumstantially. A defendant found intoxicated behind the wheel of a parked car with its engine off but still warm might well be prosecuted on that circumstantial evidence of recent ‘operation.’” Id., ¶27 n.8.
Evidence also held sufficient with respect to operating on “highway”:
¶19 Mertes’ argument on appeal is limited to whether a gas station parking lot qualifies as a “highway.” He does not dispute, and could not dispute, that the roads leading to the gas station are indeed “highways” as defined by Wis. Stat. § 340.01(22).  Having concluded that the circumstantial evidence was sufficient to support the jury’s verdict that Mertes operated a motor vehicle, we likewise conclude that the same evidence is sufficient to support a finding that he had done so on a highway prior to arriving at the gas station.