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OWI – Sufficiency of Evidence; Closing Argument – Explanation of Element (“Operate,” OWI)

City of Beloit v. Steven A. Herbst, Sr., 2010AP2197, District 4, 1/12/12

court of appeals decision (1-judge, not for publication); for Herbst: Tracey A. Wood; case activity

Evidence held sufficient to support OWI conviction, where Herbst was found in parked car, slumped over the steering wheel with the engine running, along with evidence that the designated driver gave Herbst the keys to the vehicle so he could go to sleep. Village of Cross Plains v. Haanstad, 2006 WI 16, 288 Wis. 2d 573, 709 N.W.2d 447 (merely sitting behind wheel of car with engine running doesn’t establish “operating”), distinguished.

¶15      Herbst ignores our standard of review.  Certainly there was disputed evidence as to whether Herbst had turned on the ignition. However, there was ample circumstantial evidence that he did in fact turn on the ignition.  Howes saw Herbst slumped over the van’s steering wheel with the engine running.  Wood also observed the engine running.  Korn testified she gave Herbst the van keys so that he could sleep in the van and that she did not turn on the van’s ignition.  The only reasonable inference from this evidence is that Herbst manipulated the ignition by turning it on.  While there is no direct evidence that Herbst activated the ignition, the circumstantial evidence amply supports the jury’s verdict.

The prosecutor’s closing argument to the jury, that “operate” may be established merely by having hands on the steering wheel was, reversible error.

¶20      We conclude the trial court improperly exercised its discretion by overruling Herbst’s objection to the City’s erroneous statement of the law that manipulation of the controls of a motor vehicle includes placing hands on the steering wheel.  If the City meant to say that turning on the ignition of a motor vehicle and manipulating the steering wheel constitutes “operate” within the meaning of Wis. Stat.§ 347.63(3)(b), that is a correct statement of the law.  But that is not how the City framed its discussion of the meaning of “operate.”  The City plainly intended to convey to the jury that “operate” includes turning on the ignition, or, in the alternative, placing hands on the steering wheel. We know of no case law that stands for this proposition.[2]

¶22      Usually, errors of the type committed here may be cured by the court reading the appropriate jury instruction.  The court did so here.  However, the jury instruction explaining the meaning of “operate,” Wis JI-Criminal 2668, is stated in general terms, consistent with its statutory definition.  The instruction itself does not parse out the various ways by which a person may manipulate or activate the controls of a motor vehicle as a way of providing concrete examples of what constitutes “operate.”  That is a problem here because the jury was left with the erroneous impression that manipulating the controls of a motor vehicle included turning on the ignition, or pressing down the gas pedal, or—significant here—placing one’s hands on a steering wheel.  The City appears to concede this error, never addressing at all in their briefing the issues of the closing argument or the jury instruction relating to “operate.”

¶23      Consequently, although we conclude there was sufficient evidence to convict Herbst of OWI, it is impossible to discern whether the jury convicted Herbst of OWI because he turned on the ignition, which was in dispute; pressed his foot on the gas pedal, which was also in dispute; or by having his hands on the steering wheel, which was not in dispute.  We therefore conclude that the court’s error was not harmless because it is not possible to determine from the record whether the jury applied the correct law in finding Herbst guilty of OWI.  …

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