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OWI, § 346.63(2)(a)1 – Operating on “Public” Roadway, Gated Community

State v. Michael F. Hyzy, 2011AP2503-CR,    District 2, 5/2/12

court of appeals decision (1-judge, not for publication); for Hyzy: Jefren E. Olsen, SPD, Madison Appellate; case activity

Evidence held sufficient to uphold OWI guilty verdict, against argument of failure of proof that roadways of gated community were “held out to the public for use of their motor vehicles.”

¶11      Construing this evidence in the conviction’s favor, it is not so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt.  See Poellinger, 153 Wis. 2d at 501. The jury could reasonably conclude that the roadways of Abbey Springs are held out to the public for use of their motor vehicles, given that it heard that a village-employed police officer responded to this traffic accident and given that both O’Brien and Cox testified to the easy access the public has to Abbey Springs.  Accordingly, we uphold the jury’s verdict because we conclude that the jury could have drawn the appropriate inferences from the evidence adduced at trial to find the streets of Abbey Springs are “held out to the public for use of their motor vehicles” and, with that, the requisite guilt.  See id. at 507.

Hyzy’s distinct argument (based on a showing very creatively adduced at postconviction hearing), in effect that by restricting access through gated security posts Abbey Springs as a matter of law isn’t open to public use, meets the same fate:

¶16      In analyzing this case, we are keenly guided by State v. Tecza, 2008 WI 79, 312 Wis. 2d 395, 751 N.W.2d 896.  Tecza, like Hyzy, was charged with OWI in a gated community.  See id., ¶¶2, 14.  In Tecza, as in this case, we examined whether the roadways within a gated community were “held out to the public for use of their motor vehicles.”  See id., ¶11.

¶18      After discerning the ease with which the public could access the gated community of Geneva National, we held, “The roadways of Geneva National Community were ‘held out to the public for use of their motor vehicles’ because on any given day any licensed driver could enter the Community unchallenged; therefore, the drunken driving law of the State applies as provided in Wis. Stat. § 346.61.”  See Tecza, 312 Wis. 2d 395, ¶22.

¶21      Like the gated community in Tecza, Abbey Springs rolls out a wide welcome mat, allowing the public in to play golf, attend weddings, use its fitness center, and participate in high school activities like a postprom party.  See id.  Just as the facts demonstrated in Tecza, the facts here likewise demonstrate that a purpose of the security station at Abbey Springs is to facilitate entry into Abbey Springs for those without decals or passes.  See id.

¶22      Furthermore, Abbey Springs, like the gated community in Tecza, holds its roadways out for use by the public by permitting the municipal police department to patrol the roadways.  See id., ¶21.  As we held in Tecza, a police presence on the roadways of a gated community is “an indication of an explicit intent to hold the roadways out to the public for the use of their vehicles.”  See id.

¶23      From these facts, it is clear that on any given day any driver can enter Abbey Springs unchallenged.  As a result, the roadways of Abbey Springs are “held out to the public for use of their motor vehicles.”  See id., ¶¶19, 22.

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