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COURT OF APPEALS
DECISION                                                                                      NOTICE
DATED AND FILED
This  opinion  is  subject  to  further  editing.  If
published, the official version will appear in the
bound volume of the Official Reports.
October 26, 2000
A  party  may  file  with  the  Supreme  Court  a
petition  to  review  an  adverse  decision  by  the
Cornelia G. Clark
Court of Appeals.   See WIS. STAT. § 808.10 and
Clerk, Court of Appeals
RULE 809.62.
of Wisconsin
No.                                                                                           00-1008
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STATE OF WISCONSIN                                                                            IN COURT OF APPEALS
                                                                                              DISTRICT IV
COUNTY OF DANE,
PLAINTIFF-RESPONDENT,
V.
JOHN S. MCKENZIE,
DEFENDANT-APPELLANT.
APPEAL  from  judgments  of  the  circuit  court  for  Dane  County:
C. WILLIAM FOUST, Judge.  Affirmed.
¶1                                                                                            DEININGER, J.1    John  McKenzie  appeals  judgments  convicting
him of  operating  a  motor  vehicle  while  under  the  influence  of  an  intoxicant
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (1997-98).
All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.




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(OMVWI) and failure to notify police of an accident.2   He claims the County did
not establish that the blood test result admitted at trial was from the blood sample
taken from him following his arrest, and that the County did not prove that his
vehicle sustained property damage in an amount requiring police to be notified.
We reject both claims and affirm the appealed judgments.
BACKGROUND
¶2                                                                                                         The testimony at McKenzie’s court trial relevant to the issues he
raises on appeal is as follows.   The arresting deputy testified that he transported
McKenzie to a hospital for the blood draw, and thereafter, that he placed the
sample in a refrigerator located in the evidence room at the Dane County Public
Safety Building.   Later that morning, another deputy took the sample to the State
Hygiene Laboratory.   There, he had “the analyst who I physically turn over the
sealed kit to” sign a Dane County “Transmittal of Evidence Form,” to indicate
receipt of the sample.   The form was signed by “Laura J. Liddicoat” at “9:35 a.m.”
on “7-3-99,” although the deputy testified that the transfer was accomplished on
July 8, 1999.
¶3                                                                                                         The blood sample was analyzed by Noel Stanton on July 12, 1999.
Stanton testified that he opened the “shipping container” at 9:18 a.m. on that date
and noted on the Blood/Urine Analysis form, which accompanies the sample, that
the “[s]pecimens … were labeled and sealed.”   He also noted on the form that the
sample had been “[d]elivered by Dep. Schlicht   7-8-99   0935,” and explained:
2  McKenzie was also convicted of failure to keep his vehicle under control, but he raises
no  issue  relating  to  that  conviction  in  these  consolidated  appeals.    Also,  the  court  found
McKenzie guilty of both OMVWI and operating with a prohibited alcohol concentration, but it
entered judgment only on the former.
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My denotation that they were labeled means that the blood
tubes had a name that corresponded to the subject name in
that box [on the Blood/Urine Analysis form], in this case
John  McKenzie.     The  fact  that  they  were  sealed  is
shorthand to indicate that there were adhesive seal strips
over the rubber caps of the blood tubes.   I also noted that
the package had been delivered to the laboratory by Deputy
Schlicht on July 8th at 9:35 a.m.
Stanton also said that “the vials or any of the packaging” did not “appear to have
been tampered with in any way,” and that the sample yielded a test result of “.195
grams of ethanol per 100 milliliters of blood.”
¶4                                                                                    McKenzie objected to admission of the blood test result, noting the
discrepancies in dates of receipt and the identity of the person at the Hygiene Lab
who received the sample from the deputy.   He thus argued that the County had not
established that the sample Stanton analyzed and reported on was the one drawn
from him following his arrest.   The court reviewed the testimony and exhibits and
concluded:
Frankly, I don’t have an issue—On the record before
me, I don’t have a question about whether or not the blood
that was tested was the blood from Mr. McKenzie.                                      [The
Blood/Urine  Analysis  form]  travels  with  that  blood.
There’s  nothing  to  suggest  that                                                   [the  form]  that  has
McKenzie’s name on it and the blood draw, the information
on it, somehow got separated from the McKenzie tubes
around it with some other tubes.
The  question  is  whether  or  not  there  is  reason  to
suspect tampering with the McKenzie samples and there’s
[not] any concern about that.   I think I’d have to guess that
between  9:35  and  9:38  on  July  8th,  Ms.  Liddicoat  did
something with the blood.    I’m not willing to make that
much of a stretch.
I think that the State [sic] in proving up a chain of
custody has to satisfy me that as to the integrity of the
evidence, that it remained the same between gathering and
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examination and that what was examined was that which
was gathered.   On the record here, frankly, I’m satisfied as
to that….
¶5                                                                                        During  the  trial,  the  arresting  deputy  testified  that  he  had
investigated “hundreds” of motor vehicle accidents, and that from this experience,
“[i]t’s very easy to tell for the most part by looking at it and the extent of injury …
if it’s a reportable accident.”   He also testified that, in his opinion based on his
observations, the damage sustained by McKenzie’s vehicle in the one-car accident
at issue  “was over a thousand dollars.”    Another deputy who investigated the
McKenzie  accident  testified  that  he  had  investigated                                “between                                                                 50  and  100
accidents,” and in so doing had access to data on “approximate costs of vehicle
damage,”  and  that  he  believed  the  McKenzie  vehicle  had  sustained  damage
“greater  than  one  thousand  dollars.”    In  both  instances,  the  court  overruled
McKenzie’s objections on foundation grounds, concluding “[t]hat’s part of what
policemen investigating accidents do.”
¶6                                                                                        At the close of the trial, the court concluded that the County had met
its burden of establishing by clear and convincing evidence that (1) McKenzie had
operated his vehicle  “at a speed that was more than reasonable and prudent”;
(2) he failed to immediately report to police an accident as required under WIS.
STAT.  § 346.70; and  (3) he was guilty of both OMVWI and operating with a
prohibited  alcohol  concentration.                                                       Judgments  of  conviction  were  entered
accordingly, and McKenzie appeals.
ANALYSIS
¶7                                                                                        The County does not dispute, nor could it, McKenzie’s assertion that
if the blood that was analyzed was not his, the blood test result was not relevant
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evidence and was thus inadmissible.   The parties also agree that the standard to be
applied is the one we described in B.A.C. v. T.L.G., 135 Wis. 2d 280, 400 N.W.2d
48 (Ct. App. 1986):
[A] chain of custody, or authentication, must be established
before expert testimony as to blood tests … or the samples
themselves may be admitted as relevant evidence.
The degree of proof necessary to establish a chain of
custody is a matter within the trial court's discretion.… The
testimony must be sufficiently complete so as to render it
improbable  that  the  original  item  has  been  exchanged,
contaminated or tampered with.
Id. at 289-90 (citations omitted).
¶8                                                                                      McKenzie argues the County did not meet its burden to establish that
the blood Mr. Stanton analyzed on July 12, 1999, was McKenzie’s, or that the
sample had not been tampered with.   The County responds that the trial court did
not erroneously exercise its discretion in determining that it had established a
chain of custody for the blood sample.   We agree.   We have described above the
relevant testimony and documentary evidence on the issue, as well as the court’s
ruling on it.   We are satisfied that the trial court applied the correct law to the
relevant  facts,  and  through  a  well-articulated,  rational  process,  reached  a
conclusion which a reasonable judge could reach.   See Loy v. Bunderson, 107
Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982).   Moreover, we note that McKenzie
did not file a reply to the County’s explication of the trial court’s proper exercise
of discretion.   See Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct.
App.  1994)  (An appellant  “cannot complain” when  “the respondent raises the
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grounds relied upon by the trial court, and the appellant fails to dispute these
grounds in a reply brief.”).3
¶9                                                                                                    McKenzie’s second claim of error is that the trial court should not
have relied on the testimony of police officers to establish the property damage
threshold under WIS. STAT. § 346.70.4   According to McKenzie, “[p]olice officers
without demonstrated training in the estimating of vehicle repair costs lack the
requisite expertise to offer more than a lay opinion on such matters.”   It is not
entirely clear from McKenzie’s brief argument on this issue whether he challenges
the court’s discretionary ruling to permit the testimony, or whether his claim is
that the court’s finding the accident to be reportable under the statute was clearly
erroneous.   We are not persuaded the trial court committed either error.
¶10    First, whether to permit a witness to testify as an expert on a given
issue  lies  within  the  trial  court’s  discretion,  and  one  need  not  have  actually
performed a specific activity, or within a specific field, in order to gain expertise
on that activity or field.   See Tanner v. Shoupe, 228 Wis. 2d 357, 369, 374-75,
596  N.W.2d  805  (Ct.  App.  1999).    We  conclude  that  the  trial  court  did  not
erroneously exercise its discretion in crediting the officers’ experience as traffic
accident investigators as sufficient foundation for them to give opinion testimony
3  McKenzie  also  argues  that,  without  the  blood  test  result,  there  was  insufficient
evidence to convict him of OMVWI.   We do not reach this issue, given that we conclude the trial
court did not err in admitting the blood test result.
4  WISCONSIN  STAT.  § 346.70(1) provides, in relevant part that  “[t]he operator of a
vehicle involved in an accident resulting in … total damage to property owned by any one person
…  to  an  apparent  extent  of  $1,000  or  more  shall  immediately  by  the  quickest  means  of
communication give notice of such accident to the police department, the sheriff's department or
the traffic department of the county or municipality in which the accident occurred or to a state
traffic patrol officer.”
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on whether the dollar value of the damages sustained by McKenzie’s vehicle
exceeded the statutory reporting threshold.    Second, even if not admissible as
expert opinion, the court could have received the officer’s estimates of value as lay
opinion, given that the opinions were “rationally based on the perception of the
witness and helpful to a clear understanding of the witness’s testimony or the
determination of a fact in issue.”   See WIS. STAT. § 907.01.
¶11    Finally, to the extent that McKenzie’s challenge goes to the weight
and credibility to be given the officers’ damage value estimates, these matters are
absolutely the province of the trier of fact.   See State v. Poellinger, 153 Wis. 2d
493, 503-04, 451 N.W.2d 752 (1990).   Here, in addition to the officers’ testimony,
the court had before it a photograph showing extensive damage to the right front
quarter-panel, head and running lights and bumper of McKenzie’s sports utility
vehicle.    We conclude that the court’s finding that McKenzie had been in an
accident meeting the  reporting threshold under  WIS. STAT.  § 346.70(1) is not
clearly erroneous.
CONCLUSION
¶12    For the reasons discussed above, we affirm the appealed judgments.
By the Court.—Judgments affirmed.
                                                                                        This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                               (b)4.
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