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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
DECEMBER 27, 1995
A party may file with the Supreme Court                                           This opinion is subject to further editing.
a petition to review an adverse decision                                          If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                        appear  in  the  bound  volume  of  the
RULE 809.62(1), STATS.                                                            Official Reports.
No.   95-2128-CR
STATE OF WISCONSIN                                                                IN COURT OF APPEALS
                                                                                  DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GARY R. KNUTSON,
Defendant-Appellant.
APPEAL  from  a  judgment  of  the  circuit  court  for  Waukesha
County: KATHRYN W. FOSTER, Judge.  Affirmed.
ANDERSON, P.J.      The narrow issue presented in this appeal is
whether a tavern parking lot with signs declaring that the lot was for “Bike
Parking Only” was an area held out to the public for their motor vehicles.   A
jury concluded that it was and convicted Gary R. Knutson of drunk driving.   In
this appeal, Knutson calls upon this court to review the jury’s verdict with
respect to whether he was driving on premises held out to the public.




No.  95-2128-CR
We will uphold the verdict  “unless the evidence, viewed most
favorably to the state and the conviction, is so lacking in probative value and
force that no trier of fact, acting reasonably, could have found guilt beyond a
reasonable doubt.”   State v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752,
758 (1990).   In addition, we are obligated to accept and follow the inferences
drawn by the jury unless the evidence on which those inferences are based is
incredible as a matter of law.  See id.
Knutson was arrested for drunk driving in the parking lot of a
tavern after the police received a citizen’s complaint about an accident in the lot.
The accident occurred in the tavern’s upper parking lot when Knutson backed
over a motorcycle.   The tavern catered to motorcyclists and when there was a
large crowd the tavern would post portable signs at either end of the tavern
building advising  “Bike Parking Only.”    The signs were not posted at the
entrance of the parking lot, but they were visible from the state trunk highway
that paralleled the premises.
On appeal, Knutson maintains the argument that comprised his
primary defense at trial.  He concedes that the applicability of the drunk driving
laws is not restricted to persons operating on a public highway; § 346.61, STATS.,
provides:
In addition to being applicable upon highways, ss. 346.62 to 346.64
are  applicable  upon  all  premises  held  out  to  the
public for use of their motor vehicles, whether such
premises  are  publicly  or  privately  owned  and
whether or not a fee is charged for the use thereof.
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No.  95-2128-CR
However,  Knutson  argues  that  this  statute  requires  the  State  to  produce
evidence that it was the intent of the tavern owner to allow the parking lot to be
used by the public and that the State failed to fulfill its burden.
Section                                                                              346.61,  STATS.,  was  construed  in  City  of  Kenosha  v.
Phillips, 142 Wis.2d 549, 419 N.W.2d 236 (1988).   In Phillips, the supreme court
held that it was the burden of the prosecution to present “proof that it was the
intent of the owner to allow the premises to be used by the public.”   Id. at 554,
419 N.W.2d at 238.   In the absence of proof of the owner’s intent, the drunk
driving laws would not be applicable to incidents occurring off of a public
highway.   The supreme court explained that the burden of establishing that the
premises were held out for public use could be satisfied in many ways:
Holding out can be by action or inaction that would make the
intent explicit or implicit.   Either action or inaction
might,  in  appropriate  circumstances,  constitute  a
holding out to the public, but the burden of proof is
on the proponent of the applicability of the statute.
Id. at 558-59, 419 N.W.2d at 239-40.
We agree with Knutson that the testimony of the bartender on
duty the day of the accident is not direct evidence of the intent of the owner
because the bartender was an employee without any ownership, management
or supervisory interest.   However, we disagree with Knutson that the only real
evidence of the owner’s intent was the “Bike Parking Only” signs and that the
only inference that could be drawn from this evidence was that the owner
intended not to hold out the tavern’s parking lot for public use.
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No.  95-2128-CR
In City of LaCrosse v. Richling, 178 Wis.2d 856, 860, 505 N.W.2d
448, 449 (Ct. App. 1993), we developed a commonsense test for the application
of                                                                                          §  346.61,  STATS.,   “the  appropriate  test  is  whether,  on  any  given  day,
potentially any resident of the community with a driver’s license and access to a
motor vehicle could use the parking lot in an authorized manner.”
Applying this test to the facts of this case, we conclude that there is
sufficient circumstantial evidence of the tavern owner’s intent to support the
jury’s verdict that the parking lot was held out for use of the public.    See
Phillips, 142 Wis.2d at 558, 419 N.W.2d at 239.   The “Bike Parking Only” signs
were portable signs that were not permanently posted, they were not posted at
the entrance of the parking lot and they did not warn violators of potential
consequences for disobedience.1  And, because the signs were portable and only
used when there was a large number of motorcyclists at the tavern, the jury
could reasonably infer that the parking lot was not maintained for the benefit
and use of motorcyclists.2   The imprecise makeup and random use of the signs
1   In comparison, in City of Kenosha v. Phillips, 142 Wis.2d 549, 419 N.W.2d 236 (1988),
the signs were permanently posted at the entrance of the parking lots, limited parking to
employees of AMC and warned violators of potential consequences.   From this evidence,
without the testimony of the owner or manager of AMC, the supreme court concluded
that the parking lot was not held out to the public.  See id. at 559, 419 N.W.2d at 240.
2   In comparison, the trial court found that there was “no question that the parking lot
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No.  95-2128-CR
permit the jury to reach the reasonable conclusion that the owner had no
intention to restrict the use of the parking lot.
In addition, although the testimony of the bartender is not direct
evidence of the owner’s intent, it is circumstantial evidence of that intent.   A
jury could reasonably infer that the bartender was given instructions pertaining
to the use of the parking lot.   The bartender testified that access to the upper lot
was not restricted to motorcycles when the signs were posted and that anyone
could enter the lot for any purpose.   She also testified that any person could
park his or her motor vehicle in the lot and leave it there and no action would
be taken to remove the motor vehicle.
We  conclude  that  the  circumstantial  evidence  and  reasonable
inferences support the jury’s determination that the tavern premises were held
out to the public for the use of their motor vehicles.    Therefore, we affirm
Knutson’s conviction for his fourth drunk driving offense.
By the Court.—Judgment affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)4, STATS.
(..continued)
was owned and maintained by American Motors for the benefit of their employees.”
Phillips, 142 Wis. 2d at 553, 419 N.W.2d at 237.
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