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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.
March 4, 1999
A party may file with the Supreme Court a
Marilyn L. Graves                                                                     petition  to  review  an  adverse  decision  by  the
Clerk, Court of Appeals                                                               Court of Appeals.  See § 808.10 and RULE 809.62,
of Wisconsin                                                                          STATS.
Nos.  98-1140
98-2080-CR
STATE OF WISCONSIN                                                                    IN COURT OF APPEALS
                                                                                      DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JEFFREY S. LOVE,
DEFENDANT-APPELLANT.
APPEAL  from a judgment and  an order  of  the circuit court for
Crawford County:   MICHAEL KIRCHMAN, Judge.   Affirmed.
VERGERONT, J.1    Jeffrey  S.  Love  appeals  his  judgment  of
conviction for operating a motor vehicle while under the influence of an intoxicant
in violation of § 346.63(1)(a), STATS., and an order of revocation resulting from
his refusal to submit to a blood test as required by the implied consent law.   See
1    This appeal is decided by one judge pursuant to § 752.31(2)(f), STATS.




Nos. 98-1140
98-2080-CR
§ 343.305(10), STATS.   He argues:                                                                      (1) there was insufficient evidence at trial for
the court to find beyond a reasonable doubt that Love was driving the vehicle, and
(2) there was insufficient evidence at the refusal hearing to establish probable
cause that he was the driver.   We conclude, viewing the evidence most favorably
to the conviction, a reasonable trier of fact could have found beyond a reasonable
doubt that Love was driving.    We also conclude the State presented sufficient
evidence at the refusal hearing to establish that the deputy’s determination of
probable cause was plausible.   We therefore affirm.
BACKGROUND2
While on duty at approximately 1:30 a.m. in the morning, Deputy
McCullick came upon the scene of a single vehicle accident.   He observed a truck
that had apparently hit a sign and driven off the road about fifteen feet.   Two men
were asleep in the truck:   Jeffrey Love, the defendant, was on the driver’s side of
the bench seat and John Love, the defendant’s brother, was on the passenger side.
Both men were in sitting positions and had to be awakened by the deputy.   They
did not know they had been in an accident and they did not remember anything
about it.  They were both intoxicated.3
After Love was transported to a hospital, Deputy McCullick told
Love he would be issuing Love a citation for operating a motor vehicle under the
influence of an intoxicant.    Love responded by saying he was not the driver.
2    The facts in the background section are taken from the evidence presented at the trial
to the court.   Additional facts taken from testimony at the refusal hearing that are relevant to the
probable cause determination are discussed later.
3    Love conceded that he was intoxicated.  The only issue at the trial was whether he was
driving the truck.   John Love also testified that he (John) was intoxicated at the time of the
accident.
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Nos. 98-1140
98-2080-CR
Deputy McCullick testified that when he asked who was driving, Love said either
he did not know or he could not remember.   Deputy McCullick issued the citation
based on the fact that he found Love behind the wheel with the keys in the ignition
after an accident.   Love refused permission for a blood test.
During the trial to the court, both Love and his brother testified that
the last thing they remembered was getting in the truck and leaving a bar in
Lynxville, about seven miles away from the accident site.   When they left the bar,
Jamie Smith, the owner of the truck, was driving, Love was sitting in the middle
and his brother was on the passenger side.   Love said that he fell asleep as they
drove away and did not wake up until the deputy woke him after the accident.
Love said he did not know for sure who was driving during the accident because
he was asleep, but that he was sure it was not him.
Deputies from the Sheriff’s Department testified that the truck was
registered to Smith and that Smith did pick up the truck from the police the next
day.   Deputy McCullick testified that someone whom he assumed to be Smith was
picked up by first responders (presumably the emergency medical technicians) as
he  was  walking  towards  Lynxville  sometime  after  the  accident.     Deputy
McCullick also testified that Smith had a bad driving record and his license was
either suspended or revoked.
In its oral decision, the court made the following findings of fact:
(1) the testimony that Smith was driving the truck when the three men left the bar
in Lynxville was credible, but  (2) Love’s testimony that he knew he was not
driving at the time of the accident was not credible, (3) the inference that Smith
was the driver at the time of the accident and had left the scene after the accident
was speculative, and (4) the deputy found Love sitting behind the wheel of the
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Nos. 98-1140
98-2080-CR
truck with the keys in the ignition shortly after the accident.   The court concluded
that Love was the driver and found him guilty beyond a reasonable doubt.
Love argues there was insufficient evidence presented at the trial for
the court to find beyond a reasonable doubt that he was the driver of the truck at
the time of the accident.   In reviewing the sufficiency of the evidence in a criminal
trial to the court, we do not disturb the trial court’s findings unless they are
contrary to the great weight and clear preponderance of the evidence.   State v.
Bartlett,                                                                                 149  Wis.2d  557,  564,  439 N.W.2d  595,  599  (Ct. App.  1989)  (citing
Jameson v. State, 74 Wis.2d 176, 181, 246 N.W.2d 541, 544 (1976)).   Therefore,
the issue on this appeal is whether the trier of fact could, acting reasonably, be
convinced that Love was driving by evidence it had a right to believe and accept
as true.   Id. at 564-65, 439 N.W.2d at 599.   If there is more than one inference that
can be drawn from the evidence, we must adopt the inference that supports the
trial court’s finding.   Id. at 565, 439 N.W.2d at 599.
In State v. Poellinger, 153 Wis.2d 493, 451 N.W.2d 752 (1990), the
supreme court explained this standard of review when, as in this case, the defense
has presented an arguably reasonable theory of innocence:
A theory of innocence which appears to be reasonable to an
appellate  court  on  review  of  the  record  may have  been
rejected as unreasonable by the trier of fact in view of the
evidence and testimony presented at trial.   It is the function
of the trier of fact, and not of an appellate court, to fairly
resolve conflicts in the testimony, to weigh the evidence,
and  to  draw  reasonable  inferences  from  basic  facts  to
ultimate facts.
In  viewing  evidence  which  could  support  contrary
inferences,  the  trier  of  fact  is  free  to  choose  among
conflicting inferences of the evidence and may, within the
bounds of reason, reject that inference which is consistent
with the innocence of the accused.   Thus, when faced with
a record of historical facts which supports more than one
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Nos. 98-1140
98-2080-CR
inference, an appellate court must accept and follow the
inference drawn by the trier of fact unless the evidence on
which that inference is based is incredible as a matter of
law.
Id. at 506-07, 451 N.W.2d at 757 (citations omitted).
We conclude that there is reasonable evidence supporting the trial
court’s finding of guilt beyond a reasonable doubt:   Love was found shortly after
the accident asleep in a sitting position behind the wheel of the truck, rather than
in the middle of the bench seat or on the passenger side, where one would expect
to find a passenger.   Additionally, the court found that Love did not remember
whether he was driving and therefore discounted Love’s testimony that he was not
the driver.   Based on these facts, the trial court’s conclusion that Love is guilty
beyond  a  reasonable  doubt  is  not  “incredible  as  a  matter  of  law.”    Id.    We
therefore need not consider Love’s “theory of innocence”—that while Love was a
sleeping passenger, Smith was driving his (Smith’s) truck, had an accident, and,
motivated by his bad driving record and the fact that he was not a licensed driver,
left the accident scene on foot.
The defendant also argues there was insufficient evidence for the
trial court’s finding of probable cause at the refusal hearing.   At a refusal hearing
the  State  needs  to  present  only  enough  evidence  to  show  that  the  officer’s
determination of probable cause was plausible.   State v. Wille, 185 Wis.2d 673,
681, 518 N.W.2d 325, 328 (Ct. App. 1994).   The trial court is not to weigh the
evidence  for  and  against  probable  cause  or  determine  the  credibility  of  the
witnesses; it need only determine if the State’s account is plausible.  Id.
We conclude, as the trial court did, that the deputy’s determination
of probable cause was plausible.   He found Love asleep or unconscious in the
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Nos. 98-1140
98-2080-CR
driver’s seat of the truck.   Although Love denied that he was driving, he did not
indicate who was driving and no one else was around except for Love’s brother,
who was asleep in the passenger seat of the truck.   Although there was admissible
hearsay evidence at the refusal hearing that Smith, the owner of the truck, was
picked up by first responders three miles from the accident claiming that two men
stole his truck, this evidence does not defeat probable cause:   the deputy did not
know  how  Smith  would  have  walked  three  miles  away  so  quickly  after  the
accident if he were actually the driver instead of Love, Love did not indicate that
Smith was the driver, and the deputy was not even certain that the man three miles
away was Smith.
By the Court.—Judgment and order affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)4, STATS.
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