Sufficiency of Evidence

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Carl Lee McAdory

Case No.: 2020AP2001-CR

Officials: Blanchard, P.J., Fitzpatrick, and Graham, JJ.

Focus: Sufficiency of Evidence

A jury found Carl McAdory guilty of two driving-related offenses after hearing evidence that a chemical test of a sample of his blood, drawn after he was arrested following a traffic stop, showed the presence of cocaine and marijuana. The two driving-related offenses were operating a motor vehicle while intoxicated, in violation of WIS. STAT. § 346.63(1)(a) (2019-20) (which we refer to as “the impaired-by-drugs offense”), and operating with a restricted controlled substance, in violation of § 346.63(1)(am) (which we refer to as “the strict-liability offense”). Under the statutory dual prosecution scheme, in this situation there can be only one conviction, not two. See § 346.63(1)(c). After the trial, the State elected to move to dismiss the strict-liability offense, and the circuit court entered a conviction on the impaired-by-drugs offense and proceeded to sentencing.

We address two arguments that McAdory makes on appeal challenging his conviction on the impaired-by-drugs offense. First, he argues that the evidence at trial was insufficient to sustain the conviction. We conclude that the evidence was sufficient. Second, McAdory makes a due process argument based on the following facts: the prosecution misled the jury in its opening statement and closing argument about what the State had to show to prove that he was “under the influence,” one element of the impaired-by-drugs offense, and there was no direct correction of these misleading statements; the evidence was weak that McAdory operated his car while he was under the influence of cocaine and marijuana; and, over the defense attorney’s objection, the circuit court modified the pattern jury instruction for the impaired-by-drugs offense in a manner that created ambiguity regarding the “under the influence” element. We conclude that when these trial events are considered together there is a reasonable likelihood that the State was effectively relieved of its burden to prove that McAdory was “under the influence” of cocaine and marijuana while driving. Based on this violation of his right to due process of law, we reverse and remand for a new trial on the impaired-by-drugs offense.

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Derek A Hawkins is Corporate Counsel, at Salesforce.