Sufficiency of Evidence-Jury Instructions

Listen to this article

WI Court of Appeals – District III

Case Name: State of Wisconsin v. David A. Schultz

Case No.: 2022AP001622-CR

Officials: Stark, P.J.

Focus: Sufficiency of Evidence-Jury Instructions

On the evening of January 17, 2020, Schultz was leaving the Bull Pen Bar in Eau Claire, Wisconsin, when he backed his vehicle into a truck parked behind him. The owner of the truck also happened to be leaving the bar at the same time and witnessed Schultz hit his truck. The accident occurred in the parking lot located behind the Bull Pen Bar. According to the witness, Schultz tried to “take off”—meaning that he attempted to quickly leave the scene—but “[i]t was winter, icy, [and] his tires [were] spinning.” Schultz appeals from a judgment, entered following a jury trial, convicting him of operating a motor vehicle while under the influence of an intoxicant (OWI), as a fifth offense. Schultz also appeals from an order denying his postconviction motion. He makes two separate, but related, arguments on appeal. First, Schultz contends that the evidence presented at trial was insufficient to establish that he operated his motor vehicle on “premises held out to the public for use of their motor vehicles” because the State failed to prove who owned the parking lot where he operated his vehicle prior to his arrest and/or secure the owner’s testimony to prove his or her intent to hold out the lot to the general public for parking. See WIS. STAT. § 346.61 (2021-22);1 City of Kenosha v. Phillips, 142 Wis. 2d 549, 557, 419 N.W.2d 236 (1988). Second, Schultz claims that the jury instructions did not correctly advise the jury of the State’s burden to prove ownership of the parking lot and the owner’s intent. The proper question for the jury was whether Schultz operated a motor vehicle on a premises held out to the public for use of their motor vehicles while under the influence of an intoxicant. The jury was appropriately instructed on that question, and it found that Schultz did.

Affirmed.

Decided 02/13/24

Full Text