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County of Adams v. Ciesla12/9/1999
remain on the institution's grounds. Ciesla's decision to retrieve the car keys and drive away was his and his alone.
. Ciesla argues that being asked to leave the institution's grounds is tantamount to being induced to drive under the influence, and he insists that he was left with no other choice after being asked to leave the premises. After reviewing the record, however, we conclude that there were several other options available to Ciesla. He could have asked his companion to drive him to a place where he could wait for her to finish her visit. He could have used the pay phone near the front entrance of the institution to call a taxicab, or he could have walked 150 yards to the edge of the institution's grounds to wait for his friend to complete her visit.
. In short, the lieutenant did not induce Ciesla to get into his car and drive off the institution's grounds. The lieutenant did not order or even suggest that Ciesla drive away, and he testified that he had "no idea that [Ciesla] was going to drive off in vehicle." The lieutenant simply informed Ciesla that he would not be permitted to remain on the institution's premises. We conclude that no jury could reasonably have found that Ciesla was induced by "excessive incitement, urging, persuasion, or temptation" which was "likely to induce the commission of an offense by a person not already disposed to commit an offense of that kind." Wis J I-Criminal 780. Thus, the trial court correctly concluded that Ciesla had failed to produce even "some evidence" of entrapment, and the court did not err in directing a guilty verdict based on the parties' stipulation that the elements of OMVWI were proven.
. Before concluding, we note the presence of a potentially dispositive issue that was not raised by the parties in this appeal. The pattern instruction on entrapment employs the term "law enforcement officer" for the person or entity that must improperly induce an individual to commit an offense. Courts sometime refer to "the government" or "government agents" as being the necessary actors. See, e.g., State v. Hilleshiem, 172 Wis.2d 1, 8, 492 N.W.2d 381, 384 (Ct. App. 1992). Ciesla's proffered entrapment defense assumes that the FCI lieutenant was a "law enforcement officer" or "government agent" for entrapment purposes. The lieutenant was a correctional officer employed by the federal government. There is nothing in the record to indicate that the lieutenant was performing anything other than his regular duties at FCI when he directed Ciesla to leave the premises, or that he acted at the behest of or in concert with the Adams County Sheriff's Department in directing Ciesla to leave the grounds.
. We question, therefore, whether the FCI lieutenant would qualify as a "law enforcement officer" or "government agent" who induced Ciesla to violate the Adams County traffic ordinance. The County did not raise the issue in either this court or the trial court, and accordingly, we do not address the issue.
CONCLUSION
. For the reasons discussed above, we affirm the judgment of the trial court.
By the Court. -- Judgment affirmed.
This opinion will not be published. See Rule 809.23(1)(b)4, Stats.
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