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State v. Roberts4/24/2002
. William H. Roberts appeals from a judgment convicting him of operating while intoxicated (fifth offense), operating after revocation (fourth offense) and obstructing an officer, all as a repeat offender, and from an order rejecting his challenge to his sentence. We affirm.
. Roberts seeks a new trial in the interests of justice because the real controversy was not tried due to three errors: (1) the circuit court did not engage in the State v. Kruzycki, 192 Wis. 2d 509, 524-27, 531 N.W.2d 429 (Ct. App. 1995), test for admitting prior convictions for impeachment purposes; (2) the arresting deputy was improperly permitted to testify to Roberts's four prior OWI convictions; and (3) during closing argument, the State erroneously asserted that Roberts had testified to his four prior OWI convictions when that evidence was offered by the State through the arresting officer. Roberts argues that these errors deprived him of a fair trial and made the real issue in controversy his bad character, not whether he was driving the vehicle.
. We agree with the State that even if we assume some degree of error in one or all of these claims, Roberts is not entitled to a new trial in the interests of justice. All of these alleged errors are collateral to the real issue: who was driving the vehicle. When he was arrested, Roberts claimed that his friend "Mike" drove the vehicle away from the tavern where they had been drinking. The vehicle broke down, and Mike went for help. Roberts testified at trial that Mike was driving the vehicle. Roberts contended that he was in the backseat on the driver's side when he exited the vehicle after the vehicle stopped.
. A witness testified that he was driving behind the Roberts vehicle when it stopped, and that he saw only Roberts exit the vehicle. Roberts exited from the driver's side. A sheriff's deputy called to the scene of the disabled vehicle testified that Roberts smelled of alcohol and showed other signs of intoxication. Roberts admitted to the deputy that he had been drinking and that he was driving from a tavern where he had been drinking. The deputy arrested Roberts after he failed field sobriety tests. A blood test revealed that Roberts had a .155% blood alcohol level.
. Roberts moved the circuit court for a new trial in the interests of justice. The circuit court denied the motion. He now asks this court to grant him that relief by exercising our authority under Wis. Stat. § 752.35 (1999-2000) because the jury was distracted from the real controversy of whether he was driving the vehicle.
. In order to grant a new trial under Wis. Stat. § 752.35, we must conclude that the real controversy was not tried. In his appellant's brief, Roberts recognizes that the real controversy was whether he was driving the car. We agree. We conclude that there was overwhelming evidence that he was doing so, and the real issue was put before the jury. The driver of the vehicle behind Roberts's disabled vehicle testified that Roberts was the only one in the car and he exited from the driver's side. The arresting deputy testified that Roberts told him that he was driving. Roberts testified that as the vehicle became disabled, "I [threw] it into neutral" and coasted to the side of the road. The circuit court observed that the evidence was overwhelming and that Roberts's credibility was damaged by his testimony, not his prior OWI convictions.
. Our confidence in the outcome of the trial is not shaken by Roberts's three allegations of error. Therefore, we deem it unnecessary to address those allegations individually.
. Roberts also challenges the proof of his prior offenses for purposes of enhancing his sentence
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