State v. Ezerins
| Decision Date | 25 April 1985 |
| Citation | 370 N.W.2d 294,124 Wis.2d 777 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE OF WISCONSIN, Plaintiff-Respondent, v. ELMARS P. EZERINS, Defendant-Appellant. COUNTY OF JEFFERSON, Plaintiff-Respondent, v. ELMARS P. EZERINS, Defendant-Appellant. 84-1101. |
| Court | Wisconsin Court of Appeals |
Circuit Court, Jefferson County
Affirmed
Appeal from a judgment of the circuit court for Jefferson county: Arnold K. Schumann, Judge.
Appeal from a judgment of the circuit court for Jefferson county: James W. Karch, Judge.
Elmars P. Ezerins appeals from two judgments of conviction for exceeding the speed limit while operating a motor vehicle, contrary to sec. 346.57(4)(h), Stats., entered after two separate jury trials. We consolidated the appeals, 84-1101 (Ezerins 1) and 84-1867 (Ezerins 11).
The issues he raises common to both cases are (1) whether the trials should have been held in another county, (2) whether entrapment occurred, (3) whether the assessment of points to Ezerins' driving record is a form of indentured servitude and therefore unconstitutional, (4) whether it is constitutional for an officer to request a driver's license in lieu of bond or being taken into custody and (5) whether credible evidence supports the verdict. Other issues he raises in Ezerins 1 are (6) whether 908.03(6), Stats., is unconstitutional, (7) whether sec. 346.57, Stats., is unconstitutional, (8) whether the court's statement that defendant was unrepresented prejudiced the jury and therefore was unconstitutional, and (9) whether the jury's determination of appellant's speed prejudiced the jury and therefore was unconstitutional. Other issues he raises in Ezerins II are (10) whether the officer illegally traveled to and parked in a highway median and (11) whether the officer had a duty to give Ezerins a written readout from the radar indicating his speed in addition to the traffic ticket.
Zerins I arose from an incident on the morning of September 11, 1983. Trooper Steppke determined that an automobile on interstate 94 in Jefferson County was travelling at 65 m.p.h. based on his observation and radar readout. The speed limit was 55 m.p.h. The trooper stopped the car and issued the driver, Ezerins, a speeding ticket.
Ezerins II arose from an early morning incident on June 29, 1984. Deputy Sheriff Wollin determined that an automobile on Interstate 94 in Jefferson County was travelling at 69 m.p.h. and decreased to 66 m.p.h. based on a radar readout and on his observation. The speed limit was 55 m.p.h. The deputy stopped the car and issued the driver, Ezerins, a speeding ticket.
Appellant contends that the Ezerins I trial should have been held in Milwaukee county rather than Jefferson county. No request for a change of venue appears in the record. An appellate court will not consider factual assertions which are not based on the record. Jenkins v. Sabourin, 104 Wis.2d 309, 313, 311 N.W.2d 600, 603 (1981). We do not address appellant's change of venue argument for Ezerins I.
In Ezerins II, the trial court properly rejected Ezerins' request for a change of venue to Milwaukee County. The alleged offense occurred in Jefferson county. Venue was in that county. Sec. 345.31, Stats.
Appellant gives no reasons or authority to support his arguments as to the third, sixth, seventh, eighth and ninth issues. Constitutional points merely raised but not argued are not reviewed on appeal. Dumas v. State, 90 Wis.2d 518, 523, 280 N.W.2d 310, 313 (Ct.App. 1979).
Ezerins argues that the state engaged in entrapment. Each officer was parked in a median. The officer used an unmarked squad car in Ezerins I and the deputy parked among some shrubs in Ezerins II. Appellant did not request a jury instruction on entrapment in Ezerins I. Failure to request the instruction prevents Ezerin from raising the point on appeal. Demerath v. Nestle Co., Inc., 121 Wis.2d 194, 199, 358 N.W.2d 541, 544 (Ct.App. 1984).
Ezerin requested the instruction in Ezerins II. An entrapment defense is based on the theory that an accused should not be convicted if the criminal design originated in the government agent's mind and, except for the agent's urging, the accused would not have committed the crime. State v. Abramoff, 114 Wis.2d 206, 211, 338 N.W.2d 502, 505 (Ct.App. 1983), cert. denied, ---- U.S. ----, 104 S.Ct. 489 (1983). The defendant must show that an inducement occurred. Id. at 211-12, 338 N.W.2d at 505. Appellant, however, offered no evidence that government action induced him to speed. Because appellant offered no evidence to support an entrapment instruction for Ezerins II, the trial court properly refused to give it. Bennett v. Larsen Co., 114 Wis.2d 265, 271, 338 N.W.2d 510, 513 (Ct.App. 1983).
Appellant argues in Ezerins I that Steppke was not competent to operate the radar and that the radar was not properly maintained. He makes a similar argument concerning Wollin in Ezerins II and also asserted that Wollin had been drinking, there may have been radar interference, and Wollin had no concept of the flow of traffic. A verdict in a civil trial will not be upset if any credible evidence supports it. Fehring v. Republic Ins. Co., 118 Wis.2d 299, 305, 347 N.W.2d 595, 598 (1984). We review the record to determine whether any credible evidence exists.
Steppke testified that his squad car was statitonary and the radar was in the stationary mode when it showed that appellant was going 65 m.p.h. Wollin similarly testified that his squad car was also...
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