State v. Kemp, 80-2168

• Citation: 318 N.W.2d 13,106 Wis.2d 697
• Decision Date: 30 March 1982
• Docket Number: No. 80-2168,80-2168
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Barbara A. KEMP, Defendant-Appellant-Petitioner.
• Court: United States State Supreme Court of Wisconsin

Page 13

318 N.W.2d 13

106 Wis.2d 697

STATE of Wisconsin, Plaintiff-Respondent, v. Barbara A. KEMP, Defendant-Appellant-Petitioner.

No. 80-2168.

Supreme Court of Wisconsin.

Argued March 1, 1982.

Decided March 30, 1982.

Jack E. Schairer, Asst. State Public Defender, for defendant-petitioner.

Stephen W. Kleinmaier, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

DAY, Justice.

This is a review of a decision of the court of appeals, 104 Wis.2d 740, 313 N.W.2d 279, which affirmed a judgment of the circuit court for Grant county, Hon. John R. Wagner, Judge, convicting defendant-appellant-petitioner, Barbara A. Kemp (hereinafter defendant) of operating a motor vehicle after her operating privileges were suspended.

Two issues are considered on this review. First: Did the trial court err in not instructing the jury pursuant to Sec. 903.03(3), Stats. 1979-80, ¹ that the state was claiming the benefit of a presumption and that the jury was not required to regard the basic fact (mailing of notice of driver's license suspension) as sufficient evidence of the presumed fact (that defendant had cause to believe her license was suspended).

Because we conclude that in this case the state was not relying on a presumption, the trial court did not err in refusing to give a Sec. 903.03(3) type instruction.

Second: Did the court err in its instructions to the jury. Because defendant's trial counsel did not object to the instructions, the question becomes whether plain error was committed in giving them. We conclude no plain error is demonstrated. We therefore affirm the court of appeals and sustain the conviction.

The facts of this case are as follows. Defendant was involved in an automobile accident involving damage to property on November 28, 1978. At that time she had no automobile liability insurance. She discussed the accident with an attorney.

On February 23, 1979, the Department of Transportation, Division of Motor Vehicles, (hereinafter department) sent a notice of suspension, addressed to Barbara A. Kemp at 1429 Bainbridge Street, La Crosse, Wisconsin. The notice stated that, as a result of her being involved in an accident while uninsured, her operator's license would be suspended unless, by March 16, 1979, she complied with the Financial Responsibility Act, ch. 344, Stats. 1979-80. Compliance required either depositing $1,050 to secure any judgment arising out of the accident, furnishing proof of liability insurance in effect at the time of the accident, obtaining legal releases from the other parties involved in the accident, or requesting a hearing. There is no evidence that defendant complied with any of those conditions. On July 19, 1979, the department sent an order of suspension which stated that defendant's operating privileges were suspended because of her failure to comply with the Financial Responsibility Act. This second notice was also addressed to Barbara A. Kemp at 1429 Bainbridge Street, La Crosse, Wisconsin.

On September 26, 1979, defendant was apprehended while operating a motor vehicle in Grant county, Wisconsin. She was subsequently charged with driving after her operating privileges were suspended in violation of Sec. 343.44, Stats. 1979-80 ². Defendant requested a jury trial, and at trial testified that she had lived at 1429 Bainbridge Street during the last four months of 1978 but moved from that address to 120 Sperbeck Street, La Crosse, Wisconsin, in January 1979, where she still resided at the time of trial. She testified she never received the notice of suspension or the order of suspension. She also testified she had informed the post office of her change of address and that mail addressed to her Bainbridge address had been forwarded to her for about two weeks after she moved.

Defendant did not remember whether she notified the department of her change of address. Defendant introduced into evidence two temporary driving permits, one issued May 30, 1979, and the other issued June 8, 1979, which expired August 8, 1979. Both of these permits showed defendant's address as 120 Sperbeck Street. Defendant also testified that the second permit "was sent to me by Madison" and that she later received a regular driver's license containing her Sperbeck Street address.

At the close of the evidence, the judge gave the following instruction to the jury pertaining to the offense of driving after one's operating privileges have been suspended.

"OPERATING AFTER SUSPENSION. The offense of operating a motor vehicle after suspension, as defined by Section 343.44, is committed by a person who operates a motor vehicle upon any highway in this state while that person's operating privileges are under suspension.

"Before the defendant may be found guilty of operating a motor vehicle after suspension, the State must prove by evidence which satisfies you beyond a reasonable doubt that there were present the following three elements of this offense:

"First, that the defendant operated a motor vehicle upon any highway in this state. A motor vehicle is operated when it is set in motion.

"Second, that at the time the defendant operated the motor vehicle, her operating privilege was duly suspended.

"Third, that the defendant had cause to believe that her operating privilege had been suspended. A person has cause to believe that her operating privilege had been suspended when she has received notification of the suspension, or, when, in the exercise of due care, under the facts and circumstances of which he [sic] was aware, the defendant should have known that her operating privilege was suspended.

"There is evidence in this case that the Motor Vehicle Division mailed a written notice of suspension to the defendant at her last known address. If you find beyond a reasonable doubt that the notice was properly mailed, and that the defendant did not receive said notice because the defendant changed her address without notifying the Department and did not leave her forwarding address, you are instructed that such failure to keep the Department notified of current address is inconsistent with the duty to exercise diligence with respect to information about one's operating privilege, and that by statute, refusal to accept or failure to receive an order of suspension mailed by first class mail to such person's last known address is not a defense to the charge of driving after suspension.

"Although a person may have no actual knowledge of the suspension, and may have received no actual notification, such person has cause to believe her operating privilege has been suspended if she has knowledge of, or a reasonable person in the defendant's situation exercising reasonable diligence would have knowledge of, the existence of facts and circumstances which, under Wisconsin Law, are a basis for suspension. As it applied to this case, the Law of Wisconsin provides for the suspension of the operating privilege if the driver has had an accident and has neither furnished proof of motor vehicle liability insurance meeting the minimum requirements of Wisconsin Statute 343.15(1) in effect at the time of the accident, nor filed legal releases with the Department of Motor Vehicles signed by the person who received injuries or property damage in the accident, nor made a security deposit to satisfy any possible judgment arising out of such accident. Therefore, you may find the third element is satisfied if you find beyond a reasonable doubt that the defendant knew, or in the exercise of due care, should have known under the circumstances of which she was aware, that she had an accident and did not furnish the Motor Vehicle Department proof of motor vehicle liability insurance, file a legal release with the Department, or post a security deposit with the Department.

"If you are satisfied beyond a reasonable doubt from the evidence in this case that the defendant was operating a motor vehicle upon a highway of this state while her operating privilege was duly suspended, and that she had cause to believe that her operating privilege was suspended, then you should find the defendant guilty.

"If you are not satisfied, then you must find the defendant not guilty."

Prior to the giving of the instructions counsel for both the state and defendant stated they had no objection to the instructions. The jury returned a verdict of guilty of operating a motor vehicle after driving privileges had been suspended. The trial court pronounced judgment of conviction. Defendant appealed to the court of appeals, which affirmed the trial court. Defendant then petitioned this court to review the court of appeals decision. We granted that petition.

Defendant claims that the jury instructions given by the trial judge were incomplete and erroneous and deprived her of a fair trial, necessitating reversal of her judgment of conviction.

Defendant failed to object to the jury instructions given by the trial judge. The failure to object to the form of a jury instruction at the jury instruction conference generally constitutes a waiver of any error in the instructions. ³ However, this court stated in State v. Schulz, 102 Wis.2d 423, 435, 307 N.W.2d 151 (1981), that the waiver rule does not apply where the error affects defendant's substantial rights. ⁴

This exception to the timely objection requirement is termed the "plain error" rule. This court recently set forth the test to be applied to determine whether a jury instruction will be reviewed despite the absence of an objection in State v. Paulson, 106 Wis.2d 96, 315 N.W.2d 350, 354-55 (1982).

"The test which this Court has applied where a party contends that a jury instruction should be reviewed on appeal in spite of a waiver of objections is whether the error is so plain or fundamental as to affect the defendant's substantial rights....

"[I]t is clear that the defendant must establish not only that an error exists but also that that error is so plain...