State v. Sullivan
| Decision Date | 08 March 2023 |
| Docket Number | 2021AP1422-CR |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Brian R. Sullivan, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
APPEAL from a judgment and an order of the circuit court for Winnebago County No. 2019CF100: SCOTT C. WOLDT, Judge.
Before Gundrum, P.J., Neubauer and Grogan, JJ.
Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).
¶1 Brian R. Sullivan appeals a judgment of conviction entered on a jury's verdicts for two counts of homicide by intoxicated use of a vehicle. He also appeals an order denying his motion for postconviction relief. Sullivan challenges the sufficiency of the evidence to support his conviction and the circuit court's exercise of its sentencing discretion. We reject his arguments and affirm.
¶2Sullivan was convicted following a five-day jury trial of two counts of homicide by intoxicated use of a vehicle.[1] The evidence at trial established that on a clear evening on Lake Winnebago in April 2018, two boats collided at approximately 8:38 p.m One boat was being operated by Sullivan; the other by K.L.[2] K.L.'s daughters were thrown from the boat in the collision and were found deceased in the water the following day.
¶3 When Sullivan reached shore, police interviewed him about the crash. The interviewing detective smelled alcohol on Sullivan and asked about his drinking activity that evening. Sullivan initially told police he had four beers during the day. Sullivan later that evening told police he had his last drink during dinner. His blood was drawn at 12:07 a.m. on the morning following the collision, at which time Sullivan had a .093 blood alcohol concentration (BAC).
¶4 At trial, Sullivan testified he had lied to police about his drinking activity. He testified that he had consumed three vodka drinks and two beers between 12:45 p.m. and 5:00 p.m Sullivan testified he had a beer with dinner, ending at approximately 6:45 p.m. He then added that he had another three- or four-ounce vodka drink at approximately 7:15 p.m which he consumed preceding the collision.
¶5 The critical issues at trial were the degree of Sullivan's intoxication at the time of the accident, the circumstances of the accident, and whether the accident would have occurred even if Sullivan was exercising due care at the time.[3] There was considerable expert testimony regarding boating rules, crash reconstruction, and toxicology.
¶6 The State's toxicologist, Lorrine Edwards, testified regarding the results of her analysis of Sullivan's blood sample and the pharmacology of alcohol. Using the .09 test result as a baseline, Edwards provided a range of possible BACs for Sullivan at the time of the crash given his various claims about his consumption activities that day. In particular, Edwards testified that if Sullivan had stopped drinking at approximately 6:45 p.m., as he initially claimed his BAC would have been between .12 and .17 at the time of the collision.
¶7 The prosecutor then questioned Edwards about Sullivan's BAC at the time of the crash given his new assertion that he had consumed a three- to four-ounce vodka drink in the hour prior to it. Edwards qualified her answers by noting that she could provide only an estimate in light of the uncertainty of the pace of consumption and the rate at which the alcohol would have been absorbed into Sullivan's circulatory system. Edwards concluded three to four ounces of vodka would have subtracted approximately .048 to .064 from her earlier estimate. Assuming none of the alcohol had been absorbed-an assumption she found very unlikely-Edwards estimated that a three-ounce drink would have resulted in a BAC of between .07 and .11 at the time of the crash, while a four-ounce drink would have resulted in a BAC of between .08 and .12 at the time of the crash.
¶8 Edwards was questioned about the validity of her estimates. She testified, "I'm comfortable with the range that I give based on my training and experience but I can't ever say with certainty that this is the absolute range, and that's why I have to hang my hat on the test result because that is a definitive result." Edwards concluded Sullivan's BAC was very likely above .08 even if his trial account of his consumption was accurate, as "[t]he last cocktail that is hypothetically consumed even fully absorbed is not enough to get to my test result, let alone[] account for all of the alcohol that was metabolized in that 3-1/2 hours before the blood draw."
¶9 Sullivan presented his own toxicology expert, James O'Donnell, who criticized Edwards's analysis. He challenged Edwards's testimony that generally eighty percent of an alcoholic drink will be absorbed within thirty minutes of intake. He estimated the range was between thirty minutes and one hour, and even longer for individuals with a full stomach. O'Donnell concluded Sullivan's BAC was between .068 and .071 at the time of the collision. His analysis assumed that Sullivan had in fact consumed three to four ounces of vodka in the approximately one hour preceding the crash. Therefore, O'Donnell opined that at the time of the crash, Sullivan was still in the absorption phase and the retrograde extrapolation Edwards had performed was not appropriate.
¶10 The circuit court denied defense motions to dismiss at the close of the State's case and at the close of the evidence. The court imposed concurrent sentences each consisting of three years' initial confinement and three years' extended supervision. Sullivan filed a postconviction motion. Following a hearing, the court denied Sullivan's requests for a new trial and for sentence modification. Sullivan now appeals, challenging the sufficiency of the evidence and the court's exercise of sentencing discretion.
¶11 "When a defendant challenges a verdict based on sufficiency of the evidence, we give deference to the jury's determination and view the evidence in the light most favorable to the State." State v. Coughlin, 2022 WI 43, ¶24, 402 Wis.2d 107, 975 N.W.2d 179. We will adopt the inferences that support the conviction and will not substitute our own judgment for the jury's unless the evidence is so lacking in probative value and force that no reasonable jury could have concluded, beyond a reasonable doubt, that the defendant was guilty. Id.
¶12 We first consider Sullivan's argument that the State failed to present sufficient evidence that his BAC was at or over .08 or that he was operating a vehicle while under the influence of an intoxicant at the time of the accident. Sullivan argues Edwards was incompetent to render an expert opinion on anything other than the fact that the blood drawn at 12:07 produced a .093 result. As a result, Sullivan argues the State failed to offer any credible evidence that rendered O'Donnell's opinion "inherently improbable." Sullivan contends the jury was therefore not free to disregard O'Donnell's testimony, his opinions should have been accepted as true, and the jury was required to acquit Sullivan based on a failure of proof.
¶13 As the State notes, Sullivan's brief-in-chief appears to be an attack upon the admissibility of Edwards's testimony. Indeed, Sullivan goes so far as to cite Wis.Stat. § 907.02 and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), when describing the supposedly problematic nature of Edwards's opinions. As the State points out, however, no contemporaneous objection was made to her testimony.[4] To the extent Sullivan attempts to contest admissibility now on appeal, that argument has been forfeited. See State v. Cameron, 2016 WI.App. 54, ¶17, 370 Wis.2d 661, 885 N.W.2d 611. As a corollary, the failure to challenge expert testimony under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), causes a party to forfeit the right to raise post-trial objections to the substance of expert testimony. Cameron, 370 Wis.2d 661, ¶12.
¶14 In his reply brief, Sullivan disclaims any intent to challenge admissibility, asserting his "discussion of the Daubert standard and … Wis.Stat. § 907.02 was intended to demonstrate how and why Ms. Edwards' opinion was problematic and unreliable, in addition to lacking any level of certainty satisfying the necessary burden of proof." We reject this assertion and conclude that the trial evidence, including Edwards's scientific opinion regarding the possible range of Sullivan's BAC at the time of the crash, was sufficient evidence upon which to find Sullivan guilty.
¶15 The dispute at trial regarding the degree of Sullivan's intoxication hinged on a few key points. First, the jury had to decide whether Sullivan was being honest at any point in time about the amount of alcohol he had consumed on the day of the crash. It is undisputed that Sullivan lied at some point: to police when he first claimed he had stopped drinking at 6:45 p.m.; or to the jury when he claimed he had consumed an additional three- to four-ounce vodka drink in the hour prior to the accident. This determination was strictly a matter of credibility, which is a determination for the fact finder. See Adams Outdoor Advert., Ltd. v. City of Madison, 2006 WI 104, ¶27, 294 Wis.2d 441, 717 N.W.2d 803.
¶16 Second, that credibility assessment materially affected the weight and credibility to be given to the opinions of the expert witnesses. See id. O'Donnell's expert testimony regarding Sullivan's likely BAC assumed that Sullivan's later account of consuming a three- to four-ounce drink just before the crash was true. The prosecutor in closing arguments...
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