State v. Kimberly D. Rowe, 2022AP2122-CR, 4/22/25, District III (1-judge decision, ineligible for publication); case activity
The COA considered when a collection of liquor bottles behind the counter of what appeared to be a bar becomes “intoxicating liquor” for which a license is required to possess for intended sales. Because the State did not prove the identity of the liquid in the bottles or submit the liquid for chemical testing, the COA reversed Kimberly Rowe’s conviction for possessing intoxicating liquor with intent to sell without a license or permit, contrary to Wis. Stat. § 125.66(1).
A Lincoln County sheriff’s deputy testified at Rowe’s jury trial that he entered a building identified by a sign outside as the K&R Raceway Pub, which was accompanied by a neon Budweiser sign. The deputy saw Rowe on one side of a “long wooden countertop.” Behind Rowe were “liquor bottles standing on a shelving unit of some sort” and a cash register. On the other side of the countertop, the deputy testified, “a number of people were standing around drinking beverages” and holding cans of beer. The deputy asked Rowe for her operator’s license, and she provided an operator’s and bartender’s license, which were both expired. (¶ 4).
Rowe testified that she and her boyfriend live at the pub, that her boyfriend wanted to run a bar out of the pub, and that he installed the pub’s sign, the Budweiser sign, and the alcohol bottles behind the counter. She denied selling intoxicating liquor or serving any drinks from the alcohol bottles behind the bar, and said that the deputy witnessed a “private get together.” (¶ 5). The jury convicted Rowe of possessing intoxicating liquor with intent to sell without a license. (¶ 6).
Rowe argued on appeal that the State did not present sufficient evidence that she possessed “intoxicating liquor” which is defined as “all ardent, spirituous, distilled, or vinous liquors, liquids or compounds . . . containing 0.5 percent or more of alcohol by volume” (ABV). Wis. Stat. § 125.02(8).
The Court observed that the State did not prove the identity of any substances in the liquor bottles because the deputy “did not provide any information from the labels on the liquor bottles, which would have established the identity of any substances they contained – i.e., vodka, whiskey, gin, tequila, or liqueurs – and subsequently, the ABV.” (¶ 12). The Court remarked: “On this record, the bottles could have been entirely empty and used strictly for decoration.” (¶ 12).
The Court acknowledged that the jury was allowed to draw reasonable inferences from facts established by circumstantial evidence; however, the deputy did not examine the labels on the bottles, check if the seals on the bottles were broken, open the bottles to determine whether the substance smelled like an intoxicating liquor, take a picture of the bottles, or enter the bottles into evidence for chemical testing. (¶ 14). Further, no witness testified that they observed Rowe using the bottles to serve drinks or that they drank “intoxicating liquor” served by Rowe (the private party guests drinking beer do not qualify because beer is not an “intoxicating liquor”). (¶ 14). The Court summarized: “Because the State did not present any evidence related to the ABV of any liquid in the bottles, or solicit any additional facts upon which a jury could infer that the type of alcohol in the bottles, if any, met the minimum threshold percentage, we conclude that the State failed to offer competent evidence of an essential element of the offense of possessing, with the intent to sell, an intoxicating liquor without holding the appropriate license or permit.” (¶ 15).
The Court rejected the State’s uniquely Wisconsin argument that “one third of the jury panel indicated a history of involvement in the bartending industry” and they could use their own observations and experiences to reach a verdict: “[W]e do not approve of the State’s seeming dependence on jurors sharing their individual expertise with other jurors, rather than calling expert witnesses, in order to prove its case.” (¶ 20).
Although the Court did not find that chemical testing is required to establish the existence of an “intoxicating liquor” and that “otherwise competent” testimony may be sufficient, “the State failed to offer sufficient testimony upon which the jury could make (or infer) such a finding.” (¶ 24).
