Winnebago County v. Rahb J. Kettleson, 2012AP2230, District 2, 5/29/13; court of appeals decision (1-judge; ineligible for publication); case activity
The testimony of a citizen-witness–that a car operated by Kettleson “was probably going about 65 to 68[,]” came within five or ten feet of the rear of his vehicle before passing him, made at least six lane changes without signaling, and was traveling about the same speed while coming within approximately five to ten feet of other cars he was passing–was sufficient to support Kettleson’s conviction for reckless driving:
¶9 To convict Kettleson, the County was required to prove that Kettleson: (1) operated his vehicle upon a highway, (2) in a manner constituting criminal negligence, and (3) this criminal negligence endangered the safety of a person or property. See Wis. Stat. §§ 346.62 and 939.25(2); Wis JI—Criminal 2650. “Criminal negligence” means a driver’s operation of his vehicle created an unreasonable and substantial risk of death or great bodily harm and the driver should have been aware that his operation of the vehicle created this risk. Wis JI—Criminal 2650; see also Wis. Stat. § 939.25.
¶10 Despite Kettleson’s testimony to the contrary, the court found that he had operated his vehicle in the manner attested to by the citizen-witness. Simply put, the trial court believed the citizen-witness’s testimony over Kettleson’s, which it was entitled to do. The court observed the testimony of both witnesses and found the citizen-witness more credible, specifically noting the steps the citizen-witness went through to report Kettleson’s driving and follow through with his concerns by testifying at trial. Nothing in the record suggests the court erred in believing the citizen-witness’s testimony over Kettleson’s, and Kettleson has demonstrated no error in the trial court’s findings.[3]
[3] On appeal, Kettleson attempts to cast doubt upon the testimony of the citizen-witness with allegedly inconsistent statements from an “incident report.” He points to “page three” of the report, but acknowledges the report was not entered into evidence during the trial because “I somehow left page three of the incident report at home … and did not have it at trial.” We do not consider the report because our review is limited to matters in the record and we “will not consider any materials in an appendix that are not in the record.” Roy v. St. Lukes Med. Ctr., 2007 WI App 218, ¶10 n.1, 305 Wis. 2d 658, 741 N.W.2d 256.
