State v. Jamie Ellin Grimm

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 16, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP789-CR Cir. Ct. No. 2017CT444

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JAMIE ELLIN GRIMM,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Walworth County:
PHILLIP A. KOSS, Judge. Affirmed.

¶1 NEUBAUER, C.J.1 Jamie Ellin Grimm appeals from a
judgment of conviction for operating a motor vehicle with a prohibited alcohol

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version.
No. 2019AP789-CR

concentration (second offense) and challenges the circuit court’s order denying her
motion to suppress the evidence. She asserts that the officer did not have
reasonable suspicion to conduct a traffic stop when she flashed her high beams at
the oncoming officer within 500 feet. We conclude that the officer had sufficient
grounds to reasonably suspect that a traffic violation had taken place, justifying
the stop. We affirm.

BACKGROUND

¶2 On September 3, 2017, at about 11:32 p.m., Officer Sean Blanton
was traveling eastbound on State Line Road in Walworth County when he
observed a vehicle approaching westbound. In front of Blanton’s squad car was
another vehicle traveling eastbound. While Blanton testified that he believed that
Grimm (driver of the westbound car) had her high beams on continuously as she
approached him, it is undisputed that the squad car video of the stop shows that, as
Grimm approached within 500 feet of Blanton, she flashed her high beams.
Blanton did not flash his high beams at Grimm.2

¶3 Blanton activated his overhead emergency lights, turned around, and
conducted a traffic stop of Grimm. She was subsequently arrested for operating a
motor vehicle while intoxicated (OWI).

¶4 Grimm moved to suppress all evidence on the ground that Blanton
initiated an unlawful stop as her high-beam flashing was not a traffic violation.

2
These facts are taken from the motion to suppress hearing and, as discussed later, the
trial. Court and counsel also reviewed a video tape taken by the squad car and officer body
cameras. Although the video tape was marked and received into evidence, it was not made a part
of the appellate record.

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No. 2019AP789-CR

After an evidentiary hearing and arguments of counsel, the circuit court denied the
motion, concluding that the flashing of the high beams was a violation of WIS.
STAT. § 347.12(1)(a) and therefore served as a sufficient basis for a stop. The
court found that the high beams were not on continuously but that Grimm flashed
them at Blanton within 500 feet. As explained by the circuit court:

All right, I’ve reviewed the video again, and
Officer Blanton does ask Ms. Grimm, “Do you know why
I’m stopping you?” And she says “no.” And he says: You
flashed your brights at me; you can’t do that. She gives
some reasons why she did it.

So it’s not quite consistent. I got the impression from
his testimony that she was—he was saying Ms. Grimm was
driving with her brights continuously on, and that’s how the
testimony seemed.

….

They are approaching each other on east/west road
leading into Sharon. She’s coming from Lake Geneva.

I read [WIS. STAT. §] 347.12(1)(a).

I have to interpret—well, if Blanton is saying she did
not dim her headlights at all, clearly there is a basis to stop.
If Blanton is saying you flashed them at me one time, that’s
a much closer case. But the statute only permits,
apparently, according to the second sentence, when it says:
This paragraph does not prohibit an operator from
intermittently flashing at a vehicle [which] high beams are
on as they approach, you could read that to say therefore, it
does prohibit an operator from flashing high beams when
it’s not for that reason.

So it appears it’s a violation, according to the way the
statute is read—written, a violation of [WIS. STAT.
§] 347.12 either way.

With that, by the way—and I’ll make a finding that they
were flashed, or at least that’s what—based on the most—
on the best evidence, which I think is what he immediately
says to Ms. Grimm at the scene and how she is answering
in context, as if they were flashed.

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No. 2019AP789-CR

So for any appellate purposes … I’ll make a finding that
they were not on constantly but were flashed. And when
Officer Blanton—who frankly I believe gave credible
testimony. I think he was summarizing that it was just
driving with high beams in the way that he later—or was
earlier described in the video.

So I’m still finding that there was a basis to stop, as a
violation of [WIS. STAT. §] 347.12(1)(a).

….

And I do believe, as I added, that they were within 500
feet of each other. It’s a safety issue. If you flash your
high beams at people, it makes it difficult for that other
driver to see; therefore it’s logical as well. There really is
no reason to flash high beams unless you’re trying to get
somebody else to turn theirs off.

¶5 Despite the absence of the squad car and body camera videos in the
appellate record, the central facts found by the circuit court were not disputed by
the parties and were confirmed at Grimm’s subsequent trial. See State v. Truax,
151 Wis. 2d 354, 360, 444 N.W.2d 432 (Ct. App. 1989) (we are not confined to
reviewing the evidence adduced at the suppression hearing, but may also consider
pertinent trial evidence as well). Blanton testified at trial: that there was a car
ahead of him in the eastbound lane of travel; that, as Grimm approached within
500 feet, she flashed her high beams at him; and that Grimm told him that she was
looking at her GPS, “messing” with her headlights, and accidently turned on her
high beams.

¶6 After a trial, a jury acquitted Grimm of OWI but found her guilty of
operating a vehicle with a prohibited blood alcohol concentration. Grimm
appeals.

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No. 2019AP789-CR

DISCUSSION

¶7 Whether evidence from a traffic stop should be suppressed is a
question of constitutional fact. State v. Truax, 2009 WI App 60, ¶8, 318 Wis. 2d
113, 767 N.W.2d 369. When reviewing such questions, we will sustain a circuit
court’s findings of fact unless they are clearly erroneous, but we will decide
de novo whether those facts satisfy the constitutional standard. Id.

¶8 Because an investigatory stop constitutes a “seizure” under the
Fourth Amendment, the officer must be able to cite specific and articulable facts
that have created a reasonable suspicion “that a person has committed or is about
to commit a crime,” to include reasonable suspicion that a noncriminal traffic law
has been or is being violated. County of Jefferson v. Renz, 231 Wis. 2d 293, 310,
603 N.W.2d 541 (1999).

¶9 Grimm does not challenge the circuit court’s finding that she briefly
flashed her high beams at Blanton within 500 feet. Rather, she raises several other
challenges both to the factual support for the circuit court’s ruling as well as its
conclusion of law that she violated WIS. STAT. § 347.12(1)(a). We reject each of
Grimm’s arguments.

¶10 WISCONSIN STAT. § 347.12 provides in part as follows:

(1) Whenever a motor vehicle is being operated on a
highway during hours of darkness or during a period of
limited visibility, the operator shall use a distribution of
light or composite beam directed high enough and of
sufficient intensity to reveal a person or vehicle at a
safe distance in advance of the vehicle, subject to the
following requirements and limitations:

(a) Whenever the operator of a vehicle equipped
with multiple-beam headlamps approaches an
oncoming vehicle within 500 feet, the operator shall
dim, depress or tilt the vehicle’s headlights so that the

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No. 2019AP789-CR

glaring rays are not directed into the eyes of the
operator of the other vehicle. This paragraph does not
prohibit an operator from intermittently flashing the
vehicle’s high-beam headlamps at an oncoming vehicle
whose high-beam headlamps are lit.

¶11 Interpretation of a statute is a question of law, which we review
de novo. State v. Chew, 2014 WI App 116, ¶6, 358 Wis. 2d 368, 856 N.W.2d
541. The language of the statute is the starting point and, if it is clear, we apply
the statute to the facts. Id. The language should be given its common, ordinary
meaning, should be interpreted within its context, and with the goal of discerning
the meaning intended by the legislature. State v. Moreno-Acosta, 2014 WI App
122, ¶8, 359 Wis. 2d 233, 857 N.W.2d 908.

¶12 The language of WIS. STAT. § 347.12(1)(a) is clear and, when
applied to these undisputed facts, shows a likely traffic violation, providing a
sufficient basis to conduct a stop. Put simply, within 500 feet of an oncoming
vehicle, the driver must dim his or her high beams so that the glaring rays are not
directed into the eyes of the operator of the other vehicle. It is undisputed that
Grimm flashed her high beams at Blanton within 500 feet. That plainly allowed
Blanton to reasonably suspect that a traffic law was violated and that a stop could
be conducted. See State v. Houghton, 2015 WI 79, ¶30, 364 Wis. 2d 234, 868
N.W.2d 143.

¶13 Grimm argues that the statute requires a showing that the flashing
impaired the vision of the oncoming driver, pointing to the requirement that the
headlamps must be dimmed, depressed or tilted “so that the glaring rays are not
directed into the eyes of the operator.” WIS. STAT. § 347.12(1)(a). State v.
Tomaszewski, 2010 WI App 51, 324 Wis. 2d 433, 782 N.W.2d 725, rejected

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No. 2019AP789-CR

Grimm’s argument that the statute provides a separate element that “glaring rays”
had an impact.

¶14 In Tomaszewski, an officer observed a vehicle with its high beams
on and traveling within 400 feet of another vehicle, dimming his high beams only
as he passed the other vehicle. Id., ¶3.3 The officer initiated a stop, which led to
an OWI arrest. Id., ¶4. The defendant argued that there was no reasonable
suspicion for the stop as there was no showing that the “glaring rays” of his high
beams were reflected into the other driver’s eyes. Id., ¶8. Upon reviewing WIS.
STAT. § 347.12(1)(b), we rejected any need for proof that the lights were reflected
into the other driver’s eyes. Tomaszewski, 324 Wis. 2d 433, ¶10. The statute
requires a driver to dim their high beams when within 500 feet of another vehicle.
Id. The court explained that the statute’s reference to preventing the “glaring
rays” was a description of the statute’s purpose as opposed to a necessary element
for its application. Id. “[D]rivers are in no position to determine whether their
vehicle’s high beams glare into the eyes of other drivers. To avoid this problem,
the statute assumes the use of high beams within 500 feet will cause impairment,
and prohibits their use.” Id. Under WIS. STAT. § 347.12(1)(a), no evidence is

3
Although para. (b) of WIS. STAT. § 347.12(1) addresses a driver approaching or
following from the rear, the 500-foot prohibition and exception for intermittent flashing are the
same as para. (a).

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No. 2019AP789-CR

required as to whether the glaring rays of the high beams were actually reflected or
directed into and affected the eyes of the other driver.4

¶15 Lastly, Grimm asserts that her momentary flashing of her high
beams was not a traffic violation, as the statute does not prohibit intermittent
flashing “at an oncoming vehicle whose high-beam headlamps are lit.” WIS.
STAT. § 347.12(1)(a). The State, Grimm argues, has the burden of proof at a
suppression hearing and failed to produce evidence to show that Blanton did not
have his high beams on at the time. We reject her argument.

¶16 The circuit court’s ruling was premised on its conclusion that there
was no evidence that Blanton had his high beams on. The circuit court was fully
aware of the “intermittent flashing” exception and addressed it. The court noted
that the statute

does not prohibit an operator from intermittently flashing at
a vehicle whose high beams are on as they approach, you
could read that to say therefore, it does prohibit an operator

4
Grimm urges us to consider cases from other jurisdictions where the courts interpreted
their high-beam statutes to require proof that the other driver’s vision was impaired. We decline
to do so for several reasons. Although we certainly may consider the rationales of out-of-state
cases for assistance, we are not required to do so, the cases are not binding, and there is little need
when our own precedent is so clear. See Beecher v. LIRC, 2003 WI App 100, ¶16 n.3, 264
Wis. 2d 394, 663 N.W.2d 316. Further, because the holding of State v. Tomaszewski, 2010 WI
App 51, 324 Wis. 2d 433, 782 N.W.2d 725, is so clear and on point, we are obliged to follow it.
See Willowglen Academy-Wisconsin, Inc. v. Connelly Interiors, Inc., 2008 WI App 35, ¶18 n.6,
307 Wis. 2d 776, 746 N.W.2d 570 (“We are bound to follow our own precedent” and only our
supreme court has the power to modify or overrule a court of appeals’ opinion). In addition,
although the statute in the principal out-of-state case relied upon by Grimm, see Sarber v
Commissioner of Public Safety, 819 N.W.2d 465 (Minn. Ct. App. 2012), is somewhat similar to
Wisconsin’s, there is at least one significant difference. Namely, Wisconsin’s statute provides the
driver with a specific list of actions to take—dim, depress, or tilt—the high beams, whereas the
Minnesota statute does not, instead generally telling the driver to use his or her lights in a way
that will not project into the eyes of the oncoming driver, which may make the need for proof of
impairment more sensible. See WIS. STAT. § 347.12(1)(a); MINN. STAT. § 169.61(b) (2011).
Finally, Grimm herself points out other cases that interpret such statutes in the manner that we do.

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No. 2019AP789-CR

from flashing high beams when it’s not for that reason
[when the other vehicle’s high beams are not lit].

So it appears it’s a violation [of WIS. STAT.
§ 347.12(1)(a)].

….

There really is no reason to flash high beams unless you’re
trying to get somebody else to turn theirs off.

The court further stated, “I’ll make a finding that [Grimm’s high beams] were
flashed” and a “finding that there was a basis to stop, as a violation of” the statute.
When the circuit court determined that Grimm did not fall within the “intermittent
flashing” exception, it found that Blanton’s high beams were not lit, even if
implicitly. See State v. Boyd, 2011 WI App 25, ¶8, 331 Wis. 2d 697, 797 N.W.2d
546 (noting a trial court’s findings “may be implicit in the trial court’s ultimate
conclusion”).

¶17 This finding is not clearly erroneous. Significantly, Grimm points to
no evidence, much less any argument made before the circuit court, indicating that
Blanton’s high beams were on. The evidence indicates otherwise. Just before the
stop, Blanton was traveling eastbound behind another car, making it unlikely that
Blanton would have his high beams on. According to the circuit court, the video
showed Grimm apologizing for flashing her high beams, indicating that she
mistakenly was hitting the buttons, which Blanton confirmed at trial when he
testified that Grimm acknowledged turning on her high beams was an accident, all
further evincing that flashing her high beams was not done to tell Blanton to dim
his. When asked if he flashed his high beams at Grimm, Blanton testified that he
did not. This testimony, combined with Grimm’s statements immediately upon
the stop and the lack of any contrary evidence, supports a reasonable inference that
Blanton’s high beams were not on. Finally, it is not as though Grimm was unable

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No. 2019AP789-CR

or prohibited from establishing whether Blanton had his high beams on, as she had
the opportunity at both the suppression hearing and the later trial to cross-examine
him on this point. The circuit court’s conclusion that Blanton did not have his
high beams on was not clearly erroneous.

¶18 In sum, Grimm flashed her high beams at Blanton within 500 feet.
Accordingly, Grimm’s violation of WIS. STAT. § 347.12(1)(a) provided reasonable
suspicion for Blanton to conduct a traffic stop.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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No. 2019AP789-CR