State v. Brian R. Sullivan

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.
March 8, 2023
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. 2021AP1422-CR Cir. Ct. No. 2019CF100

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BRIAN R. SULLIVAN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Winnebago County: SCOTT C. WOLDT, Judge. Affirmed.

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).
No. 2021AP1422-CR

¶1 PER CURIAM. 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.

BACKGROUND

¶2 Sullivan 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

1
Consistent with WIS. STAT. § 940.09(1m)(b) (2017-18), two counts of homicide by
intoxicated use of a vehicle with a prohibited alcohol concentration were dismissed after the court
received the jury’s verdicts.

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
Consistent with the policy underlying WIS. STAT. RULE 809.86, we use initials to
identify the victims.

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No. 2021AP1422-CR

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.

3
See WIS. STAT. § 940.09(2)(a) (2017-18) (providing an affirmative defense if the
defendant proves “that the death would have occurred even if he or she had been exercising due
care and he or she had not been under the influence of an intoxicant”).

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No. 2021AP1422-CR

¶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

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No. 2021AP1422-CR

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.

DISCUSSION

I. Sufficiency of the Evidence

¶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

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No. 2021AP1422-CR

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

4
Sullivan’s defense counsel interposed one objection when the prosecutor asked
Edwards about whether she had an opinion “whether it’s likely that the … blood level in this case
was above a .08?” Counsel requested additional foundation, and the circuit court sustained the
objection. Thereafter, the prosecutor recast the question as soliciting Edwards’s “scientific
opinion.” No further objections were made to Edwards’s testimony on these issues.

6
No. 2021AP1422-CR

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 specifically urged the jury to
reject O’Donnell’s testimony on this basis, arguing, “I think a reason to distrust
Dr. O’Donnell’s opinion is it is based on the defendant’s own words which are
unreliable as we’ll see.”

¶17 Viewing the evidence in the light most favorable to the conviction,
as we must, the jury could have reasonably rejected Sullivan’s trial description of
his consumption activities, therefore giving no weight to the testimony of his
expert. Relatedly, the jury could have concluded Sullivan was being truthful when

7
No. 2021AP1422-CR

he told police he stopped drinking at 6:45 p.m., and therefore concluded that his
BAC was in line with Edwards’s testimony, approximately .12 to .17 at the time of
the crash. On this record, we conclude the evidence was such that a reasonable
jury could have concluded, beyond a reasonable doubt, that Sullivan was
intoxicated at the time of the crash.

¶18 The objections to Edwards’s testimony that Sullivan lays out on
appeal are unpersuasive. First, given the foregoing, the jury could have reached a
finding of guilt even without Edwards’s allegedly flawed testimony about
Sullivan’s possible BAC following a three- to four-ounce vodka drink. Second, to
the extent her testimony was flawed, it was fair game for cross-examination.
Finally, with Sullivan having disclaimed on appeal any challenge to admissibility,
the weight to be given to Edwards’s testimony was a matter for the fact finder to
decide. This court is not the arbiter of the accuracy of dueling experts.5

¶19 Sullivan emphasizes that the evidence “must be sufficiently strong
and convincing to exclude every reasonable hypothesis consistent with the
defendant’s innocence in order to meet the demanding standard of proof beyond a
reasonable doubt.” State v. Poellinger, 153 Wis. 2d 493, 502, 451 N.W.2d 752
(1990). Notably, Poellinger made clear that this is the standard the jury must
apply and is “not the test on appeal.” Id. at 503. Poellinger also made clear that
the standard “does not mean that if any of the evidence brought forth at trial
suggests innocence, the jury cannot find the defendant guilty.” Id. at 503. Rather,

5
To this point, we offer no opinion about whether Edwards’s testimony was accurate.
Even the prosecutor seemed to acknowledge that her testimony was difficult to follow, offering in
closing argument: “Now, how does Ms. Edwards explain the blood evidence in this case? First
of all, I’ll say probably not very well and probably not very well because of me.”

8
No. 2021AP1422-CR

“the rule that the evidence must exclude every reasonable hypothesis of innocence
refers to the evidence which the jury believes and relies upon to support its
verdict.” Id. As explained above, the jury could have reasonably concluded that
Sullivan was lying at trial and credited the State’s expert testimony that he was
intoxicated at the time of the collision.

¶20 Sullivan’s next sufficiency-of-the-evidence challenge is not so much
that, but a challenge to the prosecutor’s statements during closing arguments about
his affirmative defense.6 Indeed, he cites the premier case for prosecutorial
misconduct at trial, Berger v. United States, 295 U.S. 78 (1935). Sullivan,
however, did not interpose a single objection to the prosecutor’s closing argument
at trial. And while we may review constitutional matters despite the lack of a
contemporaneous objection, see State v. Saunders, 2011 WI App 156, ¶29 n.5,
338 Wis. 2d 160, 807 N.W.2d 679, Sullivan’s arguments here are merely
conclusory assertions and do not establish that any allegedly inappropriate
commentary “so infected the trial with unfairness as to make the resulting
conviction a denial of due process,” see State v. Bell, 2018 WI 28, ¶15, 380
Wis. 2d 616, 909 N.W.2d 750 (citation omitted).7

6
Sullivan also attacks Edwards’s expert testimony regarding his degree of intoxication
as part of his arguments regarding his affirmative defense. It is unclear what significance her
testimony has on that point, and Sullivan’s reasoning is difficult to follow. To the extent Sullivan
intended to raise an argument that we have not addressed, we deem it insufficiently developed.
See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).
7
To the extent Sullivan provides specific examples of topics where he believes the
prosecutor overstepped the permissible bounds of commentary, we are unpersuaded. As the State
sets forth, Sullivan overreads or mischaracterizes many of the prosecutor’s comments. Other of
the prosecutor’s comments or strategies were clearly permissible; for example, there is no merit
to Sullivan’s claim that the prosecutor acted inappropriately by commenting on “how the defense
experts were compensated and attacking the veracity of Sullivan, his wife and other witnesses, [in
particular] about what they did and drank that day.”

(continued)

9
No. 2021AP1422-CR

¶21 Sullivan’s argument fares no better even if analyzed strictly using
sufficiency-of-the-evidence principles. He argues:

The testimony, conclusions, and demonstrative video
exhibits of both the State’s and the defense accident
reconstruction, boat operation and visibility experts all
dove-tail with each other that the collision between the
[K.L.’s] boat and the Sullivan boat, given how both drivers
were looking ahead of them, in the final minute before the
collision, made the accident both unavoidable by that time
and inevitable.

Sullivan likens this case to “a child darting out unexpectedly from between parked
cars at night.” Accordingly, he argues the jury (and, by extension, the circuit
court) had no obligation but to acquit him of the homicide offenses.

¶22 WISCONSIN STAT. § 940.09(2)(a) (2017-18) provides an affirmative
defense if the defendant proves by a preponderance of the evidence “that the death
would have occurred even if he or she had been exercising due care and he or she
had not been under the influence of an intoxicant.” The statute incorporates case
law establishing that the defendant’s own negligence is not a defense. State v.
Raczka, 2018 WI App 3, ¶11, 379 Wis. 2d 720, 906 N.W.2d 722 (2017).

¶23 Sullivan’s arguments on this point generally take the witness
testimony (and inferences therefrom) in the light most favorable to him, which is
not our standard of review in a sufficiency-of-the-evidence challenge. Rather, as

We also cannot let pass without comment Sullivan’s assertion that “the prosecutor argued
that despite the facts of record, the jury should dispense with the affirmative defense in their
deliberations.” The prosecutor did no such thing. In fact, he suggested to the jury during closing
arguments that the affirmative defense should be the first thing they address during their
deliberations. Though the prosecutor urged the jury to reject the affirmative defense and find that
“[i]f the defendant had been exercising due care, scanning 10 to 2, this crash doesn’t happen,” he
did not urge the jury to ignore the affirmative defense as Sullivan suggests.

10
No. 2021AP1422-CR

the State observes, the issue was not whether Sullivan saw K.L.’s boat in time to
avoid the collision; he clearly did not. The issue was whether Sullivan
demonstrated as a matter of law that the crash was unavoidable even if he had
been exercising due care and was not intoxicated.

¶24 On that point, there was testimony from both Department of Natural
Resources warden Patrick Neal and Sullivan’s defense expert, James Sobek, that
would have allowed the jury to conclude the collision could have been prevented
had Sullivan exercised reasonable care. Neal opined that operating a watercraft is
much different than driving a car and operators should “basically [be] watching
where they’re going or have their heads on [a] swivel.” He testified that if
Sullivan was doing this, assuming both boats were properly lit, Sullivan should
have seen K.L.’s boat approaching.8 The navigational lights on K.L.’s vessel
should have been visible “[i]f the operator is paying attention.” And Neal testified
that K.L.’s boat was the “stand-on vessel” and had the right of way. If Sullivan
had seen K.L.’s boat, he would have been required to yield.

¶25 Sullivan characterizes Sobek’s testimony as an opinion that the
collision was inevitable “[g]iven how both operators were looking forward, and
not scanning further to their periphery, in the moments before the collision.” Yet
Sobek largely concurred with Neal’s assessment that the boat operators should
have been keeping a more thorough lookout. He testified, “Mr. Neal used the
phrase that is a good description that you need to have your head on a swivel. You
need to be looking here and back here and not just within [these] plus or minus 25

8
The prosecutor acknowledged when asking the question that “the jury is going to have
to figure out if everybody’s lights were on in this case.”

11
No. 2021AP1422-CR

or plus or minus 60 [degree angles] …. You need to maintain situational
awareness as you are operating a boat.” Sobek testified that it was “[p]retty close
to [a] certainty” that if each of the boat operators had looked and concentrated at
the areas even within forty-five degrees of straight ahead, they would have been
able to see each other and avoid the collision.9 But if the operators were looking
forward and scanning only within ten or twenty-five degrees to either side, it was
unlikely they would have noticed the other boat in time. Sobek’s opinion was that
proper visual scanning even thirty seconds prior to the accident would have
allowed Sullivan to perceive K.L.’s approaching boat and see the white and red
navigational lights.

¶26 As the foregoing demonstrates, there was sufficient testimony from
which the jury could conclude that the accident was avoidable had Sullivan been
exercising due care and had he not been intoxicated. Sullivan was not entitled to a
judgment of acquittal as a matter of law based on the WIS. STAT. § 940.09(2)(b)
(2017-18) affirmative defense.

II. Exercise of Sentencing Discretion

¶27 Sullivan next argues the circuit court erroneously exercised its
sentencing discretion by emphasizing general deterrence and the seriousness of the
offense. We review a court’s sentencing decision for an erroneous exercise of
discretion. State v. Whitaker, 2022 WI 54, ¶11, 402 Wis. 2d 735, 976 N.W.2d
304. Sentencing factors are proper when they inform valid sentencing objectives,

9
Sullivan clearly believes this degree of scanning was unreasonable to require of a boat
operator. However, the amount of due care to be exercised under the circumstances was a factual
matter for the jury’s determination. We perceive no basis to second-guess the jury’s
determination that the collision was preventable in the exercise of due care.

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No. 2021AP1422-CR

which include the protection of the community, punishment or rehabilitation of the
defendant, and deterrence to others. Id., ¶12 (citing State v. Gallion, 2004 WI 42,
¶40, 270 Wis. 2d 535, 678 N.W.2d 197). The primary factors informing those
objectives are the gravity of the offense, the character of the offender, and the need
to protect the public. Id. A host of secondary factors can also be relevant, as
Whitaker sets forth. See id. (citing Gallion, 270 Wis. 2d 535, ¶43 n.11).

¶28 Contrary to Sullivan’s argument, we do not perceive the circuit
court’s sentences as being “incorrect factually, analytically, as well as on the
applicable law.” We begin with the facts. For the reasons previously stated, we
reject Sullivan’s claim that this was simply an unavoidable accident in which
“neither boat driver saw the other until it was too late.”

¶29 Analytically, Sullivan fails to identify any point at which the circuit
court deviated from appropriate sentencing considerations. At the outset of its
sentencing remarks, it recognized the three primary sentencing factors. It
acknowledged it was required to impose a sentence with the minimum amount of
custody or confinement consistent with those factors. The court also
acknowledged many mitigating factors, and it concluded that Sullivan was not a
risk to the public nor did he require treatment in the correctional system.
However, the court determined that given that two young women had died, it
would unduly depreciate the seriousness of the offenses to impose probationary
sentences. The court further remarked that its concurrent six-year sentences
advanced the goal of general deterrence.

¶30 Sullivan argues the circuit court erroneously exercised its sentencing
discretion because there is scant empirical evidence that deterrence through the
imposition of criminal sanctions works well. As set forth above, deterrence is a

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No. 2021AP1422-CR

well-established consideration for sentencing. Whitaker, 402 Wis. 2d 735, ¶12.
Even Sullivan characterizes it as a “pillar of the criminal justice system.”

¶31 Moreover, though the court colorfully stated deterrence was “the
only reason why you’re going to prison,” taken in context this comment was
clearly meant to acknowledge Sullivan’s many positive attributes. Immediately
thereafter, the court again stated that a probationary sentence would be
inappropriate given that two individuals had lost their lives as a result of
Sullivan’s criminal conduct. There is no merit to Sullivan’s assertion that the
court placed improper weight on deterrence.

¶32 Sullivan also claims the circuit court failed to adequately explain its
sentence. We disagree. As set forth above, the court articulated on the record
appropriate sentencing objectives and factors. The weight to be attached to those
factors is within the circuit court’s sound discretion. State v. Evers, 139 Wis. 2d
424, 452, 407 N.W.2d 256 (1987). Here, the court stated precisely why it was
ordering Sullivan to serve a prison term. Moreover, given the balancing of
considerations the circuit court performed on the record, we conclude the court did
not erroneously exercise its discretion when it sentenced him to a total term of
imprisonment of six years for homicide offenses that exposed Sullivan to
potentially decades of imprisonment. See WIS. STAT. § 939.50(3)(d) (2017-18)
(establishing a maximum of twenty-five years’ imprisonment for Class D
felonies).

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

14