State v. Matthew J. Steinhorst

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.
December 12, 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. 2018AP1759-CR Cir. Ct. No. 2015CF88

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MATTHEW J. STEINHORST,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Sauk County:
WENDY J.N. KLICKO, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard and Kloppenburg, 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 PER CURIAM. Matthew Steinhorst appeals a judgment of
conviction for homicide by intoxicated use of a vehicle. Steinhorst and James
No. 2018AP1759-CR

Wedekind were both in a vehicle which left the road, rolled over, and caused
Wedekind’s death. Steinhorst was charged with multiple vehicular offenses
relating to the crash. Before trial, Steinhorst requested that the Sauk County
Circuit Court allow him to introduce evidence of character traits and habit
pursuant to WIS. STAT. §§ 904.04(1)(a) and (b) and 904.06(1) (2017-18).1
Steinhorst argued that such evidence would prove, circumstantially, that
Wedekind, and not Steinhorst, was the driver of the vehicle at the time of the
incident. The circuit court denied Steinhorst’s motion. Steinhorst contends that
the circuit court erroneously exercised its discretion in denying his motion.
Steinhorst asks this court to reverse those rulings of the circuit court and his
judgment of conviction and remand this matter for a new trial. We conclude that
the circuit court did not erroneously exercise its discretion in denying Steinhorst’s
motion. Therefore, we affirm Steinhorst’s conviction.

BACKGROUND

¶2 The following facts are not in dispute.

¶3 On May 31, 2014, at approximately 3:30 a.m., Steinhorst and
Wedekind were involved in a motor vehicle accident when the vehicle they were
in, which was traveling between 96 and 98 miles per hour, left the road and rolled
multiple times. Wedekind was ejected from the vehicle and died from the injuries
he sustained. Steinhorst suffered injuries to the left side of his body and was
found walking down the road barefoot by persons who lived near the crash site.
Both men were found to have alcohol in their systems at the time of the crash

1
All references to the Wisconsin statutes are to the 2017-18 version unless otherwise
noted.

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No. 2018AP1759-CR

(with Steinhorst’s blood alcohol concentration at .226), and Steinhorst was found
to have THC in his system.

¶4 Steinhorst was charged with homicide by intoxicated use of a
vehicle, homicide by use of a vehicle with a prohibited alcohol concentration, and
homicide by use of a vehicle with a detectable presence of a controlled substance
in his system. Steinhorst’s defense at trial was that Wedekind was the driver of
the vehicle at the time of the crash. Before trial, Steinhorst requested that the
circuit court admit testimony regarding his and Wedekind’s purported character
traits regarding their driving. Specifically, Steinhorst sought to admit testimony
that he was a responsible and cautious driver, and that Wedekind was a “reckless,
drunk, controlling, and aggressive driver.” Steinhorst’s motion also sought to
admit testimony regarding Wedekind’s alleged driving habits, specifically, that
Wedekind had a habit of driving “fast” and, when “hammered,” driving recklessly.
The circuit court denied Steinhorst’s motion.

¶5 Following a jury trial, Steinhorst was found guilty of homicide by
intoxicated use of a vehicle. Steinhorst appeals.

¶6 Additional facts are discussed below where necessary.

DISCUSSION

¶7 Steinhorst contends that the circuit court erred when it denied his
motion to admit evidence of character traits under WIS. STAT. § 904.04(1)(a) and
(b), and evidence of habit under WIS. STAT. § 904.06(1). Below, we set forth our
standard of review, summarize the relevant law, and then address, and reject,
Steinhorst’s arguments.

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No. 2018AP1759-CR

I. Standard of Review.

¶8 We review a circuit court’s decision to admit or exclude evidence
under the erroneous exercise of discretion standard. See State v. Jackson, 2014
WI 4, ¶43, 352 Wis. 2d 249, 841 N.W.2d 791. A circuit court has broad discretion
to admit or exclude evidence. Martindale v. Ripp, 2001 WI 113, ¶28, 246 Wis. 2d
67, 629 N.W.2d 698. A circuit court does not erroneously exercise its discretion if
it applies the proper law to the established facts and there is any reasonable basis
for the court’s ruling. Balz v. Heritage Mut. Ins. Co., 2006 WI App 131, ¶14, 294
Wis. 2d 700, 720 N.W.2d 704.

II. Admissibility of Character Trait Evidence Under
WIS. STAT. § 904.04(1)(a) and (b).

A. What Constitutes a Character Trait.

¶9 We are called upon to decide whether the circuit court properly
exercised its discretion in excluding evidence of alleged character traits Steinhorst
sought to admit under WIS. STAT. § 904.04(1)(a) and (b). That rule of evidence
provides in pertinent part:

Evidence of a person’s character or a trait of the person’s
character is not admissible for the purpose of proving that the
person acted in conformity therewith on a particular occasion,
except:

(a) Character of accused. Evidence of a pertinent trait
of the accused’s character offered by an accused, or by the
prosecution to rebut the same;

(b) Character of victim.… [E]vidence of a pertinent trait
of character of the victim of the crime offered by an accused ….

Sec. 904.04(1). As related to this appeal, that rule of evidence can be summarized
as follows. Generally, evidence of a person’s character trait cannot be used to

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No. 2018AP1759-CR

prove that a person acted in conformity with that trait. See § 904.04(1).
Section 904.04(1)(a) sets forth an exception to this general rule and allows an
accused to present evidence of a pertinent character trait of himself or herself. A
second exception allows the accused to present evidence of a pertinent character
trait of the crime victim. Sec. 904.04(1)(b).

¶10 The phrase “character trait” is not defined by statute.2 However, this
court has relied upon the following definition: “Character is a generalized
description of a party’s nature, or of the disposition in respect to a general trait,
such as honesty, temperance or peacefulness.” Balz, 294 Wis. 2d 700, ¶16; see
also State v. Bedker, 149 Wis. 2d 257, 269, 440 N.W.2d 802 (Ct. App. 1989) (“A
few general [character] traits, like being law-abiding, seem sufficiently relevant to
almost any accusation.” (quoted source omitted)); King v. State, 75 Wis. 2d 26,
39, 248 N.W.2d 458 (1977) (there can be a “general character trait of nonhostility
and nonaggressiveness”).

¶11 We now turn to the testimony that Steinhorst asserts should have
been admitted at trial as evidence of his, and Wedekind’s, character traits.

B. Character Traits of Steinhorst.

¶12 As noted, Steinhorst requested that the circuit court admit testimony
about his alleged character traits in order to prove, circumstantially, that he was

2
The circuit court correctly noted that the specific question framed by WIS. STAT.
§ 904.04(1)(a) and (b) is whether the accused and the victim had a pertinent “character trait”; in
other words, a “trait of … character” as phrased in § 904.04(1)(a) and (b). The parties, in briefing
in this court, sometimes refer to the “character” of Steinhorst and Wedekind. We discern no
material difference between those terms as applied in this appeal but use the term “character trait”
to be consistent with case law. See, e.g., State v. Jackson, 2014 WI 4, ¶¶72, 81, 352 Wis. 2d 249,
841 N.W.2d 791.

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No. 2018AP1759-CR

not driving the vehicle at the time of the crash. Specifically, Steinhorst sought to
admit testimony that he is a “responsible” and “cautious driv[er]” and that he “is
not a reckless and aggressive driver.”

¶13 The circuit court ruled that the testimony Steinhorst sought to admit
regarding himself did not concern a character trait under WIS. STAT.
§ 904.04(1)(a). After correctly noting the applicable rule of evidence, the circuit
court stated: “The specific behavior that is being offered by [Steinhorst] … does
not … translate[] into a character trait. Choosing to … speed or not is really a
propensity to act, not a way of being.”

¶14 Steinhorst’s argument that his alleged behavior is a character trait
consists of the following:

In reaching this conclusion, though, the [circuit] court
failed to consider the fact that the defendant offered the
evidence of the defendant’s character that he was a driver
[who] was responsible and cautious, and not reckless and
aggressive. Had the court considered such, it likely would
have rendered a different outcome. Consequently, the
[circuit] court failed to exercise appropriate discretion.

Those sentences do not contain a basis for this court to overturn the circuit court’s
exercise of discretion. Steinhorst gives no explanation as to why the testimony he
proffers about himself is a character trait under Wisconsin law. Also, Steinhorst
does not discuss any mistake in the circuit court’s reasoning. The closest
Steinhorst comes to asserting any flaw in the circuit court’s ruling is his contention
that the court failed to consider alleged facts. However, the record shows that the
circuit court did consider those allegations and exercised its discretion to exclude
the testimony.

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No. 2018AP1759-CR

¶15 In sum, Steinhorst fails to show that the circuit court erroneously
exercised its discretion in excluding testimony regarding Steinhorst’s purported
character traits.

C. Character Traits of Wedekind.

¶16 Also as noted, Steinhorst requested that the circuit court admit
testimony regarding Wedekind’s alleged character traits in order to prove,
circumstantially, that Wedekind was driving the vehicle at the time of the crash.
Specifically, Steinhorst sought to admit testimony that Wedekind was a “reckless,
drunk, controlling, and aggressive driver.” By “controlling” Steinhorst means that
Wedekind had “a penchant for being in control and driving other people’s
vehicles.”

¶17 The circuit court ruled that the testimony Steinhorst sought to admit
regarding Wedekind did not concern character traits under WIS. STAT.
§ 904.04(1)(b). The court first noted the applicable rule of evidence and then
stated: “The specific behavior that is being offered by [Steinhorst] … does not …
translate[] into a character trait. Choosing to be the driver of a car or choosing
whether to speed or not is really a propensity to act, not a way of being.”

¶18 Steinhorst advances three arguments regarding the admissibility of
the testimony regarding Wedekind’s alleged character traits, and we reject each.

¶19 First, Steinhorst contends that Wedekind “was a reckless,
controlling, drunk, and aggressive driver, and this fact tended to provide weight
towards the fact that the alleged victim was the driver since the driver [at the time
of the crash] was intoxicated, reckless, and aggressive.” This argument may go to

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No. 2018AP1759-CR

whether this testimony is relevant. But, it does not take up the question before this
court about whether the testimony concerns a character trait of Wedekind.

¶20 Second, Steinhorst asserts the following: “In reaching this
conclusion, though, the [circuit] court failed to consider the fact the defendant
offered the evidence of the alleged victim’s character that he was a driver [who]
was reckless, drunk, and aggressive.” Steinhorst fails to point out why the alleged
actions of Wedekind in driving recklessly and aggressively while drunk are
character traits under WIS. STAT. § 904.04(1)(b). Steinhorst does not discuss any
mistake in the circuit court’s reasoning except to argue that the court failed to
consider alleged facts. However, the record shows that the circuit court did
consider those allegations that Steinhorst relies on and exercised its discretion to
exclude the testimony.

¶21 Third, Steinhorst argues that “[f]urthermore, controlling, or … the
desire to be in control is a character trait.” However, this argument is conclusory
and untethered to any substantive analysis or supporting legal authority.
Accordingly, we will not consider this argument further. See State v. Pettit, 171
Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (we generally do not address
undeveloped arguments).

¶22 In sum, Steinhorst fails to show that the circuit court erroneously
exercised its discretion in excluding testimony regarding Wedekind’s purported
character traits.

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No. 2018AP1759-CR

III. Admissibility of Habit Evidence Under WIS. STAT. § 904.06(1).

A. What Constitutes a Habit.

¶23 Steinhorst’s argument regarding “habit” evidence is based on WIS.
STAT. § 904.06(1), which states in pertinent part: “[E]vidence of the habit of a
person … is relevant to prove that the conduct of the person … on a particular
occasion was in conformity with the habit or routine practice.” Sec. 904.06(1).
As noted by the circuit court, “[h]abit is a regular repeated response to a repeated,
specific situation.” Balz, 294 Wis. 2d 700, ¶15. Phrased another way, “habit” is
“a semi-automatic response to a specific set of circumstances.” DANIEL D.
BLINKA, WISCONSIN PRACTICE SERIES: WISCONSIN EVIDENCE § 406.1 at 282 (4th
ed. 2017). “The frequency and consistency” that must be present for behavior to
become habit is “not subject to a specific formula, and [the] admissibility [of
purported habit evidence] depends on the [circuit] court’s evaluation of the
particular facts of the case.” Balz, 294 Wis. 2d 700, ¶15. Evidence of a person’s
habit is admissible when a fact finder could find that it is more probable than not
that a person acted consistently with that habit in the context of the issues in that
case. Balz, 294 Wis. 2d 700, ¶15; see also § 904.06(1).

¶24 The applicable analysis has two steps. The circuit court must first
determine “whether the proffered behavior rises to the level of a habit” before the
court determines “whether the proponent offered sufficient evidence that the
individual has such a habit.” See BLINKA, supra, § 406.2 at 284, 286. We now
discuss both steps.

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No. 2018AP1759-CR

B. Habit Evidence as to Wedekind.

¶25 Steinhorst argues that the circuit court erred by not admitting,
pursuant to WIS. STAT. § 904.06(1), testimony that Wedekind had a habit of
driving “fast” and, when “hammered” (which we take to mean extremely
intoxicated), drove in a “reckless” manner.

¶26 In the first step of the analysis, a court determines whether the
behavior rises to the level of a “habit.” The circuit court here determined that the
allegations regarding Wedekind driving fast and recklessly while intoxicated were
not a habit pursuant to WIS. STAT. § 904.06(1). Specifically, the court explained
that “[t]here are too many variables” and that “[j]ust because a witness says
someone did something habitually does not make it a habit under [the rules] of
evidence.” The court further stated that it “agree[ed] with the footnote in Hart
that there is no habit of due care or lack thereof.” See Hart v. State, 75 Wis. 2d
371, 392 n.9, 249 N.W.2d 810 (1977) (“doubt[ing] the existence of a ‘habit’ of
due care or lack thereof”).

¶27 Steinhorst argues that the supreme court in Hart did not definitively
hold that there is no habit of due care or lack thereof. Rather, according to
Steinhorst, the supreme court in Hart left “wiggle room for some occasions,” such
as when “one … always drives reckless.” We need not resolve the general
question of whether a person can have a habit of driving in a fast, reckless manner
while intoxicated. As we now explain, Steinhorst fails the second step in the
analysis because the testimony proffered by Steinhorst’s two proposed witnesses is
not sufficiently detailed to establish that Wedekind had a “regular repeated” and
“semi-automatic” response of driving fast and recklessly whenever he was
intoxicated. See Balz, 294 Wis. 2d 700, ¶15; BLINKA, supra, § 406.1 at 282.

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No. 2018AP1759-CR

¶28 Steinhorst asserts that the circuit court “failed to consider” that his
first proposed witness, Shawn Miller, told an investigator that Wedekind “always
drove fast,” and “when [Wedekind] was hammered,” Wedekind “drove reckless.”
Specifically, Steinhorst cites to a summary prepared by a private detective of the
detective’s interview of Miller. The interview summary states that “[Miller] said
he has ridden in a vehicle with [Wedekind], as the driver, ‘more than 1000
times,’” and that “[Miller] said [Wedekind] ‘always drove fast’ and … if
[Wedekind] ‘was hammered’ then ‘he drove reckless.’” Steinhorst argues that
“[d]oing something all the time … fit[s] under the definition of habit” and,
therefore, “one who always speeds” or “consistently [drove recklessly while] …
heavily under the influence of intoxicants” can have a habit of driving in those
manners.

¶29 The statements made by Miller provide, at most, support for the
proposition that when Wedekind drove and Miller was with him and Wedekind
was “hammered,” Wedekind drove over the speed limit and recklessly. Putting
aside the fact that speeding while “hammered” is, by any definition, “reckless,”
Miller’s proffered testimony fails to provide sufficient detail to establish that any
particular conduct of Wedekind was “a regular repeated response to a repeated,
specific situation.” See Balz, 294 Wis. 2d 700, ¶15. It is sufficient to note that
Miller failed even to specify how many times he witnessed a “hammered”
Wedekind drive recklessly.

¶30 Steinhorst argues that his second proposed witness stated that
Wedekind “always drove fast.” More particularly, Steinhorst alleges that Chris
Befera stated that Wedekind was “a ‘fast driver’ and a ‘reckless driver,’” and that
Wedekind “was ‘always’ driving over the speed limit.” However, Befera’s
statements do not establish how much over the speed limit Wedekind drove, so

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No. 2018AP1759-CR

Steinhorst cannot show that Befera’s proffered testimony is relevant to this case
where the driver was going almost 100 miles per hour. Like Miller’s proffered
testimony, Befera’s proffered testimony fails to provide sufficient detail to
establish a habit relevant to the facts of this case.

¶31 In summary, Steinhorst has not pointed to sufficiently detailed
proffered evidence that Wedekind had a habit of driving fast and recklessly when
he was intoxicated. Accordingly, we conclude that the circuit court did not
erroneously exercise its discretion in denying Steinhorst’s motion to admit the
testimony under WIS. STAT. § 904.06(1).

CONCLUSION

¶32 For the foregoing reasons, the judgment of the circuit court is
affirmed.

By the Court.—Judgment affirmed.

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

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