State v. Kody R. Kohn

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.
September 22, 2021
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. 2020AP2147-CR Cir. Ct. No. 2019CT90

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KODY R. KOHN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Ozaukee County:
PAUL V. MALLOY, Judge. Affirmed.

¶1 GROGAN, J.1 Kody R. Kohn appeals from a judgment of
conviction after a jury found him guilty of operating a motor vehicle while

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2020AP2147-CR

intoxicated (OWI) and operating with a prohibited alcohol concentration (PAC),
both as second offenses, and of bail jumping. On appeal, Kohn asserts the trial
court erred when it: (1) denied his pre-trial motion to suppress evidence arising
from the blood draw; (2) excluded five exhibits Kohn intended to introduce into
evidence during cross-examination of the State’s blood analyst at trial thereby
violating his right to due process; and (3) denied his motions to dismiss and for
judgment notwithstanding the verdict as to the bail-jumping charge. Because the
trial court did not err in any respect, this court affirms.

I. BACKGROUND

¶2 A City of Port Washington police officer initiated a traffic stop
involving Kohn in a separate matter on November 25, 2018. Kohn was arrested
and received a citation for OWI first offense, and he was convicted on
February 15, 2019. He was also charged with multiple misdemeanors related to
that traffic stop in Ozaukee County case No. 2018CM499. Kohn was released on
November 26, 2018, pursuant to certain bail/bond conditions, which included a
condition that he not commit any additional crimes. Kohn signed the bail/bond
form.

¶3 Four days after being released with those conditions, on
November 30, 2018, at 1:59 a.m., City of Port Washington Police Officer Ryan
Hurda initiated a traffic stop involving Kohn after noticing damage to Kohn’s
vehicle and observing Kohn drifting within the traffic lane while traveling 34 mph
in a 25 mph zone. Officer Hurda noticed a strong scent of intoxicants when he
approached Kohn’s vehicle, and he observed that Kohn’s eyes were glassy and
“watery.” Officer Hurda administered multiple field sobriety tests. After
determining Kohn was intoxicated, he placed Kohn under arrest.

2
No. 2020AP2147-CR

¶4 Officer Hurda read Kohn the Informing the Accused Form and
administered Miranda2 warnings. The Informing the Accused Form, which
mirrors WIS. STAT. § 343.305(4), states, in relevant part:

This law enforcement agency now wants to test one or
more samples of your breath, blood or urine to determine
the concentration of alcohol or drugs in your system. If any
test shows more alcohol in your system than the law
permits while driving, your operating privilege will be
suspended. If you refuse to take any test that this agency
requests, your operating privilege will be revoked and you
will be subject to other penalties. The test results or the
fact that you refused testing can be used against you in
court.

(Emphasis added.) Kohn consented to the blood draw, which was performed at
3:17 a.m. The sample was sent to the Wisconsin State Laboratory of Hygiene,
where a blood analyst performed an analysis of Kohn’s blood sample on
December 10, 2018. The test results revealed a blood alcohol
concentration (BAC) of .086. On February 28, 2019, the State filed a complaint in
Ozaukee County, case No. 2019CT90, charging Kohn with OWI and PAC, both as
second offenses. The State later added a misdemeanor bail-jumping charge based
on the bail/bond condition in Ozaukee County case No. 2018CM499 that Kohn
not commit any additional crime after his release on November 26, 2018.

¶5 Kohn filed a pre-trial motion to suppress evidence stemming from
the blood draw, arguing his consent was involuntary due to misleading and
coercive language in the Informing the Accused Form. He argued his consent was
involuntary because the language “[i]f you refuse to take any test that this agency
requests … you will be subjected to other penalties” was coercive and an incorrect

2
Miranda v. Arizona, 384 U.S. 436 (1966).

3
No. 2020AP2147-CR

statement of law.3 The trial court denied the motion in a written order signed on
February 6, 2020.

¶6 At trial, Kohn sought to introduce five physical exhibits related to
the BAC test results and testing process he intended to use while cross-examining
the State’s blood analyst. The State objected on the grounds that Kohn had not
disclosed the exhibits prior to trial—including prior to jury selection when the trial
court addressed the parties’ motions in limine—despite the State’s WIS. STAT.
§ 971.23(2m) discovery request. In response, Kohn asserted he was not obligated
to produce the exhibits in response to the State’s discovery request because: (1)
the documents were not related to a defense expert’s testimony or a defense
expert’s test results; (2) the documents were related to the State’s blood test, which
he argued the State already had access to; and (3) doing so would “telepath” the
defense strategy to the State. The trial court excluded the five exhibits based on
Kohn’s having failed to comply with § 971.23(2m)(c), but confirmed Kohn would
otherwise have an opportunity for “[c]omplete cross-examination” of the analyst.

¶7 The State’s blood analyst testified at length about blood sample
testing procedures, the process for calibrating the testing machine, the blood test
analysis results, and the cleaning and maintenance of the machines used to
perform the test. He also provided expert testimony as to retrograde extrapolation,
which is a calculation that takes into account known information such as the BAC
in the blood sample, the time the blood sample was taken compared to the time of

3
Kohn also argued the statement “the fact that you refused testing can be used against
you in court” was false. Kohn has not pursued that argument on appeal, and therefore this court
need not address it. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588
N.W.2d 285 (Ct. App. 1998) (“[A]n issue raised in the trial court, but not raised on appeal, is
deemed abandoned.”).

4
No. 2020AP2147-CR

the traffic stop, and the time the individual last consumed an alcoholic beverage,
to determine an individual’s possible BAC at a prior point in time. Based on
Kohn’s .086 BAC test result, the time of the blood draw (3:17 a.m.), the time of
the traffic stop (1:59 a.m.), and the time Kohn stopped drinking (1:00 a.m.), the
analyst testified that based on his retrograde extrapolation calculation, Kohn’s
BAC at the time of the traffic stop may have ranged between .098 and .111.

¶8 During cross-examination, Kohn elicited testimony from the analyst
regarding the calibration process used on the machine prior to having tested
Kohn’s blood samples. The analyst explained that to calibrate the machine, he ran
tests of five samples with known quantities of the chemical ethanol. This allowed
the analyst to determine whether the machine was accurately measuring the
amount of ethanol present. The analyst then ran two “blanks”—samples that did
not contain ethanol—to confirm whether there was any “carryover contamination”
from the prior ethanol-containing samples. The first “blank” returned a result of
.006, which the analyst testified would be reported as not detected. 4 He further
testified he did not believe Kohn’s sample was affected by the carryover amount
because first, the amount of the carryover was not reportable, and second, the
carryover contamination immediately followed a sample with a target value of
0.631, which is a result the analyst testified would not be found in a living human
and therefore would not be seen in an actual blood sample. A second “blank”
returned a result of 0.00.

¶9 The analyst explained that he ran two tests of Kohn’s blood sample,
which were the seventy-third and seventy-fourth tests run in a batch of ninety-six

4
Test results of 0.01 and higher are considered reportable amounts.

5
No. 2020AP2147-CR

test tubes, and he also ran a control test during that process. Fourteen samples
were run between the control and Kohn’s sample. The results for those samples
included 0.227, 0.228, 0.244, and 0.243. The analyst testified that relative to the
carryover contamination detected in the blank during the calibration process, he
did not believe carryover contamination impacted Kohn’s test result because the
carryover contamination in the blank was an unreportable amount and had
followed a sample significantly higher than the samples preceding Kohn’s sample.

¶10 Kohn also elicited testimony from the analyst regarding the cleaning
process for the diluters used to dilute Kohn’s blood sample as part of the testing
process. The analyst testified that the diluter used for Kohn’s blood sample was
last cleaned ten days prior to testing Kohn’s sample and that the length of time that
had passed since the diluter was last cleaned would not have invalidated Kohn’s
test results.

¶11 The jury found Kohn guilty on all three counts, and Kohn then
moved to dismiss and for judgment notwithstanding the verdict. Kohn argued
dismissal or judgment notwithstanding the verdict was appropriate as to the bail-
jumping charge because he did not violate the terms of his bail/bond from the
2018CM499 case by committing a new crime because as of November 30, 2018,
he did not have any prior OWI or PAC convictions and therefore the November 30
incident was, at the time the incident occurred, a traffic violation rather than a
crime. The trial court denied both motions and entered a judgment of conviction
on all counts.5 As to the OWI conviction, the trial court sentenced Kohn to fifteen

5
Although the jury found Kohn guilty of both OWI and PAC, the court imposed
sentence only as to the OWI second offense pursuant to WIS. STAT. § 346.63(1)(c).

6
No. 2020AP2147-CR

days in jail with Huber privileges (with credit for time served according to jail
records), a $350 fine, an eighteen-month revocation of driving privileges, an
ignition interlock device for eighteen months, and an alcohol assessment. On the
bail-jumping conviction, the trial court fined Kohn $500 plus costs. The trial court
also required that Kohn take a DNA test and pay costs for each count that resulted
in conviction. The trial court granted Kohn’s motion to stay the sentence pending
appeal.

¶12 Kohn filed a notice of intent to pursue postconviction or
postdisposition relief on September 25, 2020, and he filed a notice of appeal on
December 18, 2020, seeking relief from the judgment of conviction entered on
September 28, 2020.

II. DISCUSSION

¶13 Kohn raises multiple claims on appeal: (1) the trial court should
have granted his suppression motion; (2) the trial court should not have excluded
his proffered trial exhibits; (3) he did not violate the terms of his bail/bond
conditions when he received citations for OWI and PAC on November 30, 2018;
and (4) the trial court therefore erred in denying his motions to dismiss and for
judgment notwithstanding the verdict.6 For the reasons that follow, this court
affirms.

6
On appeal, Kohn’s argument regarding the trial court’s denial of his motion to dismiss
and his motion for judgment notwithstanding the verdict is limited to the bail-jumping charge.

7
No. 2020AP2147-CR

A. The trial court did not err in denying Kohn’s motion to suppress because
Kohn voluntarily consented to the blood draw.

¶14 Kohn argues the trial court erred in denying his motion to suppress
evidence stemming from the blood draw. In support of his motion, Kohn asserts
his consent was involuntary because the Informing the Accused Form read to him
upon his arrest was a coercive and false statement of law. Review of a trial court’s
order granting or denying a suppression motion presents a question of
constitutional fact. State v. Dearborn, 2010 WI 84, ¶13, 327 Wis. 2d 252, 786
N.W.2d 97. We “will uphold the court’s factual findings unless they are clearly
erroneous,” but we apply constitutional principles to those facts independently.
State v. Coffee, 2019 WI App 25, ¶6, 387 Wis. 2d 673, 929 N.W.2d 245.

¶15 Consent is a well-established exception to the warrant requirement
found in the Fourth Amendment of the United States Constitution and article I,
section 11 of the Wisconsin Constitution. State v. Artic, 2010 WI 83, ¶¶28-29,
327 Wis. 2d 392, 786 N.W.2d 430 (citing U.S. CONST. amend. IV; WIS. CONST.
art. I, § 11). “The question of whether consent was given in fact is a question of
historical fact[,]” and the reviewing court upholds those findings so long as they
are “not contrary to the great weight and clear preponderance of the evidence.”
Artic, 327 Wis. 2d 392, ¶30. It is the State’s burden to establish consent was given
freely and voluntarily, and it must do so by clear and convincing evidence. Id.,
¶32. Factors to be considered in determining whether consent was given
voluntarily include: (1) whether police officers used deception and
misrepresentation; (2) whether officers used intimidation or deprivation; (3)
whether conditions surrounding the request were non-threatening and cooperative;
(4) how the defendant responded to the request; (5) the defendant’s characteristics,
such as age, intelligence, education, physical and emotional condition, and prior

8
No. 2020AP2147-CR

police experience; and (6) whether the defendant was informed of a right to refuse
consent. Id., ¶33.

¶16 Wisconsin’s implied consent law provides that anyone who “drives
or operates a motor vehicle upon the public highways of this state … is deemed to
have given consent to one or more tests of his or her breath, blood or urine” upon
request from a law enforcement officer to determine whether drugs or alcohol are
present in the person’s blood or breath. WIS. STAT. § 343.305(2). A law
enforcement officer may request such samples upon arrest for a violation of WIS.
STAT. § 346.63(1). Sec. 343.305(3)(a). If an officer does so, the requesting
officer is required to read the following, in relevant part:

You have either been arrested for an offense that
involves driving or operating a motor vehicle while under
the influence of alcohol or drugs, or both ….

This law enforcement agency now wants to test one or
more samples of your breath, blood or urine to determine
the concentration of alcohol or drugs in your system. If any
test shows more alcohol in your system than the law
permits while driving, your operating privilege will be
suspended. If you refuse to take any test that this agency
requests, your operating privilege will be revoked and you
will be subject to other penalties. The test results or the
fact that you refused testing can be used against you in
court.

Sec. 343.305(4) (emphasis added).7

¶17 Kohn does not argue that he did not consent to the blood draw.
Rather, he argues the language in WIS. STAT. § 363.305(4) that “you will be

7
Because the language from the Informing the Accused Form is taken directly from
WIS. STAT. § 343.305(4), this court will generally refer to the statute in addressing Kohn’s
suppression argument.

9
No. 2020AP2147-CR

subject to other penalties” rendered his consent involuntary because the language
suggests refusal may result in criminal penalties and was therefore coercive and
misleading. When reviewing statutory language, this court “ascertain[s] and
appl[ies] the plain meaning of the statutes as adopted by the legislature.” White v.
City of Watertown, 2019 WI 9, ¶10, 385 Wis. 2d 320, 922 N.W.2d 61.
“[S]tatutory interpretation ‘begins with the language of the statute[,]’” and the
language is given its “common, ordinary, and accepted meaning[.]” State ex rel.
Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶¶45-46, 271 Wis. 2d 633, 681
N.W.2d 110 (citation omitted) (“Context is important to meaning. So, too, is the
structure of the statute in which the operative language appears. Therefore,
statutory language is interpreted in the context of which it is used; not in isolation
but as part of a whole; in relation to the language of surrounding or closely-related
statutes; and reasonably, to avoid absurd or unreasonable results.”).

¶18 It is undisputed that a person who refuses a blood or breath test
request pursuant to WIS. STAT. § 343.305(4) will be subject to “other penalties.”
However, § 343.305(4) does not directly specify what those “other penalties” may
be. To determine the meaning of that phrase and whether it is coercive or a false
statement of the law, as Kohn suggests, this court must consider it within the
context of the full sentence in which it appears: “If you refuse to take any test that
this agency requests, your operating privilege will be revoked and you will be
subject to other penalties.” Id.

¶19 Despite the absence of a list of specific penalties, WIS. STAT.
§ 343.305(4)’s warning that “other penalties” will be imposed arises in
conjunction with a reference to a non-criminal penalty (revocation of operating
privileges). This suggests the “other penalties” are likewise non-criminal in
nature, particularly where, as here, the warning does not otherwise refer to

10
No. 2020AP2147-CR

criminal penalties. A review of the penalties that may be imposed for refusing
consent confirms this understanding. See, e.g., WIS. STAT. § 343.301(1g)(am)
(ignition interlock device requirement or a 24-7 sobriety program);
§ 343.305(10)(b)2 (thirty-day waiting period before obtaining an occupational
license following refusal); see also State v. Prado, 2021 WI 64, ¶23, 397 Wis. 2d
719, 960 N.W.2d 869 (“[T]he implied consent statute gives those who are capable
of responding a choice: submit to the test and risk that the results are presented in
court, or refuse the test and face license revocation and other civil penalties.”
(emphasis added)).

¶20 Moreover, having reviewed WIS. STAT. § 343.305(4) within the
context of Wisconsin’s implied consent law, the reference to “other penalties” in
§ 343.305(4) cannot be interpreted to mean anything other than what it plainly
states—that an individual who refuses to consent will be subject to penalties in
addition to revocation of operating privileges. The statute does not refer to
criminal penalties, nor does its context imply the imposition of criminal penalties.
The admonition that someone who refuses consent will be subject to “other
penalties” upon refusal is an accurate statement of the law.8 The text of

8
We recently reached a similar conclusion as to the accuracy of WIS. STAT. § 343.305(4)
in State v. Levanduski, 2020 WI App 53, ¶15, 393 Wis. 2d 674, 948 N.W.2d 411, which
addressed the accuracy of the statutory language warning individuals that refusal to submit to a
request made pursuant to the implied consent law “can be used against you in court.”

11
No. 2020AP2147-CR

§ 343.305(4)—and by extension the Informing the Accused Form mirroring the
statutory language—is neither coercive nor misleading.9

¶21 Applying this plain language, this court concludes Kohn’s consent
was voluntary. First, Officer Hurda provided Kohn with a correct statement of
law when he warned Kohn he would be subject to “other penalties” if he refused
to consent. Second, Officer Hurda’s conduct was not misleading, coercive, or
threatening. Third, Kohn interacted with police just a few days prior to the arrest
at issue here, and that interaction arose under similar circumstances—a traffic stop
involving a suspected OWI. Finally, although Kohn was intoxicated at the time he
gave his consent to the blood draw, the BAC test results established his BAC was
only slightly over the legal limit at the time Officer Hurda read him the Informing
the Accused Form and there was no indication Kohn did not understand the
request. Accordingly, because Kohn’s consent to the blood draw was voluntary,
the trial court did not err in denying his motion to suppress.

B. The trial court properly exercised its discretion in excluding Kohn’s
trial exhibits.

¶22 Kohn next argues the trial court erred in excluding five exhibits he
intended to use during his cross-examination of the State’s blood analyst and that
exclusion of those exhibits violated his due process right to cross-examination.

9
Our supreme court recently confirmed that a motorist may be subject to civil penalties
and evidentiary consequences for refusing to submit to a blood test requested pursuant to
Wisconsin’s implied consent law. State v. Dalton, 2018 WI 85, ¶¶58-61, 383 Wis. 2d 147, 914
N.W.2d 120 (citing Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 (2016)). What a motorist
cannot be subjected to for refusing to consent to a request pursuant to the implied consent law is a
criminal penalty. Dalton, 383 Wis. 2d 147, ¶¶58-61. Here, Kohn did not refuse consent and he
was not subjected to a criminal penalty for refusal. And as explained, he likewise was not
threatened with criminal penalties for refusing to consent.

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No. 2020AP2147-CR

Resolution of this issue requires interpretation and application of WIS. STAT.
§ 971.23(2m) and (7m) to the facts, which presents a question of law we review de
novo. State v. DeLao, 2002 WI 49, ¶14, 252 Wis. 2d 289, 643 N.W.2d 480; see
also State v. Rice, 2008 WI App 10, ¶14, 307 Wis. 2d 335, 743 N.W.2d 517
(2007). Because Kohn violated his discovery obligations under § 971.23(2m)(c),
this court must also determine whether he had good cause for doing so, which is a
question of law reviewed de novo. DeLao, 252 Wis. 2d 289, ¶15; see also Rice,
307 Wis. 2d 335, ¶14. “Absent good cause, the undisclosed evidence must be
excluded.” Rice, 307 Wis. 2d 335, ¶14. “[I]f good cause exists, the [trial] court
may admit the evidence and grant other relief, such as a continuance.” Id.

1. Kohn violated WIS. STAT. § 971.23(2m)(c) without good cause.

¶23 WISCONSIN STAT. § 971.23 details the parties’ respective discovery
obligations in a criminal matter, and subsection (2m) describes the defendant’s
obligations:

(2m) WHAT A DEFENDANT MUST DISCLOSE TO THE
DISTRICT ATTORNEY. Upon demand, the defendant or his or
her attorney shall, within a reasonable time before trial,
disclose to the district attorney and permit the district
attorney to inspect and copy or photograph all of the
following materials and information, if it is within the
possession, custody or control of the defendant:

(a) A list of all witnesses, other than the defendant,
whom the defendant intends to call at trial, together with
their addresses. This paragraph does not apply to rebuttal
witnesses or those called for impeachment only.

(am) Any relevant written or recorded statements of a
witness named on a list under par. (a), including any reports
or statements of experts made in connection with the case
or, if an expert does not prepare a report or statement, a
written summary of the expert’s findings or the subject
matter of his or her testimony, and including the results of
any physical or mental examination, scientific test,

13
No. 2020AP2147-CR

experiment or comparison that the defendant intends to
offer in evidence at trial.

(b) The criminal record of a defense witness, other than
the defendant, which is known to the defense attorney.

(c) Any physical evidence that the defendant intends to
offer in evidence at trial.

Id. If a party fails to comply with its disclosure obligations, “[t]he court shall
exclude any witness not listed or evidence not presented for inspection or copying
required by this section, unless good cause is shown for failure to comply.”
Sec. 971.23(7m).

¶24 Kohn’s argument that he was not required to produce or disclose the
five exhibits at issue in response to the State’s discovery requests is based on an
erroneous interpretation of WIS. STAT. § 971.23(2m). According to Kohn, among
the reasons he was not required to produce or disclose the exhibits was that they
“were not in the ‘possession, custody or control of the defendant’ as that phrase is
intended to be used under WIS. STAT. § 971.23(2m)” because they were not
“within the exclusive possession of the defendant.” He also argued he was not
obligated to disclose the test results because the testing was not performed by a
defense expert.

¶25 Kohn’s interpretation is erroneous for multiple reasons. As stated
above, “statutory interpretation ‘begins with the language of the statute[,]’” and
courts give that language its “common, ordinary, and accepted meaning, except
that technical or specially-defined words or phrases are given their technical or
special definitional meaning.” Kalal, 271 Wis. 2d 633, ¶45 (citation omitted).
The plain language of WIS. STAT. § 971.23(2m) and (2m)(c) is clear: Pursuant to
a discovery request, a defendant is required to produce or disclose “[a]ny physical
evidence that the defendant intends to offer in evidence at the trial” that is in the

14
No. 2020AP2147-CR

“possession, custody or control of the defendant.” Nowhere does § 971.23(2m) or
(2m)(c) say that such disclosure or production is required only if the physical
evidence is within the exclusive “possession, custody or control of the defendant.”
This court will not read words into the statute. See State v. Schultz, 2020 WI 24,
¶49, 390 Wis. 2d 570, 939 N.W.2d 519, cert. denied, 141 S. Ct. 344 (2020).10
Accordingly, pursuant to the State’s discovery request, Kohn was required to
produce physical evidence he intended to introduce at trial that was in his
possession, custody, or control.

¶26 This court also rejects Kohn’s argument that he was not required to
produce the exhibits in this case because the tests were performed by the State’s
blood analyst rather than a defense expert. To read WIS. STAT. § 971.23(2m)(c) as
only requiring production of documents if such were created by or were otherwise
related to a defense expert or a defense expert’s testimony would render parts of
§ 971.23(2m) superfluous, which courts will not do. See Kalal, 271 Wis. 2d 633,
¶46 (“Statutory language is read where possible to give reasonable effect to every
word, in order to avoid surplusage.”).

10
Kohn argues that State v. DeLao, 2002 WI 49, 252 Wis. 2d 289, 643 N.W.2d 480,
supports his position that he was not required to disclose or produce the exhibits because the State
was deemed to have knowledge of the documents based on the analyst having performed the
blood test at the State’s request. Kohn’s reliance on DeLao is misplaced. The issue in DeLao
related to a party’s disclosure obligations and considered under what circumstances information
requested during discovery was within the disclosing party’s “possession, custody or control.”
Id., ¶¶21-24. The DeLao court did not address whether a party was required to disclose
information requested pursuant to WIS. STAT. § 971.23 when the requested information may have
been within the “possession, custody or control” of the requesting party. Moreover, the evidence
DeLao requested was a summary of her own statements the State planned to use at trial. DeLao,
252 Wis. 2d 289, ¶7. Despite DeLao arguably having been aware of the statements she had made
to officers during the course of the investigation, she was nevertheless entitled to the information
requested pursuant to § 971.23(1)(b). This weighs against Kohn’s argument that he was not
obligated to produce or disclose the exhibits at issue because the documents may have already
been in the State’s possession.

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No. 2020AP2147-CR

¶27 Specifically, WIS. STAT. § 971.23(2m)(am) addresses the type of
information or documents related to defense expert witnesses that a defendant
must disclose or produce in response to a discovery request. That information and
documentation includes an expert’s reports or statements, a written summary of
the expert’s findings or the nature of the expert’s testimony, and “the results of
any physical or mental examination, scientific test, experiment or comparison that
the defendant intends to offer in evidence at trial.” Id. Because § 971.23(2m)(am)
already addresses what a defendant must produce or disclose in regard to a
defendant’s expert witness or witnesses, § 971.23(2m)(c) necessarily must refer to
something other than that same information. Section 971.23(2m)(c) requires a
defendant to produce or disclose “[a]ny physical evidence that the defendant
intends to offer in evidence at the trial” if that evidence is in the defendant’s
“possession, custody or control.” (Emphasis added.)

¶28 Applying these principles to the five exhibits at issue, this court
agrees with the trial court that Kohn failed to comply with his discovery
obligations as set forth in WIS. STAT. § 971.23(2m)(c). There is no question the
documents were within Kohn’s “possession, custody or control”—he had the
documents, which he obtained via an open records request, and he had them prior
to the trial.11 The five exhibits were “physical evidence” Kohn intended to
introduce at trial, and he was therefore required to produce the documents in
response to the State’s discovery request under § 971.23(2m)(c).

11
It is not clear from the record the exact date Kohn received the documents in response
to his open records request.

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No. 2020AP2147-CR

¶29 Having determined Kohn violated his obligations under WIS. STAT.
§ 971.23(2m)(c), this court must next determine whether he had good cause for
doing so. See § 971.23(7m) (“The court shall exclude … evidence not presented
for inspection or copying required by this section, unless good cause is shown for
failure to comply.”). As the party who failed to comply with discovery
obligations, Kohn bears the burden of establishing good cause for failing to
comply.

¶30 Kohn offered the following explanations for not producing or
disclosing the five exhibits in response to the State’s discovery request: (1) the
exhibits were not within his exclusive control; (2) the exhibits were not related to a
defense expert; and (3) disclosing the documents would give the State an unfair
preview of his defense strategy. Kohn’s proffered explanations do not establish
good cause for withholding the exhibits. First, and as the trial court correctly
noted, Wisconsin has abandoned trial by surprise or ambush, which in effect was
what Kohn sought to do. See Haack v. Temple, 150 Wis. 2d 709, 716, 442
N.W.2d 522 (Ct. App. 1989). Second, Kohn’s misinterpretation of what WIS.
STAT. § 971.23(2m) requires does not amount to “good cause.” See State v.
Gribble, 2001 WI App 227, ¶31, 248 Wis. 2d 409, 636 N.W.2d 488 (no good
cause for failing to produce or disclose a witness’s statement where the
defendant’s reason for failing to do so was based on an erroneous interpretation of
WIS. STAT. § 971.23(2m)(am) (1999-2000)). Because Kohn did not have good
cause for failing to disclose the exhibits, the trial court did not err in excluding the
exhibits at trial.

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No. 2020AP2147-CR

2. Exclusion of the exhibits was not a due process violation.

¶31 In addition to his WIS. STAT. § 971.23(7m) claim rejected above,
Kohn argues that exclusion of the five exhibits precluded him from fully cross-
examining the analyst and therefore violated his due process rights. “The Sixth
Amendment secures to the accused the right to ‘be confronted with the witnesses
against him.’” Rogers v. State, 93 Wis. 2d 682, 692, 287 N.W.2d 774 (1980)
(quoting U.S. CONST. amend. VI). That right applies to the states through the
Fourteenth Amendment, and “cross-examination is the cornerstone of the right of
confrontation.” Rogers, 93 Wis. 2d at 692-93; see also State v. Lynch, 2016
WI 66, ¶41, 371 Wis. 2d 1, 885 N.W.2d 89. “A primary function of the right of
confrontation is the right to cross-examine witnesses so that their credibility may
be explored and evaluated by the jury.” Rogers, 93 Wis. 2d at 693. Article I,
section 7 of the Wisconsin Constitution provides similar protections. State v.
Hale, 2005 WI 7, ¶43, 277 Wis. 2d 593, 691 N.W.2d 637. Whether the right to
due process was violated is a question of law appellate courts review de novo.
State v. Zamzow, 2017 WI 29, ¶10, 374 Wis. 2d 220, 892 N.W.2d 637.

¶32 The five exhibits Kohn sought to introduce included documents
related to the blood sample test results, the lab report, and maintenance records for
the machine used to perform the blood test. Despite not being allowed to
introduce the exhibits, the trial court informed Kohn he would have an opportunity
to question the analyst about the test results, lab reports, and maintenance
procedures, and the trial transcripts reflect that Kohn did so extensively. Kohn
cross-examined the analyst as to the testing procedures, the test results, the
carryover contamination that occurred during the calibration process, and standard
cleaning and maintenance practices for the machines used to test Kohn’s blood
sample. Kohn also cross-examined the analyst about documents the analyst had

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No. 2020AP2147-CR

actually brought with him to trial, which included many of the documents Kohn
had intended to introduce as exhibits. Although the trial court’s ruling prevented
Kohn from introducing this evidence in a way he believed would more effectively
“bring [the evidence] to life for the jury,” he fully and unquestionably had an
opportunity to extensively cross-examine the analyst regarding the information he
sought to introduce via the excluded exhibits. Accordingly, exclusion of the
exhibits did not violate Kohn’s due process rights.

¶33 In summary, Kohn failed to comply with his discovery obligations as
set forth WIS. STAT. § 971.23(2m)(c) without good cause for doing so, the trial
court did not err in excluding the five exhibits at trial, and the exclusion of those
exhibits did not violate Kohn’s due process right to cross-examination.

C. Denial of Kohn’s motions to dismiss and for judgment notwithstanding
the verdict was not erroneous.

¶34 Kohn’s final two arguments—that the trial court erred in denying his
motions to dismiss and for judgment notwithstanding the verdict as to the bail-
jumping charge—are based on the underlying premise that despite having been
found guilty of OWI and PAC second offenses for his November 30, 2018
conduct, he nevertheless did not commit a “crime” on that date for purposes of the
bail-jumping charge. This is so, he says, because at the time he engaged in the
November 30 conduct that resulted in the criminal conviction for second offense
OWI and PAC, he had not yet been convicted of an OWI first offense and
therefore could not have had the requisite intent to commit a crime required to
support a charge for bail jumping. This court is unpersuaded.

¶35 To resolve Kohn’s appeal of the trial court’s denial of his motions to
dismiss and for judgment notwithstanding the verdict, this court must first

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No. 2020AP2147-CR

determine whether Kohn’s conduct on November 30, 2018, is considered a
“crime” for purposes of the bail-jumping charge. Answering this question requires
interpretation and application of statutory law to known facts, which we undertake
independently of the trial court. City of Cedarburg v. Hansen, 2020 WI 11, ¶12,
390 Wis. 2d 109, 938 N.W.2d 463.

¶36 The State charged Kohn with misdemeanor bail jumping pursuant to
WIS. STAT. §§ 946.49(1)(a) and 939.51(3)(a) based on his having been charged
with OWI and PAC second offenses after having been released on bail/bond with
a condition that he not commit any additional crimes. Three elements must be
satisfied to support a bail-jumping conviction: “(1) the individual must have been
arrested for, or charged with, a felony or misdemeanor; (2) the individual must be
released from custody on bond; and (3) the individual must have intentionally
failed to comply with the terms of his or her bond.” State v. Hansford, 219
Wis. 2d 226, 244, 580 N.W.2d 171 (1998); see also WIS JI—CRIMINAL 1795.
Kohn does not dispute that he was charged with a misdemeanor on November 26,
2018, or that he was released from custody on bail/bond that same day. Rather, he
challenges only the third element—that he did not fail to comply with the
bail/bond terms—and that is where this court focuses its attention.

¶37 Kohn’s bail/bond conditions required that he “not commit any
crime.” See also WIS. STAT. § 969.02(4) (“As a condition of release in all cases, a
person released under this section shall not commit any crime.”).
Section 969.02(4) does not define what constitutes a “crime”; however, we
answered this question in State v. West, 181 Wis. 2d 792, 512 N.W.2d 207 (Ct.

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No. 2020AP2147-CR

App. 1993).12 There, we determined WIS. STAT. § 939.12, which defines “crime”
as “conduct which is prohibited by state law and punishable by fine or
imprisonment or both. Conduct punishable only by a forfeiture is not a crime[,]”
applies only to WIS. STAT. chs. 939 to 948 and 951. West, 181 Wis. 2d at 796.
West turned to the common dictionary definition of “crime” and determined that
within the context of bond conditions, “crime” means “an offense against the
social order … that is dealt with by community action rather than by an individual
or kinship group.” Id. (quoting WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 536 (unabr. ed. 1976)). “Crime” is therefore defined more broadly
for purposes of § 969.02(4).

¶38 Having defined what constitutes a “crime” within the context of
WIS. STAT. § 969.02(4), this court next determines whether Kohn’s conduct
underlying the bail-jumping charge was criminal in nature. This court concludes
that it was.

¶39 The State alleged Kohn violated the “shall not commit any crime”
condition on November 30, 2018, when he was arrested for OWI/PAC. Kohn’s
conduct that resulted in arrest—driving a vehicle after consuming intoxicants—
falls within West’s definition of “crime,” as it can be characterized as “an offense
against the social order.” Specifically, when Kohn chose to drive a motor vehicle
after consuming an intoxicant, he subjected other members of the community to

12
State v. West, 181 Wis. 2d 792, 512 N.W.2d 207 (Ct. App. 1993), involved
interpretation of WIS. STAT. § 969.03, which governs release of defendants charged with felonies,
whereas WIS. STAT. § 969.02, the statute at issue here, applies to release of defendants charged
with misdemeanors. Both statutes contain the same language regarding a prohibition against
committing further crimes: “As a condition of release in all cases, a person released under this
section shall not commit any crime.” See §§ 969.02(4), 969.03(2).

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No. 2020AP2147-CR

potential harm—and he did so just days after having been cited for similar conduct
and after having agreed to bail/bond conditions prohibiting him from committing
any crimes. Conduct of this nature is in stark contrast to one of the explicit
requirements for bail/bond conditions—namely, that the conditions “protect
members of the community from serious bodily harm[.]” WIS. STAT. § 969.01(1).

¶40 Wisconsin’s progressive penalty structure for OWI offenses supports
the conclusion that Kohn’s November 30, 2018 conduct was criminal in nature for
the purpose of WIS. STAT. § 969.02(4). In Wisconsin, “a first offense is deemed to
be a civil, not a criminal offense[;]” however, subsequent violations trigger
criminal penalties, and those penalties increase as the number of prior OWI-related
convictions increase. State v. Braunschweig, 2018 WI 113, ¶15, 384 Wis. 2d 742,
921 N.W.2d 199 (citing WIS. STAT. § 346.65(2)(am) (2015-16)); see also WIS.
STAT. § 343.307(1). Under this framework, and depending on how quickly a case
is resolved, it is not uncommon for an individual to be charged with violating WIS.
STAT. § 346.65(2)(am) while charges for prior violations remain pending. See,
e.g., State v. Kollross, 2019 WI App 30, ¶¶2-4, 388 Wis. 2d 135, 931 N.W.2d 263;
State v. Matke, 2005 WI App 4, ¶¶1-3, 278 Wis. 2d 403, 692 N.W.2d 265 (2004).
While the charge “level” may often match the chronological order of offenses—
for example, a first violation charged as a first offense, a second violation charged
as a second offense, and so on—this is not always the case. Rather, in some
instances, a later charge may be resolved prior to an earlier charge, with the result
being that conduct occurring first chronologically may ultimately be penalized
more harshly than later conduct. See, e.g., Matke, 278 Wis. 2d 403, ¶3; see also
State v. Banks, 105 Wis. 2d 32, 48, 313 N.W.2d 67 (1981) (explaining that
penalties for repeated OWI offenses are applied “regardless of the sequence of

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No. 2020AP2147-CR

offenses”). The order in which OWI charges are resolved therefore determines the
extent and severity of the penalty for the related conduct.

¶41 Here, Kohn’s November 25, 2018 OWI first citation had not yet
been resolved as of November 30, 2018, when he was again arrested and cited for
OWI and PAC. The pendency of the earlier matter, however, does not alter the
fact that under Wisconsin’s progressive OWI penalty structure, a subsequent OWI
or PAC violation could result in criminal charges. This was sufficient to place
Kohn on notice that although resolution of the earlier OWI citation remained
pending as of November 30, 2018, a subsequent OWI violation could result in
criminal charges and therefore subject him to a charge that he violated his bond
conditions. See Byrne v. State, 12 Wis. 577, [*519], 580, [*521] (1860)
(“[D]efendants are presumed to know the law, and ignorance of the law, even if
proved, would be no excuse.”).

¶42 Based on the foregoing, Kohn’s November 30, 2018 conduct that
resulted in the OWI and PAC charges falls within the definition of “crime” as used
in WIS. STAT. § 969.02(4), and the State therefore did not impermissibly charge
Kohn with misdemeanor bail jumping stemming from that incident.

1. Motion to dismiss

¶43 “The test of the sufficiency of the evidence on a motion to dismiss
… is whether, considering the state’s evidence in the most favorable light, the
evidence adduced, believed and rationally considered, is sufficient to prove the
defendant’s guilty beyond a reasonable doubt.” State v. Scott, 2000 WI App 51,
¶12, 234 Wis. 2d 129, 608 N.W.2d 753 (quoting State v. Duda, 60 Wis. 2d 431,
439, 210 N.W.2d 763 (1973)). “[W]e will not reverse a trial court’s denial of a
motion to dismiss as long as the jury, viewing the evidence in the light most

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No. 2020AP2147-CR

favorable to the State’s theory, reasonably could have found the defendant guilty
beyond a reasonable doubt.” Scott, 234 Wis. 2d 129, ¶12.

¶44 At trial, the jury heard testimony regarding the November 25, 2018
traffic stop, that Kohn was charged with misdemeanors arising out of that traffic
stop, that Kohn agreed to the bail/bond conditions put in place when he was
released from custody on November 26, 2018, and that Kohn drove a vehicle
while intoxicated and with a PAC on November 30, 2018. Based on the testimony
presented at trial, the jury could reasonably conclude Kohn violated the terms of
his bail/bond conditions. There was sufficient evidence from which the jury could
find Kohn guilty of bail jumping, and accordingly, the trial court did not err in
denying his motion to dismiss.

2. Motion for judgment notwithstanding the verdict

¶45 This court’s review of a denial of a motion for judgment
notwithstanding the verdict is de novo. Fricano v. Bank of America NA, 2016
WI App 11, ¶19, 366 Wis. 2d 748, 875 N.W.2d 143 (2015). A motion for
judgment notwithstanding the verdict does not challenge the sufficiency of the
evidence; rather, “such a motion ‘admits for purposes of the motion that the
findings of the verdict are true, but asserts that judgment should be granted the
moving party on grounds other than those decided by the jury.’” Id. (citation
omitted). A court should enter judgment notwithstanding the verdict “where the
facts found by the jury are not sufficient as a matter of law to constitute a cause of
action.” Management Comput. Servs., Inc. v. Hawkins, Ash, Baptie & Co., 206
Wis. 2d 158, 177, 557 N.W.2d 67 (1996).

¶46 Kohn’s argument that the trial court erred in denying his motion for
judgment not withstanding the verdict as to the bail-jumping charge ultimately

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No. 2020AP2147-CR

depends upon this court resolving the question of whether the State impermissibly
charged him with bail jumping in his favor. This court resolved that issue against
Kohn, and therefore concludes the trial court did not err in denying the motion for
judgment notwithstanding the verdict. Under the circumstances presented here,
Kohn’s conduct on November 30, 2018, can be construed as criminal in nature for
the reasons set forth above, and based on the jury’s verdict, the jury found Kohn
had been charged with a misdemeanor, that he had been released on bond and was
aware of those terms, and that he knowingly violated the terms of those conditions
by committing a crime on November 30, 2018.

III. CONCLUSION

¶47 Kohn voluntarily consented to the blood draw stemming from his
November 30, 2018 arrest, and therefore the trial court did not err in denying his
motion to suppress. Kohn failed to produce responsive documents to the State’s
WIS. STAT. § 971.23(2m)(c) discovery requests and failed to establish any good
cause for his failure, and therefore the trial court did not err in excluding Kohn’s
exhibits during trial. Kohn was allowed full cross-examination of the witness he
intended to use the excluded exhibits with and therefore was afforded due process.
The State did not impermissibly charge Kohn with bail jumping, and therefore the
trial court did not err in denying Kohn’s motions to dismiss or for judgment
notwithstanding the verdict as to the bail-jumping charge.

By the Court.—Judgment affirmed.

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

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