Dodge County v. Cynthia M. Blandin

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.
August 19, 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. 2021AP251 Cir. Ct. No. 2020TR1774

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

DODGE COUNTY,

PLAINTIFF-RESPONDENT,

V.

CYNTHIA M. BLANDIN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Dodge County: MARTIN J. DeVRIES, Judge. Affirmed.

¶1 BLANCHARD, P.J.1 A motorist violates WIS. STAT. § 346.13(1)
by making an unsafe lane deviation and Dodge County has adopted this statute as

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2021AP251

an ordinance. Cynthia Blandin was ticketed in Dodge County for allegedly
violating this traffic regulation. She was convicted at a bench trial. She appeals
the judgment of conviction, as well as the circuit court’s denial of her motion for
judgment notwithstanding the verdict or alternatively for a new trial. Blandin
argues that the court committed clear error in making findings that credited some
testimony over other testimony, and that proper findings would have revealed that
the County failed to establish clear, satisfactory, and convincing evidence of her
guilt. In the alternative, Blandin argues that the court erred in denying a post-
judgment motion in which she asserted that she had taken the steps necessary to
trigger the need for a jury trial. I affirm the judgment and order of the court.

¶2 The County issued Blandin a citation for a violation of Dodge
County Ordinance § 7.01 (Aug. 9, 2021), which adopts WIS. STAT. § 346.13(1),
for making an unsafe lane deviation.2 The County alleged that she veered into a
semi-truck and trailer while moving from one lane to another on a highway with
two lanes traveling in the same direction.

¶3 Blandin entered a plea of not guilty and paid the $36 fee for a jury
trial, but as discussed below there is no record that she submitted a written demand
for a jury trial. See WIS. STAT. § 345.43(1) (if a party pays the jury fee prescribed
in WIS. STAT. § 814.61(4) and enters a written demand for a jury trial after
pleading guilty, the court shall schedule the case for a jury trial).

2
WISCONSIN STAT. § 346.13(1) provides that “the operator of a vehicle shall drive as
nearly as practicable entirely within a single lane and shall not deviate from the traffic lane in
which the operator is driving without first ascertaining that such movement can be made with
safety to other vehicles approaching from the rear.” Blandin does not argue that the circuit court
improperly construed the meaning of the phrase “with safety to other vehicles approaching from
the rear.”

2
No. 2021AP251

¶4 A little over three months later, the circuit court held a bench trial.
Blandin, represented by counsel, participated in the bench trial without making an
objection that she had requested or was requesting a jury trial. Witnesses at trial
were Blandin, her daughter, Erickson, a sheriff’s deputy, and a sheriff’s lieutenant.

¶5 It was undisputed at trial that Blandin was driving a car, with her
daughter as a passenger, southbound on US Highway 41 in the left lane when she
came upon traffic cones arranged to gradually close the left lane. At the same
time, also driving southbound on 41, but in the right lane, was Adam Erickson in a
semi-truck and trailer. As both vehicles approached the point at which the left
lane was completely closed off by the cones, the two vehicles collided in a manner
that is itself disputed. As a result of the collision, Blandin’s car ended up in the
closed left lane (having struck a “closed lane” sign). Erickson’s truck came to a
stop further down the highway. After an investigation on the scene by two
sheriff’s deputies, Blandin was cited for unsafe lane deviation.

¶6 Blandin’s trial testimony was that she moved a safe distance ahead
of Erickson’s truck while she was still in the left lane and only then merged to the
right. In contrast, Erickson testified that Blandin attempted to move into the right
lane before her car was past the front of the truck’s tractor unit.

¶7 The circuit court found Blandin guilty of violating WIS. STAT.
§ 346.13(1) and entered the judgment of conviction on August 19, 2020.

¶8 On September 1, 2020, Blandin filed a motion for judgment
notwithstanding the verdict or in the alternative for a new trial. On October 8,
2020, the County filed a response to the motion and both parties made the same
arguments to the circuit court that they now make on appeal.

3
No. 2021AP251

¶9 On December 23, 2020, the circuit court denied Blandin’s motion in
its entirety. The court concluded that the evidence of guilt presented at trial was
clear, satisfactory, and convincing. The court also concluded that Blandin’s post-
judgment motion, whether construed as a motion for judgment notwithstanding the
verdict or as a motion to reconsider, failed to undermine determinations that the
court made at trial. In response to Blandin’s argument that she was entitled to a
jury trial, the court found that there was nothing in the record to show that Blandin
filed a written demand to trigger the need for a jury trial, under the requirements in
WIS. STAT. § 345.43(1). On February 4, 2021, Blandin filed a notice of appeal of
the judgment of conviction and denial of her post-judgment motion.

¶10 I begin by addressing, and rejecting, the County’s argument that this
court lacks jurisdiction to consider Blandin’s appeal under WIS. STAT. § 808.04
because she filed the notice of appeal on February 4, 2021, which was over 90
days after the circuit court entered the judgment of conviction. This argument is
undeveloped for at least the reason that the County fails to address whether
Blandin’s post-judgment motion could properly be considered a motion to
reconsider, which would extend the time she had to appeal, even though it was
labeled as a motion for judgment notwithstanding the verdict. See Orlando
Residence, Ltd. v. Nelson, 2013 WI App 81, ¶18, 348 Wis. 2d 565, 834 N.W.2d
416 (determining jurisdiction based on the substantive content of a motion, not
based on its label). A motion for judgment notwithstanding the verdict does not
challenge the sufficiency of evidence to support the verdict but instead “‘admits
for purposes of the motion that the findings of the verdict are true, but asserts that
judgment should be granted [to] the moving party on grounds other than those
decided by the jury.’” Fricano v. Bank of Am. NA, 2016 WI App 11, ¶19, 366
Wis. 2d 748, 875 N.W.2d 143 (quoted source omitted); see also WIS. STAT.

4
No. 2021AP251

§ 805.14(5)(b). In contrast, Blandin’s motion essentially asked the court to
reconsider specific findings and conclusions it reached at trial. See WIS. STAT.
§ 805.17(3) (When a motion to reconsider is filed, “the court may amend its
findings or conclusions or make additional findings or conclusions and may
amend the judgment accordingly.”). The fact that Blandin’s post-judgment motion
substantively amounted to a motion to reconsider is significant here because
§ 805.17(3) extends the deadline to appeal until after the circuit court rules on a
motion to reconsider.3 See Salzman v. DNR, 168 Wis. 2d 523, 528, 484 N.W.2d
337 (Ct. App. 1992) (explaining that under § 805.17(3), “upon the filing of a
motion for reconsideration,” the time to file an appeal “does not begin to run until
the [circuit] court denies the motion on the record” or “the time for consideration
of the motion expires”). Blandin filed the notice of appeal within 90 days after the
denial of her post-judgment motion.

¶11 Turning to Blandin’s arguments on appeal, she contends that the
judgment was not supported by clear, satisfactory, and convincing evidence of
guilt. See WIS. STAT. § 345.45 (standard of proof for conviction of a violation of a
traffic regulation). Boiled down, her argument is that the circuit court committed
clear error in finding the material testimony of Erickson to be more credible than
the material testimony of Blandin and of her daughter, and that findings that
properly credited the latter witnesses’ testimony would have compelled a ruling
that she was not guilty.

3
The appeal deadline is extended if the motion to reconsider is made no later than 20
days after entry of judgment. See WIS. STAT. § 805.17(3) (A party has 20 days after entry of
judgment to file a motion to reconsider and the time for initiating appeal begins once the motion
is granted or denied). Blandin filed her motion within 20 days after entry of judgment.

5
No. 2021AP251

¶12 Regardless of whether Blandin’s post-judgment motion is properly
understood as a motion under WIS. STAT. § 805.14 or WIS. STAT. § 805.17, I
review the circuit court’s findings of fact under the clearly erroneous standard. 4 A
reviewing court will upset a circuit court’s findings of fact only if the findings are
“‘contrary to the great weight and clear preponderance of the evidence.’” State v.
Popke, 2009 WI 37, ¶20, 317 Wis. 2d 118, 765 N.W.2d 569 (quoted source
omitted). And, as Blandin appropriately acknowledges, issues regarding the
weight of testimony or the credibility of witnesses are to be determined by the trier
of fact and “their determination will not be disturbed where more than one
reasonable inference can be drawn from credible evidence.” Johnson v. Merta,
95 Wis. 2d 141, 151, 289 N.W.2d 813 (1980). Applying these standards, I
conclude that there was adequate evidence from which the court could determine
that the County met its burden of proof.

¶13 The following is additional pertinent background from trial. Blandin
testified to the following. She passed Erickson’s truck while she was in the left
lane and then safely merged into the right lane in front of him. At the time of her
lane change, she was at least 1500 feet (the equivalent of five football fields,
excluding end zones) away from the point of complete lane closure. Immediately

4
As noted, Blandin filed a post-judgment motion for judgment notwithstanding the
verdict under WIS. STAT. § 805.14(5)(b), even though her argument was in substance a motion for
reconsideration under WIS. STAT. § 805.17(3). See K & S Tool & Die Corp. v. Perfection Mach.
Sales, Inc., 2007 WI 70, ¶29, 301 Wis. 2d 109, 732 N.W.2d 792 (“Appellate courts overturn only
a clearly erroneous denial of a motion challenging the sufficiency of the evidence.”); see also
§ 805.14(1) (“No motion challenging the sufficiency of the evidence as a matter of law to support
a verdict, or an answer in a verdict, shall be granted unless the court is satisfied that, considering
all credible evidence and reasonable inferences therefrom in the light most favorable to the party
against whom the motion is made, there is no credible evidence to sustain a finding in favor of
such party.”). Regarding a motion to reconsider a circuit court’s rulings after a trial to the court,
“[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to
the opportunity of the trial court to judge the credibility of the witnesses.” Sec. 805.17(2).

6
No. 2021AP251

after her lane change, Erickson’s truck was in the center of the right lane behind
her. Blandin did not cut him off. Then, a truck in front of her began to brake,
forcing her to brake. At that point, Erickson’s tractor unit struck her car from
behind. Blandin’s daughter testified that their car remained in front of Erickson’s
truck for “more than thirty seconds” after Blandin’s lane change and before the
collision.

¶14 Erickson’s testimony was quite different. He was driving in the
right lane. Blandin was in the left lane. The left lane was gradually closing and
Blandin drew close to Erickson’s truck in the adjoining lane. This caused
Erickson to move from the middle of the right lane to straddle the right shoulder.
Erickson hoped that this maneuver would give Blandin sufficient room to “tuck in
behind” his trailer so that she could proceed safely behind him in the right lane.
While Erickson was straddling the shoulder, Blandin veered into his tractor unit.
This collision sent Blandin’s car into the closed left lane. The tractor unit’s initial
impact to Blandin’s car occurred near the front of the passenger-side door (not to
the rear of her car, as Blandin testified).

¶15 Erickson’s testimony was supported by the testimony of one of the
officers who responded to the collision, Deputy Nehls. Based on his interviews
and review of the evidence, Nehls testified to the conclusion that Blandin deviated
from her lane without first ascertaining that it was safe to do so, moving into the
right lane and colliding with the front left side of the tractor unit. Nehls testified
that, if the collision occurred as Blandin testified, then the damage to her car
would have been “centralized” on its rear.

¶16 This evidence easily provided a reasonable basis for the circuit court,
as the “‘ultimate arbiter of the credibility of a witness,’” to infer that Erickson was

7
No. 2021AP251

credible, and also provided a reasonable basis to infer that Blandin unsafely
deviated from her lane. See Merta, 95 Wis. 2d at 152 (quoted source omitted).
Further, Blandin fails to present a persuasive argument that the court could not
reasonably infer that Blandin unsafely deviated from her lane. I now explain why
I reject Blandin’s additional arguments to the contrary.

¶17 Blandin asserts that the testimony of Lieutenant Robbie Weinfurter
corroborated her testimony. Weinfurter testified that he reviewed the collision-
scene photographs, the crash report, and witness statements. Blandin specifically
contends that Weinfurter testified that the particular damage noted on the
passenger side of her car showed that the collision occurred when the tractor unit
struck the rear of the car while moving faster than the car. But this misstates
Weinfurter’s testimony. He opined that, while this damage indicated that
Blandin’s car was hit on the passenger side by the force of an object moving from
the rear of the car toward its front, this could have resulted from the lug nuts on
the wheels of Erickson’s truck rotating forward while the two vehicles were next
to each other during the collision. Weinfurter further testified to the conclusion
that the damage to Blandin’s car and its final resting place resulted from Blandin
veering into Erickson’s truck. More specifically, he testified that, if Erickson
struck Blandin’s car from the rear at full speed, her car would have “spun out and
likely ended up in the median,” which did not occur.5 Weinfurter made a similar

5
In a collateral argument, Blandin contends that the court should not have relied on
Weinfurter’s testimony because it was based in part on his review of a crash report that he
acknowledged to be a “rough description” of the events. I reject this argument on the ground that
the record indicates that Blandin failed to make a specific objection in the circuit court to
Weinfurter basing part of his opinion on his review of the report. I discern no good reason that
would justify allowing Blandin to pursue this argument on appeal, given her failure to preserve it
at trial. See State ex rel. Zignego v. WEC, 2021 WI 32, ¶33, 396 Wis. 2d 391, 957 N.W.2d 208
(Arguments not raised in the circuit court are normally not considered on appeal.).

8
No. 2021AP251

point in testifying that, if the events occurred as reflected in a diagram of the
collision made by Blandin, which purported to show Erickson’s truck striking the
rear of Blandin’s car, the collision would have resulted in her car going into a
“counterclockwise spin and [it] most likely [would have] end[ed] up on the
shoulder or further ahead in the lane of travel” than it did.

¶18 Blandin asserts that Erickson was “inconsistent” in his testimony
because he testified both that Blandin’s car veered into his truck and also that “at
least part” of Blandin’s car was ahead of Erickson’s truck while they were side-
by-side just before and at the time of the collision. Blandin appears to think that
this supports her assertion that her car was entirely ahead of Erickson’s truck
before she began to merge into the right lane. However, I discern no
inconsistency. If the first point of collision to Blandin’s car occurred near the
front of the passenger-side door, as Erickson testified, then at least part of the car
could have been out ahead of Erickson’s truck while the two vehicles were close
to driving side-by-side.

¶19 Blandin also argues that Erickson’s testimony was not credible
because it was undisputed at trial that none of the traffic cones north of the
collision site that blocked the left lane were knocked over as a result of the
collision of the two southbound vehicles. Blandin contends that Nehls agreed in
his testimony that Blandin had to have been “completely” in the right lane to avoid
hitting the cones. This misrepresents Nehls’s testimony. Nehls testified that, as
the cones gradually closed the left lane, Blandin’s car could have been “partially”
in the left lane as she merged to the right because the arrangement of the cones had
not yet fully closed the left lane. Counsel for Blandin showed Nehls a photo of the
left lane after the point at which the cones fully closed the left lane, and it was at
this point that Nehls testified that Blandin would have needed to have been

9
No. 2021AP251

“completely” in the right lane to avoid hitting cones. I reject this argument for at
least the reason that Blandin fails to identify physical evidence that contradicts
Erickson’s testimony, as summarized above, which was to the effect that Blandin
straddled lanes and only then moved more fully to the right to collide with the
tractor unit.

¶20 As a separate argument, Blandin contends that the circuit court
improperly denied her the right to a trial by jury, established in our state
constitution and by statute.6 Blandin contends that she fulfilled the statutory
requirements that would have made it mandatory for the circuit court to proceed
with a jury trial, and therefore it was erroneous for the court to deny her post-
judgment motion for a new trial, this time with a jury.

¶21 As noted, WIS. STAT. § 345.43(1) provides that jury trials are
required in civil traffic cases as long as either party files a written demand within
10 days after the defendant enters a not guilty plea and as long as the party pays
the jury fee “immediately” after entering the plea. See also WIS. STAT.
§ 345.425(2) (“If both parties, in a court of record, request a trial by the court or if
neither demands a trial by jury, the right to a trial by jury is waived.”). Because
WIS. CONST. art. 1, § 5 specifically allows for the right to a jury trial to be waived
“in a manner prescribed by law,” that right may be “waived” if either the written
demand is not timely filed or if the jury fee is not immediately paid. See Rao v.
WMA Sec., Inc., 2008 WI 73, ¶22, 310 Wis. 2d 623, 752 N.W.2d 220 (explaining
that a party may “waive” the right to a trial by jury by failing to properly assert the

6
WISCONSIN CONST. art. 1, § 5 provides that, “The right of trial by jury shall remain
inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a
jury trial may be waived by the parties in all cases in the manner prescribed by law.”

10
No. 2021AP251

right, as when the party fails to make a timely jury demand or when the party fails
to timely pay the jury fee).

¶22 On appeal, Blandin cites to her not guilty plea and to the summary of
the circuit court docket as evidence that she submitted a written demand. But, as
the circuit court pointed out, there is nothing in the docket summary or elsewhere
in the record to indicate that Blandin submitted a written demand. The record
reflects only that Blandin entered a not guilty plea and paid the jury fee. Blandin’s
assertion that she filed a written demand for a jury trial in the circuit court is
unsupported.

¶23 For all of these reasons, I affirm the judgment of conviction and the
circuit court’s denial of the motion for judgment notwithstanding the verdict.

By the Court.—Judgment and order affirmed.

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

11