COURT OF APPEALS

DECISION

DATED AND FILED

April 19, 2023

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2022AP1434 Cir. Ct. No. 2022TR1098

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

WAUKESHA COUNTY,

 PLAINTIFF-RESPONDENT,

 V.

STEPHEN E. LEE,

 DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Waukesha County: 

PAUL F. REILLY, Reserve Judge. Affirmed.

¶1 NEUBAUER, J.1 Stephen E. Lee appeals from a judgment of 

conviction entered after a bench trial at which he was found guilty of speeding in 

violation of a Waukesha County ordinance. Lee raises two primary arguments on 

appeal, neither of which were raised before the trial court. Lee argues that the

County improperly failed to turn over evidence he needed to meaningfully 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2021-22). 

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2022AP1434

2

cross-examine the officer who issued the citation and that the officer committed 

perjury. This court rejects Lee’s arguments and affirms the judgment.

BACKGROUND

¶2 Late in the afternoon of December 12, 2021, Deputy Erik Wickstrom 

of the Waukesha County Sheriff’s Department stopped Lee as he was driving on 

Meadowbrook Road in the City of Waukesha and issued him a citation for 

speeding. Lee pleaded not guilty and asked for a trial to the court, which was held 

on August 4, 2022. 

¶3 Wickstrom was the only witness to testify at trial. After describing 

the training he had received in traffic enforcement, Wickstrom confirmed that he 

was conducting “stationary speed enforcement” on Meadowbrook Road on 

December 12, 2021, where the posted speed limit is thirty-five miles per hour. 

Before starting work that day, Wickstrom activated his radar gun, confirmed that it 

passed a “self-calibration test,” and performed a second test to ensure it functioned 

properly. Shortly before 5:00 p.m., Wickstrom stopped Lee for driving seventeen 

miles per hour above the posted speed limit and issued him a citation.2 Wickstrom 

used the radar gun to determine Lee’s speed while stationed in the left-turn lane on 

Woodridge Lane, which intersects with Meadowbrook Road. 

¶4 On cross-examination, Wickstrom was unable to recall the serial 

number of the radar gun he used that day and testified that he was not required to 

 

2

 Wickstrom cited Lee for violating WAUKESHA COUNTY, WIS. CODE § 15-82 (2014), 

which adopts certain Wisconsin statutes concerning vehicles and traffic, including WIS. STAT.

§ 346.57(5), which prohibits motorists from “driv[ing] a vehicle in excess of any speed limit 

established pursuant to law by state or local authorities and indicated by official signs.” 

Section 15-82 can be found online at https://www.waukeshacounty.gov/globalassets/corporationcounsel/county-code/chapter-15-public-works.pdf.
No. 2022AP1434

3

keep written records concerning the “testing and maintenance” of the gun. In 

addition to the pre-shift tests, Wickstrom testified that he tests the radar gun after a

stop “to ensure I still have accurate results.” None of the tests he ran that day 

indicated any issues with the gun’s accuracy. 

¶5 Lee declined to testify or present any other evidence. The trial court 

heard closing arguments and reviewed and distinguished a case cited by Lee 

pertaining to the use of radar guns when an officer is not stationary. The court

found it was undisputed that Wickstrom was stationary when using the radar gun 

and that he had tested it before his shift and after the stop. The court found Lee 

guilty after concluding that the County had met its burden of proving that the radar 

gun was operating properly by clear, satisfactory, and convincing evidence. See

WIS. STAT. § 345.45. Additional facts relevant to the arguments Lee raises on 

appeal are provided below.

DISCUSSION

¶6 Lee argues first that the County violated his constitutional rights to 

present a complete defense and to confront the witness against him by failing to 

turn over certain records that Lee requested before trial. Lee contends on appeal 

that Deputy Wickstrom was not using a radar gun to conduct stationary traffic 

enforcement along Meadowbrook Road when he stopped Lee, but instead was 

driving on Meadowbrook Road, which would have resulted in a different analysis 

regarding the reliability of the deputy’s speeding determination. He asserts that he 

was denied discovery that would have permitted him to make this argument. He 

also contends that records he obtained pursuant to an open records request to the 

Waukesha County Sheriff’s Department that were not produced until after the trial 

would have supported his argument. 
No. 2022AP1434

4

¶7 Lee’s argument fails for many reasons, each of which independently 

doom his appeal. First, Lee did not raise his records challenge with the trial court, 

which means he cannot raise it on appeal. See State v. Huebner, 2000 WI 59, ¶10, 

235 Wis. 2d 486, 611 N.W.2d 727 (“Issues that are not preserved at the [trial]

court, even alleged constitutional errors, generally will not be considered on 

appeal.”). 

¶8 Furthermore, Lee did not make the records he contends were 

improperly withheld, or the letters relating to his requests for those records, part of 

the record on appeal. His failure to do so also precludes this court from 

considering the merits of his argument. See Choinsky v. Germantown Sch. Dist. 

Bd. of Educ., 2019 WI App 12, ¶34, 386 Wis. 2d 285, 926 N.W.2d 196 (stating 

that court of appeals “will not consider arguments based on facts or documents 

that are unavailable or not referenced in the record”), aff’d sub nom. Choinsky v. 

Employers Ins. Co. of Wausau, 2020 WI 13, 390 Wis. 2d 209, 938 N.W.2d 548. 

Lee included the records and letters in the appendix accompanying his brief, but 

that does not enable this court to review them because the appendix may only 

contain items in the record. See Roy v. St. Lukes Med. Ctr., 2007 WI App 218, 

¶10 n.1, 305 Wis. 2d 658, 741 N.W.2d 256 (stating that court of appeals is 

“limited to matters in the record, and will not consider any materials in an 

appendix that are not in the record”) (citation omitted).

3

¶9 Moreover, even if Lee had raised these issues at trial or in a 

postjudgment motion, his discovery motion was untimely under WIS. STAT.

 

3

 Lee also asserts several facts supporting his challenge on appeal, including that 

Wickstrom was not stationary and that other citations Lee has received included serial numbers. 

No evidence presented at trial tended to show that Wickstrom was not stationary, and Lee did not 

introduce at trial the citations containing serial numbers that he filed with his exhibit list. These 

are not newly discovered facts. This shortcoming also defeats Lee’s challenge.
No. 2022AP1434

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§ 345.421, which bars discovery in traffic violation cases except as to specific 

items requested within ten days after an alleged violation:

Neither party is entitled to pretrial discovery except that if 

the defendant moves within 10 days after the alleged 

violation and shows cause therefor, the court may order that 

the defendant be allowed to inspect and test under [WIS.

STAT. §] 804.09 and under such conditions as the court 

prescribes, any devices used by the plaintiff to determine 

whether a violation has been committed, including without 

limitation, devices used to determine presence of alcohol in 

breath or body fluid or to measure speed, and may inspect 

under [§] 804.09 the reports of experts relating to those 

devices.

Lee was stopped and cited for speeding on December 12, 2021, but did not file his 

motion for discovery until July 21, 2022, months after the ten-day statutory period 

had elapsed. Because Lee did not comply with § 345.421, the County was not 

required to comply with his discovery requests.4

¶10 Lee next argues that Wickstrom gave perjured testimony. Lee 

argues that Wickstrom falsely testified that he was conducting stationary speed 

monitoring on the day he stopped Lee. He contends the following facts suggest 

that Wickstrom testified falsely: (1) the radar gun’s serial number was not on the 

citation; (2) Wickstrom was unable on cross-examination to provide the serial 

number of the radar gun he was using; and (3) Wickstrom confirmed that he did 

not have to “maintain records as far as testing and maintenance on the [gun].” Lee

contends that Wickstrom committed perjury because the County presented no 

evidence to corroborate his testimony that he was conducting stationary speed 

enforcement when he stopped Lee. 

 

4

 Additionally, even if Lee had timely filed his motion, this court notes that he would 

have been entitled only to “inspect and test” the radar gun and any expert reports related to it. See 

WIS. STAT. § 345.421.
No. 2022AP1434

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¶11 In effect, Lee’s challenge is to the sufficiency of the evidence to 

sustain the conviction. The County’s burden was to prove that Lee was speeding 

by clear, satisfactory, and convincing evidence. See WIS. STAT. § 345.45. When 

reviewing “the sufficiency of the evidence,” this court uses “a highly deferential 

standard of review.” Jacobson v. American Tool Cos., 222 Wis. 2d 384, 389, 588 

N.W.2d 67 (Ct. App. 1998). This court does not set aside the trial court’s findings 

of fact unless they are clearly erroneous. WIS. STAT. § 805.17(2). In other words, 

the court’s findings will be affirmed unless the great weight and clear 

preponderance of the evidence support a contrary finding. See Noll v. Dimiceli’s,

Inc., 115 Wis. 2d 641, 643-44, 340 N.W.2d 575 (Ct. App. 1983). 

¶12 Here, the trial court correctly noted that Wickstrom’s testimony that 

he was stationary when using the radar gun and that he had properly tested the 

equipment was undisputed. In addition, the radar gun’s measurement of Lee’s 

speed “carr[ies] a prima facie presumption of accuracy” that Lee has not rebutted. 

See State v. Trailer Serv., Inc., 61 Wis. 2d 400, 408, 212 N.W.2d 683 (1973). 

Because there is credible evidence to sustain the court’s findings, this court must 

accept them and affirm. See Jacobson, 222 Wis. 2d at 390. 

¶13 Lee’s contention that the trial court’s factual findings were clearly 

erroneous is wholly without merit. His arguments focus on the lack of certain 

evidence to corroborate Wickstrom’s testimony, but the mere absence of 

corroboration does not establish that testimony is false. Wickstrom’s inability to 

recall the serial number of the radar gun he used on the day in question does not 

establish that he was not monitoring speed in a stationary position when he 

stopped Lee. Indeed, it is not surprising that a police officer would be unable to 

recall the serial number on a radar gun used during a traffic stop that occurred 

nearly eight months before trial. Nor does the absence of the gun’s serial number 
No. 2022AP1434

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on the citation establish that Wickstrom testified falsely. Lee points to no 

department policy or other evidence in the record tending to show that the serial 

number of a radar gun used to detect a speeding violation always appears on the 

citation. This court accepts the court’s factual findings that support its conclusion 

that Lee violated the speeding ordinance.5

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)4.

 

5

 Lee also asserts in his reply brief that the circuit court “had no jurisdiction to make 

factual findings or assess the credibility of witnesses” at trial. This argument appears to stem 

from the fact that Wickstrom issued Lee a citation for speeding in violation of a City of Pewaukee 

ordinance which was later dismissed and reissued as the citation at issue in this case. Lee argues 

that the Waukesha County Sheriff’s Department lacked jurisdiction to dismiss and reissue the 

citation. Lee cites no legal authority to support this argument, so this court declines to consider it. 

See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (declining to consider 

arguments unsupported by references to legal authority).