DECISION

DATED AND FILED

March 22, 2011

A. John Voelker

Acting Clerk of Court of Appeals

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. 2010AP1050-CR Cir. Ct. No. 2009CF48

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OFWISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KENNETH L. DRIESSEN,

DEFENDANT-APPELLANT.

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

ROBERT E. EATON, Judge. Affirmed.

Before Hoover, P.J., Peterson and Brunner, JJ.

¶1 PER CURIAM. Kenneth Driessen, pro se, appeals a judgment of

conviction for possession of marijuana, second and subsequent offense; possession

of drug paraphernalia; and operating while intoxicated, second offense. Driessen

argues the circuit court erroneously denied his pretrial suppression motion. He

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further contends it is unconstitutional to criminalize marijuana possession, for

various reasons. We reject Driessen’s arguments and affirm.

BACKGROUND

¶2 Deputy Brian Knapp observed a truck that had a loud exhaust and

appeared to be speeding. Knapp followed. As Knapp activated his emergency

lights and sirens, he observed the truck driving on the wrong side of the road.

During the stop, Knapp found marijuana and a brass smoking pipe on Driessen’s

person. Driessen was ultimately arrested for operating while intoxicated.

¶3 Driessen, proceeding pro se, moved to suppress evidence found

during the stop. The circuit court denied the motion after an evidentiary hearing.

Driessen was found guilty at a jury trial. Driessen moved for postconviction

relief, again challenging the search and seizure. After a hearing, the court denied

the motion in a written order “for the reasons set forth on the record at the time of

the hearing.” Driessen now appeals.

DISCUSSION

¶4 Driessen first challenges the stop of his vehicle and a pat-down

search of his person prior to arrest. The record on appeal does not contain a

transcript of either the pretrial or postconviction motion hearings dealing with

Driessen’s Fourth Amendment challenges.1

1 Driessen asks us to compare a police report with an audio recording of an officer’s

testimony, which Driessen apparently recorded and posted online at blip.tv and youtube.com.

Our review is limited to the record on appeal. See WIS. STAT. RULES 809.15, 809.19(1)(d)-(e).

All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise

noted.

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¶5 This court reviews a circuit court’s determination of whether a

person was seized under the Fourth Amendment as a constitutional fact. State v.

Young, 2006 WI 98, ¶17, 294 Wis. 2d 1, 717 N.W.2d 729. We accept the circuit

court’s findings of evidentiary or historic fact unless clearly erroneous. Id.

However, we independently determine whether or when a seizure occurred. Id.

¶6 Driessen challenges the factual findings underlying the circuit

court’s decision to deny his suppression motion. In the absence of transcripts, his

argument fails. “It is the appellant’s burden to ensure that the record is sufficient

to address the issues raised on appeal.” Lee v. LIRC, 202 Wis. 2d 558, 560 n.1,

550 N.W.2d 449 (Ct. App. 1996). When the record is incomplete, we will assume

the missing material supports the circuit court ruling under attack. See State v.

Holmgren, 229 Wis. 2d 358, 362 n.2, 599 N.W.2d 876 (Ct. App. 1999).

¶7 We next turn to Driessen’s challenge to the constitutionality of

marijuana possession laws. In the circuit court, Driessen filed a “Notice of Claim

of Unconstitutionality” arguing the criminalization of marijuana violated multiple

constitutional rights because: 40.6% of Americans have used marijuana; people

have an inherent right to the control of their minds and bodies; he holds a religious

belief regarding marijuana use; potential jurors who have used marijuana would be

too fearful to appear for his trial; and marijuana has proper medical uses. Driessen

subsequently filed a nineteen-page motion to dismiss, challenging the

constitutionality of WIS. STAT. §§ 961.41(3g)(e) and 961.573(1), further

developing the issues raised earlier. It is unclear from Driessen’s brief whether the

court took any action regarding Driessen’s filings.

¶8 First, we address Driessen’s argument that the laws prohibiting

marijuana possession violate his First Amendment rights. We apply the

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“compelling state interest/least restrictive alternative test” when reviewing a claim

that a state statute violates freedom of exercise and freedom of conscience. State

v. Miller, 202 Wis. 2d 56, 66, 549 N.W.2d 235 (1996). The challenger carries the

burden to prove he has a sincerely held religious belief that is burdened by

application of the state law at issue. Id. Only if the defendant meets this burden

does the burden shift to the State to prove the law is based on a compelling state

interest, which cannot be served by a less restrictive alternative. Id.

¶9 Driessen fails to demonstrate he has a sincerely held religious belief

that is burdened by the application of the state law criminalizing marijuana

possession. See id. Rather, he merely states in his brief that he “believe[s]

cannabis use to be an important part of [his] religious and spiritual experiences,”

and offers to attend a hearing to express his sincerity in further detail. Driessen

fails to inform us whether the circuit court made the factual determination that

Driessen does or does not hold such a belief. In the absence of transcripts or

citation to the record, Driessen’s claim fails. See Holmgren, 229 Wis. 2d at 362

n.2; Grothe v. Valley Coatings, Inc., 2000 WI App 240, ¶6, 239 Wis. 2d 406, 620

N.W.2d 463 (citing WIS. STAT. RULE 809.19(1)(e)).

¶10 Moreover, even if we were to shift the burden to the State to prove

the law is based on a compelling state interest that cannot be served by a less

restrictive alternative, Driessen’s claim fails. We have previously held that

because marijuana causes serious problems for society, there is a compelling state

interest that overrides the First Amendment interest in using marijuana for

religious purposes. See State v. Peck, 143 Wis. 2d 624, 634-35, 422 N.W.2d 160

(Ct. App. 1988).

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¶11 Driessen next argues there is or should be a medical necessity

defense to possession of marijuana and that its omission leads to cruel and unusual

punishment under the Eighth Amendment. Driessen states he has depression, and

provides an internet citation to show that a psychologist has concluded marijuana

is safe and effective for treating depression. Driessen does not assert, however,

that any medical doctor has determined Driessen should use marijuana for

medicinal purposes or that he has a prescription for such use. Nor does Driessen

assert he requested a jury instruction on necessity based on WIS. STAT. § 939.47.

We therefore decline to address his argument, as it is inadequately developed. See

State v. Flynn, 190 Wis. 2d 31, 39 n.2, 527 N.W.2d 343 (Ct. App. 1994).

¶12 Driessen next asserts “unconstitutionality due to overwhelming

popularity of use.” While he cites various cases and constitutional provisions,

Driessen fails to develop a proper legal argument in support of this claim. We

therefore decline to address his argument. See id.

¶13 Finally, Driessen argues he should have been charged with

ordinance violations rather than statutory criminal violations. Driessen’s argument

is largely incomprehensible. See id. Regardless, the State has great discretion in

deciding whether to prosecute a particular case. State v. Kramer, 2001 WI 132,

¶14, 248 Wis. 2d 1009, 637 N.W.2d 35. In order to exercise this discretion, a

prosecutor employs a degree of selectivity. Id. A defendant must make a prima

facie showing of discriminatory prosecution before he or she is entitled to an

evidentiary hearing on the claim. Id., ¶13. Driessen fails to make such a showing.

By the Court.—Judgment affirmed.

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

809.23(1)(b)5.