This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Glen Evan DeBerge,




Filed April 3, 2001


Halbrooks, Judge


Dakota County District Court

File No. KX991016



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Christopher A. Grove, Apple Valley City Attorney, 7300 West 147th Street, Suite 600, Apple Valley, MN 55124 (for respondent)


Samuel A. McCloud, Kelly Vince Griffitts, Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for appellant)




            Considered and decided by Lansing, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of driving under the influence of alcohol, contending that the circumstantial evidence was insufficient to support his conviction and that the trial court abused its discretion by refusing to read a portion of the transcript back to the jury.  Because we find sufficient evidence to support the conviction and no trial court error, we affirm. 


On March 13, 1999, appellant Glen Evan DeBerge went out for the evening.  He later testified that he had two alcoholic drinks before eating and one beer with his meal.  Appellant further stated that after grocery shopping, he stopped at a bar to see if a friend was there, but claimed he had nothing to drink after 8:30 p.m.  After leaving the bar around midnight, appellant began driving home.  As appellant made a right turn, he lost control of his car and hit a semaphore.  The weather was clear and dry, there were no obstructions in the road, and the area was lighted.  The impact smashed the driver’s side door and caused both air bags to deploy.

At approximately 12:20 a.m. on March 14, 1999, Apple Valley police officer Todd Soderholm was dispatched to the scene of the accident.  When Soderholm arrived, he found Susannah and Bryan Dye and another couple helping appellant out of the passenger door of his car.  Bryan Dye testified that appellant’s speech was slow and he appeared dazed.  The Dyes both said that appellant smelled strongly of alcohol.    

Once out of the car, appellant “grabbed the passenger door * * * and was kind of swaying.”  His eyes were red, glassy, and bloodshot, and his speech was slurred.  He was so unsteady that he was unable to stand, and Soderholm put him in the squad car to prevent him from falling down.  Soderholm could not perform any field sobriety tests because appellant could not stand on his own.  Soderholm admitted that the indicia of intoxication possibly could have resulted from the impact of the accident and the powder from the airbags.  But Soderholm also testified that, in his opinion, appellant had been drinking.   

Soon paramedics arrived at the scene to examine appellant.  Although appellant later testified that he thought he hit his head on the doorframe, he did not complain of any injuries, and the paramedics found none.  But based on the severity of the accident and the potential for injuries, protocol required that the paramedics transport appellant to the hospital.  In addition, paramedic Rick Connolly testified that because of the strong odor of alcohol from appellant, under state law appellant was incapable of refusing transport.  The paramedics took appellant to St. Paul Regions Hospital.  He was released into Soderholm’s custody the next morning at 6:00 a.m.  Appellant still smelled of alcohol and slurred his speech.

Following a jury trial, appellant was found guilty of one count of driving under the influence of alcohol.  See Minn. Stat. § 169.121, subd. 1(a) (1998).  This appeal follows. 




Appellant contends that all the evidence of his intoxication, with the exception of the odor of alcohol, is consistent with effects of a serious car accident and that the smell of alcohol alone is inadequate to sustain his conviction.  Appellant further argues that because the evidence of his intoxication is circumstantial and equally consistent with guilt or innocence, it is insufficient as a matter of law to support his conviction.  See State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (circumstantial evidence may support a conviction only when it forms a “complete chain” that “leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt” (quotation omitted)).

In considering a claim of insufficient evidence, our review is limited to carefully reviewing the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to have allowed the jury to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court must “assume the jury believed the prosecution’s witnesses and disbelieved any contrary evidence.”  State v. Ashby, 567 N.W.2d 21, 27 (1997).  We recognize that the jury is in the best position to evaluate all the evidence, even circumstantial evidence.  State v. McBroom, 394 N.W.2d 806, 810 (Minn. App. 1986).  We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Although “[a] conviction based on circumstantial evidence merits stricter scrutiny,” it is

entitled to the same weight as any evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.


Bias, 419 N.W.2d at 484 (citation omitted).  Although circumstantial evidence need not exclude every other theory, the theory embraced by the verdict must outweigh any conflicting inferences.  Martelle v. Thompson, 283 Minn. 279, 283, 167 N.W.2d 376, 379 (1969). 

Where the evidence, viewed cumulatively, could sustain with equal justification either of two inconsistent inferences, the proponent of the theory has failed to meet its burden of proof.


Republic Nat’l Life Ins. Co. v. Marquette Bank & Trust Co., 312 Minn. 162, 168, 251 N.W.2d 120, 124 (1977) (citations omitted).  Thus, to succeed in a challenge to a verdict based on circumstantial evidence, a convicted person must point to evidence in the record that is consistent with a rational theory other than guilt.  State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994); State v. Race, 383 N.W.2d 656, 662 (Minn. 1986).

Appellant’s characterization of the evidence as entirely circumstantial is inaccurate.  This court previously has held that observations of witnesses of an appellant’s intoxicated condition can be considered direct evidence of the conditions they observed.  State v. Stokes, 354 N.W.2d 53, 56 (Minn. App. 1984).  All of the witnesses testified to the strong odor of alcohol, appellant’s unsteadiness, and slurred speech.  In addition, Officer Soderholm testified to appellant’s watery and bloodshot eyes and his inability to stand unaided.  Even hours after the accident, appellant demonstrated indicia of intoxication.  Under Stokes, these witness observations are direct evidence.  Id. 

In addition, appellant’s admissions that he had consumed three alcoholic drinks that evening and that he was driving at the time of the accident are also direct evidence.  Id.  Even though appellant testified that he had not consumed alcohol for nearly four hours before the accident, the jury was free to question a defendant’s credibility and had “no obligation to believe a defendant’s story.”  Steinbuch, 514 N.W.2d at 800 (citation omitted).

In addition to the direct evidence, substantial circumstantial evidence also supports the jury’s verdict.  The accident occurred in a lighted intersection, with good driving conditions, and involved no other cars.  See State v. Shepard, 481 N.W.2d 560, 562 (Minn. 1992) (finding a one-vehicle rollover on a straight, “nice” road when driving conditions apparently were normal or dry is “the type of accident ‘that often is explained by the [driver’s] being under the influence of alcohol.’” (quoting State v. Storvick, 428 N.W.2d 55, 60 (Minn. 1988)) (alteration in original)); see also Eggersgluss v. Commissioner of Pub. Safety, 393 N.W.2d 183, 185 (Minn. 1986) (deeming relevant the fact that the accident was a one-car rollover while negotiating a “simple turn” in determining whether the driver was under the influence).  Furthermore, appellant had no apparent injuries from the crash that would explain his behavior.  Viewed cumulatively, even using a stricter level of scrutiny, the evidence in the record outweighs any rational conflicting inferences and supports the jury’s guilty verdict.  Cf. Martelle, 283 Minn. at 183, 167 N.W.2d at 379.

Possibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable.  State v. Anderson, 379 N.W.2d 70, 78 (Minn. 1985).  Therefore, even though it is theoretically possible that appellant’s symptoms of intoxication could have been caused by the accident, given the evidence and testimony in this case, the jury could reasonably have concluded that appellant was guilty of driving under the influence.  See State v. Stark, 363 N.W.2d 53, 55-56 (Minn. 1985) (a driver is under the influence if his capacity to drive is impaired in some way).



During deliberation, the jury asked the trial court if appellant’s blood sugar was within the normal range.  Appellant requested that the court read the portion of paramedic Connolly’s testimony concerning the blood-sugar test to the jury.  The court refused and advised the jury to rely on their memories.  Appellant now argues that the trial court committed reversible error and abused its discretion in refusing to read this testimony to the jury.

The rules of criminal procedure provide that when a deliberating jury asks to review testimony, “[t]he court, after notice to the prosecutor and defense counsel, may have the requested parts of the testimony read to the jury.”  Minn. R. Crim. P. 26.03, subd. 19(2).  But the trial court has broad discretion in handling these requests.  State v. Kraushaar, 470 N.W.2d 509, 514 (Minn. 1991). 

The Minnesota Supreme Court has found an abuse of discretion under this rule only once.  State v. Spaulding, 296 N.W.2d 870, 877-78 (Minn. 1980).  In Spaulding, the judge issued a blanket refusal to any jury request to rehear testimony.  When the jury asked to read a portion of the defendant’s testimony, the judge did not attempt to narrow the request; rather, he categorically refused to honor any requests for reading evidence.  Id. at 878.  The supreme court held that this refusal was an abuse of discretion because the defendant’s testimony related to the issue of self-defense which went to the “core of the case,” and moreover, it was “clear from the record that the jury needed assistance.”  Id.    

Here, appellant wanted Connolly’s testimony on the blood-sugar testing read to the jury to support his claim that he was not intoxicated at the time of the accident.  When asked about the litany of tests given to appellant, Connolly explained the blood-sugar test as follows:     

[w]e also assessed the blood sugar level.  Someone with  low blood sugar would exhibit some types of symptoms or (sic) head injury or being under the influence of alcohol.  In this case blood sugar was 118.  Normal is 60 to 120. 


Appellant’s counsel argued in closing that a person under the influence of alcohol would have low blood sugar and that because appellant’s blood sugar was within the normal range, he could not be intoxicated.  He now argues that failing to read this testimony upon a jury request was reversible error. 

            Appellant’s characterization of Connolly’s testimony is not accurate.  Counsel for respondent asked Connolly whether there could be physiological bases for appellant’s physical appearance other than alcohol.  In that context, Connolly testified to a series of tests that were done to rule out other possible explanations for appellant’s condition.  Connolly testified that the dash of the vehicle was undamaged, the steering column and windshield were intact, and appellant had no physical indications of injury, had no complaints of pain with neck movement, and had normal blood pressure, among other normal findings.  With respect to blood sugar, Connolly testified that persons with low blood sugar can exhibit behaviors that are similar to those caused by a head injury or being under the influence of alcohol.  Therefore, appellant’s blood sugar was tested to rule out that condition as a basis for the behavior.  Appellant’s blood sugar was well within the normal range, excluding it as a reason for appellant’s behavior.

            Appellant’s counsel’s mischaracterization of this testimony in closing does not create a basis for the trial court to have the testimony read to the jury.  The trial court acted properly in its refusal to do so.

Finally, because we affirm the trial court, we need not address the evidentiary issue raised by respondent.