This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Scott Allen Scharmer,




Filed August 7, 2001


Schumacher, Judge


Ramsey County District Court

File No. K100475



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


Clayton M. Robinson, Jr., St. Paul City Attorney, Rachel A. Gunderson, Assistant City Attorney, 500 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)


John M. Stuart, State Public Defender, Scott G. Swanson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)



Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.



Appellant Scott Allen Scharmer challenges his convictions of being in physical control of a motor vehicle while under the influence of alcohol, arguing insufficiency of the evidence. We affirm.


On January 23, 2000, at about 6:00 a.m., St. Paul police officers responded to a call regarding a pickup truck that had crashed into a garage. The truck appeared to have rolled downhill, across the street, over a sidewalk, and over a fence before crashing into the garage. According to trial testimony, an officer approached the pickup and found Scharmer unconscious and slumped over the steering wheel. The officer detected a heavy odor of alcohol and placed Scharmer in the back of a squad car. The police ran the pickup license plate and found that it was registered to Scharmer. Scharmer admitted to police that the pickup belonged to him and stated that the keys to the pickup were in his right front shirt pocket. The police arrested Scharmer for being in physical control of a motor vehicle while under the influence of alcohol.

The police administered an intoxilyzer test at police headquarters. Scharmer's blood alcohol level registered at .13. Because of four prior driving-under-the-influence convictions, Scharmer was charged with three gross misdemeanors for being in physical control of a motor vehicle while under the influence of alcohol and one count of violating a limited driver's license. At trial, three police officers testified as to their observations of Scharmer and his vehicle. No other witnesses testified. The jury found Scharmer guilty of three misdemeanor counts of being in physical control of a motor vehicle while under the influence of alcohol. Scharmer appeals.


Scharmer argues that the evidence was insufficient to establish that he was in physical control of his pickup truck. When faced with a sufficiency of the evidence claim, this court views the evidence in the light most favorable to the verdict and assumes that the jury disbelieved any testimony that conflicts with the verdict. State v. Pederson, 614 N.W.2d 724, 731-32 (Minn. 2000). We will not disturb a verdict if the jury, acting with due regard for the presumption of innocence and the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged. State v. Richardson, 393 N.W.2d 657, 661 (Minn. 1986).

The term "physical control" is more comprehensive than either "drive" or "operate," and it is given the broadest possible effect. State v. Starfield, 481 N.W.2d 834, 836 (Minn. 1992). Physical control is meant to cover situations where an inebriated person is found in a parked vehicle that, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property. Id. at 837. A car incapable of immediate self-propelled mobility may still be a potential traffic hazard, and it is this potential for harm that the term physical control was meant to encompass. Id. at 838.

Actual operation or intent to operate a vehicle has no bearing on whether an individual is in physical control of the vehicle; drivers who are in a position to operate their vehicles without much difficulty are considered to be in physical control in the context of Minnesota's implied consent statute. See, e.g., Palme v. Comm'r of Pub. Safety, 366 N.W.2d 343, 344-45 (Minn. App. 1985) (physical control of vehicle when appellant claimed he had gotten into friend's truck only to sleep, had never planned to drive, and did not know the keys were in cab), review denied (Minn. June 24, 1985); Kozak v. Comm'r of Pub. Safety, 359 N.W.2d 625, 628 (Minn. App. 1984) (physical control of vehicle when appellant was found asleep lying on front seats of his vehicle, and it was not known whether keys were in ignition, driver's pocket, or on seat).

Scharmer argues that he was convicted on circumstantial evidence, and therefore a stricter standard of appellate review should apply. Regardless of the circumstantial evidence in this case, we find that the direct evidence was sufficient for the jury to return a verdict of guilty. One police officer testified that he found Scharmer slumped over the steering wheel and that a dog was sleeping in the passenger side of the vehicle. Another officer testified that Scharmer admitted that the keys to the pickup were in his shirt pocket. This is direct evidence.

Scharmer argues that he was actually found sitting on the passenger's side, not the driver's side, and that the officer's testimony was inconsistent with the police report. But we must assume the jury believed the officer's sworn testimony. See, e.g., State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994) (reviewing court must assume jury believed state's witnesses). Scharmer argues that he was merely in his pickup to sleep for the night and points out that since the engine was cold the pickup had not been driven recently. Scharmer surmises that his dog perhaps nudged the pickup into gear, causing the pickup to roll across the street. While all this may be true, the direct evidence presented by the police officers nonetheless allowed the jury to reasonably conclude that Scharmer was in physical control of his pickup truck.