This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Mark Robert Roush,
Filed January 28, 2003
Dakota County District Court
File No. K201590
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
James C. Backstrom, Dakota County Attorney, Debra E. Schmidt, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)
Jeffrey S. Sheridan, Strandemo & Sheridan, P.A., 320 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN 55121 (for appellant)
Considered and decided by Peterson, Presiding Judge, Willis, Judge, and Mulally, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant challenges his convictions of driving under the influence and having an alcohol concentration of 0.10 or more within two hours after driving. Appellant argues that (1) there is insufficient evidence to support his convictions and (2) the district court committed plain error by failing to instruct the jury that post-driving consumption is a defense to a charge of driving under the influence. Because the evidence supports appellant’s convictions and the district court did not commit plain error, we affirm.
At Roush’s trial, three deputies from the Dakota County Sheriff’s office testified for the state. Deputy Sharon Drews testified that (1) she arrived at the Crossroads at 10:23 p.m.; (2) she spoke with Roush, and he appeared intoxicated; and (3) Roush told her that the accident had happened within the past 30 minutes.
Deputy Jason Lindner testified that he arrived at the Crossroads at 10:20 p.m. and spoke with Roush, who appeared intoxicated. According to Deputy Lindner, Roush told him that (1) the accident had happened 15 minutes earlier; (2) Roush had arrived at the Crossroads at approximately 9:00 p.m., had drunk for approximately one hour, and then had gone back out on his snowmobile; (3) after the accident, Roush had returned to the Crossroads to get help and several people had gone to the scene of the accident and had brought Regenscheid and his snowmobile back to the Crossroads; and (4) Roush had not consumed any alcohol since the accident. Deputy Lindner further testified that, during the time that it took for him to transport Roush to the Dakota County jail and administer an Intoxilyzer test, Roush did not change his statement that he had not consumed any alcohol since the accident.
Sergeant Bradley Jeska testified that he spoke with Roush, who smelled of alcohol and had slurred speech. Sergeant Jeska testified that (1) in Roush’s presence, Deputy Lindner told Sergeant Jeska that some friends had brought Regenscheid and his snowmobile back to the Crossroads, and Roush did not dispute this account; and (2) Roush said he had not consumed any alcohol since the accident.
Roush and Regenscheid testified that (1) they consumed no alcohol before driving their snowmobiles; (2) while heading south approximately 500 yards from the Crossroads, Regenscheid’s snowmobile overturned and Regenscheid was injured; (3) they righted the snowmobile and continued driving south, reaching the Crossroads at approximately 8:00 p.m.; (4) they went into the Crossroads and drank beer for two hours; and (5) they left the bar at approximately 10:00 p.m., at which point Regenscheid collapsed in the parking lot and the police were called. Roush also testified that when the deputies asked him about the timing of the accident, he assumed they were referring to Regenscheid’s collapse in the Crossroads parking lot. Roush testified that his response of “15 minutes” ago referred not to the time of the snowmobile accident but to Regenscheid’s collapse.
Nicole Johnson, a bartender at the Crossroads, testified that she was working on the night of January 19, 2001, and served Roush and Regenscheid several drinks. Johnson testified that she did not know what time the two men came into the bar but she remembered that the police arrived in the bar’s parking lot about ten minutes after Roush and Regenscheid went outside. Johnson also testified that when Roush and Regenscheid arrived at the bar, they did not smell of alcohol, had no problems speaking, and did not appear disoriented.
Regarding the charge of having an alcohol concentration of 0.10 or more within two hours after driving, the district court instructed the jury:
The elements * * * are:
First, defendant drove a motor vehicle. * * *
Second, within two hours of the time defendant drove a motor vehicle that person’s alcohol concentration was .10 or more. In this case the defendant took a breath test to determine alcohol concentration.
Third, defendant’s act took place on or about January 19, 2001, in Dakota County.
If you find that each of these three elements has been proven beyond a reasonable doubt, defendant is guilty. If you find that any of these elements has not been so proven, defendant is not guilty.
The prosecutor discussed post-driving consumption in his closing arguments. He stated that the case was about “when * * * the drinking occur[red]” and told the jury that if “all of the drinking happened after [the accident] then [Roush] is not guilty.” He further explained that “if there was drinking after the accident, but not before, the criminal statutes don’t apply.”
The jury convicted Roush of both counts of driving while impaired, and this appeal follows.
Roush argues that the evidence is insufficient to support his convictions. In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court 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 reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Roush argues that the evidence shows that he did not drive his snowmobile after drinking. Roush contends that his testimony and that of Regenscheid and Johnson establish that the accident occurred before the two men arrived at the Crossroads and that they had not been drinking before they arrived. Roush characterizes the state’s theory of the case as requiring a showing that the accident occurred after 10:00 p.m., a proposition that he contends is unsupported by the evidence.
But the state’s witnesses provided sufficient evidence for the jury to conclude that the accident occurred after the men had been drinking at the bar. It is undisputed that Roush was intoxicated when the deputies arrived. Each deputy testified that Roush said the accident had occurred within 30 minutes before the deputies arrived. And two of the deputies also testified that Roush said that he had not consumed any alcohol after the accident. Although Roush testified, and argues on appeal, that his response to questions about when the accident happened referred to Regenscheid’s collapse and not the snowmobile accident, the jury was free to accept the testimony of the sheriff’s deputies and discredit the testimony of Roush and his witnesses, and it appears that this is what it did. The evidence is, therefore, sufficient to support Roush’s convictions of driving under the influence and having an alcohol concentration of 0.10 or more within two hours after driving.
Although Roush did not request such an instruction, he argues that the district court committed plain error by failing to instruct the jury that post-driving consumption is a defense to a charge of having an alcohol concentration of 0.10 or more within two hours after driving. See Minn. Stat. § 169A.46, subd. 1 (2000). Because Roush did not object to the district court’s instructions, he must show that the court committed plain error by failing to instruct the jury on the defense of post-driving consumption. See State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). To establish plain error, Roush must show that (1) the district court’s failure to instruct the jury on the defense of post-driving consumption was error, (2) the error was plain, and (3) the error affects substantial rights. See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
Roush argues that the district court’s error was its “failure to acknowledge before the jury” that post-driving consumption is a defense. Roush further argues that it was obvious that the defense’s theory of the case was that Roush did not drink before driving his snowmobile and that the defense therefore relied on the post-driving consumption defense to the charge of having an alcohol concentration of 0.10 or more within two hours after driving. This, Roush argues, makes the alleged error plain. Finally, Roush argues that the district court’s failure to instruct the jury on post-driving consumption affects his substantial rights because it denied him due process and a fair trial.
But there was no error because the district court’s instructions adequately informed the jury of the elements of the offense of having an alcohol concentration of 0.10 or more within two hours after driving, and the prosecutor mentioned the defense of post-driving consumption, thereby informing the jury of the defense. See State v. Gustafson, 610 N.W.2d 314, 319 (Minn. 2000) (holding that failure to instruct on an accident defense to assault was not plain error where the district court’s instructions adequately informed the jury of the elements of the offense and the prosecutor and defense counsel both explained the defense to the jury). Although the court did not acknowledge the defense in its instructions, the jury was clearly told they should find Roush not guilty if they decided that his drinking occurred after he had finished driving his snowmobile for the night.
Even if there was error, it did not affect Roush’s substantial rights because it was not prejudicial. Plain error is prejudicial if there is a “reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.” State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990). By its guilty verdict, the jury apparently rejected Roush’s assertion that the accident occurred hours before 10:00 p.m. and that he and Regenscheid started drinking after the accident. Even if the jurors had been instructed on the defense of post-driving consumption, it is not reasonably likely that they would have found Roush not guilty. Rather, the jury must have rejected the testimony of the defense witnesses and accepted the state’s theory that the accident happened closer to 10:00 p.m. and after Roush left the bar. Roush’s assertion that the jury should have been instructed on the defense of post-driving consumption ignores the jury’s apparent acceptance of the state’s theory that the drinking occurred before Roush went back out on his snowmobile. The district court’s failure to instruct the jury on the defense of post-driving consumption, therefore, was not plain error.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.