This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Loren John Schmitz, petitioner,



Filed June 17, 2003

Affirmed in part, vacated in part

Randall, Judge


Stearns County District Court

File No. K5-02-167



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


Janelle P. Kendall, Stearns County Attorney, Michael, J. Lieberg, Assistant Stearns County Attorney, 705 Courthouse Square, Administration Center, Room 448, St. Cloud, MN  56303 (for respondent)


Robert D. Stoneburner, Stoneburner Law Office, 100 Washburne Avenue, P.O. Box 202, Paynesville, MN  56362 (for appellant)



            Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant argues the state lacked probable cause to arrest him for driving while impaired and testing at 0.10 or more within two hours of driving.  Appellant also argues there was insufficient evidence to support his convictions for these crimes.  Although we find no error, we affirm appellant’s conviction on count one, but vacate his conviction on count two.  Count two is a single behavioral count, and the record shows the district court, after a conviction on count one, merged count two.


            At approximately 9:00 p.m. on January 12, 2002, Deputy John Lentz of the Stearns County Sheriff’s Department was on patrol on County Road 12 in rural Stearns County, near the town of St. Martin.  There was roughly an inch of snow on the ground and Lentz testified that the road conditions were a bit slippery.  As he was heading towards town, Lentz testified that he noticed a blue county address sign in the middle of the road and a bunch of tire tracks and swirls around the sign.  The tracks seemed to indicate that a vehicle had gone into the ditch and later been removed.  Lentz also observed two pickup trucks parked in the driveway at the residence adjacent to the sign, and he decided to investigate. 

            As Lentz pulled into the driveway, he spotted two men sitting in the cab of one of the pickup trucks.  Lentz discovered that the residence belonged to Jeremy Kollman.  Upon Lentz’s arrival, Kollman got out of the pickup and approached Lentz.  A check of the squad car’s computer revealed that one of the pickups belonged to Kollman, and the other pickup belonged to appellant.  Lentz testified that after he talked with Kollman, he approached the vehicle and identified the passenger as appellant.  Lentz noticed that appellant had watery eyes, and when asked about his pickup, appellant told Lentz that a friend had been driving the pickup.  When asked, appellant would not disclose the whereabouts or the identity of his friend, claiming he did not want to get his friend into trouble.

            During his conversation with appellant, Lentz observed appellant’s bloodshot eyes and smelled an odor of alcohol emanating from him.  Lentz asked appellant if he had been drinking that day, to which appellant responded that he had consumed about seven or eight beers while playing cards at a friend’s house.  Lentz then asked appellant to leave the vehicle and he proceeded to conduct a series of field sobriety tests on appellant.  Based upon appellant’s performance during the tests, Lentz concluded that appellant was under the influence of alcohol, and asked him for the insurance information from his vehicle.   

            Lentz testified that he attempted to open the passenger door of appellant’s vehicle, but found that it was locked.  Appellant then took the keys from his right front pants pocket and opened the passenger side door to retrieve the insurance information.  Lentz stated that appellant’s vehicle was full of appellant’s belongings.  He also testified that the floorboard on the driver’s side of the vehicle was dirty and had puddles of water, but the front passenger floorboard was dry and had a bottle of cleaner and some papers on it.  

            Lentz took appellant to the Paynesville Police Department and appellant submitted to an Intoxilyzer test.  The test was administered at 10:14 p.m. and appellant’s blood alcohol concentration measured 0.16.  After the test, Lentz transported appellant to the Stearns County Jail where Lentz asked appellant for the keys to his pickup.  Appellant stated that he was not driving and that he did not have the keys.  Upon investigation, Lentz located the keys underneath the backseat of his squad car where appellant had been sitting.  Appellant was charged with driving while impaired under Minn. Stat. § 169A.20, subd. 1(1) (2002), and testing at 0.10 or more within two hours of driving, under Minn. Stat. § 169A.20, subd. 1(5) (2002).

            At trial, Kollman testified that appellant had knocked on his door requesting that he help move appellant’s vehicle off the road.  After observing the damaged undercarriage and wrecked steering wheel, Kollman proceeded to pull appellant’s vehicle off the road into his driveway.  Although Kollman could not be certain as to what time appellant woke him up, Kollman testified he thought it was about 30 minutes before Lentz arrived at the scene.  Kollman also testified that he did not see anyone with appellant at the scene, nor did he ever see appellant in the truck.  Kollman testified that when Lentz arrived at the scene, appellant asked Kollman to tell Lentz the vehicle was not his.  Lentz testified that he never actually saw appellant driving the truck and did not know the exact time of the accident.  A jury found appellant guilty of both charged offenses.  This appeal followed.     


 Count I (Driving While Impaired)

            Appellant argues the police lacked probable cause to arrest him for driving while impaired (DWI).  On appeal from a trial court’s finding that probable cause to arrest existed, we make “an independent review of the facts to determine the reasonableness of the police officer’s actions.”  State v. Olson, 436 N.W.2d 92, 94 (Minn. 1989) (citation omitted), aff’d, 495 U.S. 91, 110 S. Ct. 1684 (1990).  A trial court’s finding that the police had probable cause to arrest will not be set aside absent clear error.  State v. Camp, 590 N.W.2d 115, 118 (Minn. 1999).

            In Minnesota, probable cause to arrest exists when the objective facts are such that under the circumstances, “a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed.”  State v. Wynne, 552 N.W.2d 218, 221 (Minn. 1996) (quoting State v. Johnson, 314 N.W.2d 229, 230 (Minn. 1982)).  Probable cause generally requires something more than mere suspicion, but something less than the evidence necessary for conviction.  Camp, 590 N.W.2d at 119 n.9.  The determination is based upon the totality of the circumstances.  State v. Driscoll, 427 N.W.2d 263, 265 (Minn. App. 1988).  Reviewing courts should pay great deference to an officer’s determination of probable cause.  State v. Olson, 342 N.W.2d 638, 640-41 (Minn. App. 1984).

            In the present case, appellant argues the state lacked probable cause to arrest him because Officer Lentz was unable to determine with any degree of certainty who was driving the truck.  We disagree.  There is reasonable circumstantial evidence to support Lentz’s strong suspicion that Appellant was in an intoxicated state at the time he operated his motor vehicle.  In making its determination that probable cause existed, the district court stated:

Here, the Deputy relied on these objective facts at the scene:  an unexplained one vehicle crash; the presence of the owner of the crashed vehicle; only one other vehicle on the scene; the
presence of the owner of the only other vehicle on the scene; the owner of the crashed vehicle allegedly having requested that the other person at the scene make a false report about ownership of his crashed vehicle; owner of the crashed vehicle claiming another third party was driving, but refusing to identify said party; noted lack of observable evidence of third party having left/fled the scene; owner of the crashed vehicle observably under the influence of alcohol; no alcohol containers at the scene to suggest post-crash consumption; the owner of the crashed vehicle in possession of the keys for crashed vehicle; and the wetness of the driver side floor mat in conjunction with the dryness of the passenger side of the crashed vehicle-indicating both no third party present and amount of time that had elapsed since the driver was in the crashed vehicle. 


These factors taken together support a probable cause determination. 

            Appellant also argues there was insufficient evidence to support his conviction for DWI.  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 may 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).  This 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).

            Circumstantial evidence is entitled to as much weight as direct evidence.  State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992). For a defendant to be convicted based on circumstantial evidence alone, however, the circumstances proved must be consistent with the hypothesis that the defendant is guilty and is inconsistent with any rational hypothesis other than guilt.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  Even with this strict standard, the factfinder is in the best position to weigh the credibility of evidence and thus determines which witnesses to believe and how much weight to give to their testimony.  State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985).

            Here, appellant admitted he was intoxicated, but claims he was not driving and that a friend of his was.  The record shows no evidence in appellant’s pickup or at the accident scene to support appellant’s claim that a friend had been driving his pickup.  There is nothing in the record to support post-crash alcohol consumption.  Appellant’s evasiveness in talking to the officer, although not determinative, could have affected his credibility in front of the jury, and credibility is for the fact-finder.  Based on the totality of the evidence, a jury could reasonably conclude that appellant was guilty of the charged offenses.  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 conclude there was sufficient evidence to sustain appellant’s conviction for DWI.

Count II (Testing at 0.10 or More Within Two Hours of Driving)

            Appellant also challenges his conviction on count two.  Appellant contends that Officer Lentz was unable to determine with any degree of certainty when appellant was driving his pickup.  Thus, appellant argues the state lacked probable cause to arrest him for
testing at 0.10 or more within two hours of driving, and that there was insufficient evidence to sustain his conviction on this charge.

            We do not have to reach the merits.  The single behavioral incident statute, Minn. Stat. § 609.035 (2002) protects criminal defendants from both multiple prosecutions and multiple sentences for offenses resulting from the same behavioral incident.  State v. Schmidt, 612 N.W.2d 871, 876 (Minn. 2000).  The single act statute, Minn. Stat. § 609.04 (2002), bars the conviction of a defendant twice for the same offense on the basis of the same act.  State v. Ture, 353 N.W.2d 502, 517 (Minn. 1984).  Sections 609.35 and 609.04 limit the state’s ability to prosecute, sentence, or obtain a separate conviction for criminal acts that arise out of the same set of facts.

            Here, count two (.10 within two hours of driving) is a singular behavioral count.  Appellant was arrested for DWI and testing at 0.10 or more within two hours of driving.  These offenses resulted from the same behavioral incident, and the district court recognized this.  The sentencing transcript shows that appellant’s convictions were merged and that appellant was sentenced on count one (DWI impaired driving) only.  The merging of appellant’s two convictions and the sentencing on impaired driving only is equivalent to vacating appellant’s conviction for testing at 0.10 or more within two hours of driving.  Although appellant challenges his conviction on count two also, since we affirm appellant’s conviction on count one, count two is moot.  Appellant’s conviction for testing at 0.10 or more within two hours of driving is formally vacated. 

            Affirmed in part and vacated in part.