This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Kareem Joseph Jabar Howard,
Filed February 6, 2007
Stearns County District Court
File No. K6-04-004927
Lori Swanson, Attorney General, 1800
Jan F. Petersen, St. Cloud City Attorney, Mark C. Hansen,
Assistant City Attorney, St. Cloud City Attorney’s Office,
John M. Stuart, State Public Defender, Rochelle R. Winn,
Assistant Public Defender,
Considered and decided by Halbrooks, Presiding Judge; Stoneburner, Judge; and Crippen, Judge.*
On appeal from his conviction of driving while intoxicated (DWI), appellant argues that the evidence was insufficient to support the verdict. We affirm.
the morning of August 15, 2004, Sergeant Lori Irvin of the
Appellant was charged with third-degree DWI for being under the influence of alcohol and for being under the influence of both alcohol and a controlled substance. See Minn. Stat. § 169A.20, subd. 1 (2004) (establishing DWI for alcohol and controlled substances); Minn. Stat. § 169A.26 (2004) (defining third-degree DWI). But appellant was not charged with DWI for driving with an alcohol concentration of .10 or more as measured within two hours of driving under Minn. Stat. § 169A.20, subd. 1(5) (2004). Appellant requested a jury trial.
A jury convicted appellant of DWI for being under the influence of alcohol but acquitted him of the charge of DWI for being under the influence of alcohol and a controlled substance. Appellant was sentenced to one year in jail with execution of all but 30 days stayed. This appeal follows.
claims that there was insufficient evidence to support the jury’s guilty
verdict for DWI. The state must prove
“beyond a reasonable doubt all of the essential elements of the crime with
which the defendant is charged.” State v. Ewing, 250
fact-finder has the exclusive function of judging witness credibility and
weighing the evidence, Dale v. State, 535 N.W.2d 619, 623 (
Stat. § 169A.20, subd. 1 (2004), states that “[i]t is a crime for any person to
drive, operate, or be in physical control of any motor vehicle within this
state or on any boundary water of this state . . . when the person is
under the influence of alcohol.” No
specific level of intoxication is required to support this charge of DWI as
long as the state can prove that the driver was impaired. State v. Shepard, 481 N.W.2d 560, 562
Here, the jury heard evidence that appellant demonstrated several indicia of intoxication. Both law-enforcement officers testified that appellant drove in the wrong lane of traffic, almost hitting a squad car head-on. In addition, appellant had an odor of alcohol and bloodshot eyes when stopped, and he failed the field sobriety tests. The Breathalyzer test, although weak, measured a .10 alcohol concentration, appellant’s urinalysis evidenced an alcohol concentration of .09, and appellant admitted to consuming two drinks that night.
Appellant offered explanations for some of these physical manifestations. But the jury heard all of the testimony and made credibility determinations. Having reviewed the record, we conclude that it contains sufficient evidence to support appellant’s conviction of DWI.
argues in his pro se supplemental brief that he received ineffective assistance
of counsel. Because this claim was not
raised in the district court, we decline to reach it. Roby v.
State, 547 N.W.2d 354, 357 (
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
2004, the legislature amended this statute by lowering the
alcohol-concentration limit from .10 to .08, but the amendment did not take
effect until August 1, 2005. 2004