This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,





Kareem Joseph Jabar Howard,



Filed February 6, 2007


Halbrooks, Judge



Stearns County District Court

File No. K6-04-004927



Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Jan F. Petersen, St. Cloud City Attorney, Mark C. Hansen, Assistant City Attorney, St. Cloud City Attorney’s Office, 400 2nd Street South, St. Cloud, MN 56301 (for respondent)


John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Halbrooks, Presiding Judge; Stoneburner, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


            On appeal from his conviction of driving while intoxicated (DWI), appellant argues that the evidence was insufficient to support the verdict.  We affirm.


            On the morning of August 15, 2004, Sergeant Lori Irvin of the St. Cloud police department was on patrol in her squad car when she had to swerve to avoid a head-on collision with a van in her lane of travel.  Officer Jolene Thelen was nearby and saw the incident.  She stopped the van, which was being driven by appellant Kareem Joseph Jabar Howard.  Because appellant had an odor of alcohol, Officer Thelen administered field sobriety tests, which appellant failed.  Appellant took a Breathalyzer test that evidenced an alcohol concentration of .10; a subsequent urinalysis detected an alcohol concentration of .09 and traces of marijuana.

            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).[1]  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.


            Appellant 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 Minn. 436, 442, 84 N.W.2d 904, 909 (1957).  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 a light most favorable to the conviction,” was sufficient to allow the jurors to reach their verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that 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 is especially true when resolution of the matter depends on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). 

            The fact-finder has the exclusive function of judging witness credibility and weighing the evidence, Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995), and this court defers to the fact-finder’s credibility determinations.  State v. Kramer, 668 N.W.2d 32, 37 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003).  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 reasonably conclude that the defendant was guilty of the charged offense.  State v. Larson, 429 N.W.2d 674, 675 (Minn. App. 1988), review denied (Minn. Nov. 8, 1988).  Overturning a jury verdict is a heavy burden for a defendant.  State v. Vick, 632 N.W.2d 676, 690 (Minn. 2001).

            Minn. 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 (Minn. 1992).  Outward manifestations of intoxication include erratic driving, slurred speech, odor of alcohol, watery and bloodshot eyes, inability to perform sobriety tests, chemical-test results, and admissions or observations of actual drinking.  9A Henry W. McCarr & Jack S. Nordby, Minnesota Practice § 56.39 (2001).  This court has held that the presence of several factors can justify a conviction.  See State v. Teske, 390 N.W.2d 388, 390 (Minn. App. 1986) (sustaining verdict when appellant’s speech was slurred, his balance was affected, his eyes were glassy and bloodshot, he had an odor of alcohol, and two officers had seen appellant commit traffic violations). 

            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.

            Appellant 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 (Minn. 1996). 


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1] In 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 Minn. Laws ch. 283, §§ 3, 15, at 1244, 1253.