This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
COURT OF APPEALS
State of Minnesota,
Troy William Dulude,
Filed December 18, 2007
Benton County District Court
File No. CR-06-261
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Robert J. Raupp, Benton County Attorney, Karl L. Schmidt, Assistant County Attorney, Courthouse, 615 Hwy 23, Foley, MN 56329 (for respondent)
John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Dietzen, Presiding Judge; Ross, Judge; and Harten, Judge.*
After midnight on a day in January 2006, a police officer in Sauk Rapids observed appellant Troy Dulude driving a car in the opposite direction without the headlights turned on. The officer turned on his emergency lights, turned his patrol car around, and attempted to stop appellant. After continuing for about two blocks, appellant drove toward the curb but then pulled back out toward the road and parked the car several feet from the curb.
When the officer exited his patrol car, appellant drove off at a high rate of speed. The officer pursued appellant through a residential area of Sauk Rapids and recorded the chase with the patrol car’s mobile-vision camera. During the chase, the officer saw that appellant was driving at speeds of up to 80 miles per hour, ran several stop signs, and did not turn on his headlights. At one point, appellant drove across a residential front yard before correcting his vehicle and returning to the road. Eventually, appellant lost control of the vehicle and struck a utility pole.
When appellant exited the vehicle and was handcuffed, the officer detected an odor of alcohol on appellant’s breath and noticed that appellant’s eyes were bloodshot and watery. Based on his observations, the officer concluded that appellant was driving while under the influence of alcohol.
The officer requested that appellant perform a field sobriety test, but he refused. Appellant was later given an Intoxilyzer test, but the officer denied appellant’s request for additional testing. The officer checked appellant’s driving status and learned he did not have a valid driver’s license and there were outstanding warrants for his arrest.
Appellant was charged with two counts of first-degree driving while impaired, fleeing a peace officer, and driving after cancellation. Before trial, defense counsel moved to suppress the Intoxilyzer results because appellant was denied his request for additional testing. At the hearing, the state conceded that the Intoxilyzer results should be suppressed. Pursuant to the state’s concession, one count of first-degree driving while impaired was dismissed, and appellant pleaded guilty to driving after cancellation.
At trial, the police officer testified to the events that led up to appellant’s arrest and opined that appellant was driving under the influence of alcohol. The officer testified that he did not see appellant staggering or weaving but explained that there was no opportunity to observe appellant’s balance because he was escorted to the patrol car by two officers.
Following trial, the jury convicted appellant of first-degree driving under the influence and fleeing a peace officer. The district court imposed executed concurrent sentences for the convictions and an executed consecutive term for a previous probation violation. This appeal followed.
Appellant contends that the evidence is not sufficient to support his conviction of driving under the influence. 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 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). 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. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).
To secure a conviction of driving under the influence, the state must prove beyond a reasonable doubt that the defendant (1) drove a motor vehicle and (2) was under the influence of alcohol while driving the motor vehicle. 10A Minnesota Practice, CRIMJIG 29.02 (2006). Under Minn. Stat. § 169A.20, subd. 1(1) (2004), there is no set standard as to the amount of alcohol a person must consume to be considered “under the influence” of alcohol. Compare Minn. Stat. § 169A.20, subd. 1(5) (2004) (a person is driving while impaired when the person’s alcohol concentration is 0.08 or more). A person is “under the influence” when the person does not “‘possess that clearness of intellect and control of himself that he otherwise would have . . . .’” State v. Teske, 390 N.W.2d 388, 390 (Minn. App. 1986) (quoting State v. Graham, 176 Minn. 164, 169, 222 N.W. 909, 911 (1929)). The state need only show that “the driver had drunk enough alcohol so that the driver’s ability or capacity to drive was impaired in some way or to some degree.” State v. Shepard, 481 N.W.2d 560, 562 (Minn. 1992).
Appellant argues that he did not exhibit physical signs of intoxication such as staggering, weaving, or slurred speech, and that his bloodshot, watery eyes were the result of being “tossed around the car during the crash.” But we must assume for purposes of appeal that the jury believed the state’s witness. Moore, 438 N.W.2d at 108. The officer testified that appellant’s bloodshot, watery eyes and the odor of alcohol were consistent with driving under the influence of alcohol. Further, appellant was not injured in the crash and did not request medical attention, which tended to negate any innocent explanation for his bloodshot, watery eyes. Cf. State v. Horner, 605 N.W.2d 405, 410-11 (Minn. App. 2000) (innocent explanation for boater’s red, watery eyes was that he was traveling 30 miles per hour in a speedboat without protective eyewear), aff’d in part, rev’d in part, and remanded on other grounds, 617 N.W.2d 789 (Minn. 2000).
Appellant also contends that his erratic driving was caused by “a high-speed chase gone awry.” Clearly, some of appellant’s conduct was consistent with fleeing a police officer. But the officer testified that appellant’s erratic driving, which included the failure to activate headlights, failure to stop at numerous stop signs, badly missing two turns, and crashing into a utility pole, was consistent with driving under the influence of alcohol. See State v. Waterston, 371 N.W.2d 650, 651-52 (Minn. App. 1985) (holding evidence sufficient to sustain conviction when officers determined that appellant was intoxicated based on their observation that he was involved in a one-car accident, smelled of alcohol, was unusually talkative, and was unsteady). Additionally, the officer noted that even before the chase began, appellant was driving without the headlights turned on and was weaving toward the curb.
We conclude that the totality of the evidence is sufficient to support the conviction.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.