This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-95-2025

State of Minnesota,
Respondent,

vs.

Steven Sondrol,
Appellant.

Filed July 16, 1996
Affirmed
Peterson, Judge

Benton County District Court
File No. T3942230

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael Jesse, Benton County Attorney, Justin McBride, Assistant Benton County Attorney, Courthouse, 531 Dewey Street, Foley, MN 56329 (for Respondent)

Denis E. Hynes, Special Assistant Public Defender, 816 W. St. Germain, Suite 600, St. Cloud, MN 56301 (for Appellant)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Schultz, Judge.*

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

This appeal is from a conviction for driving under the influence of alcohol. We affirm.

FACTS

On September 24, 1994, at approximately 7:30 p.m., appellant Steven Sondrol collided with another vehicle at an intersection. Immediately after the accident, a witness came forward and offered assistance. The witness testified that Sondrol smelled of alcohol, that Sondrol "didn't walk really well," and that his walk was "[k]ind of waverly, crooked."

The first state trooper to arrive on the scene did not perform any field sobriety tests on Sondrol, but he noticed that Sondrol smelled of alcohol; had watery, bloodshot eyes; and had a lack of balance. The second officer to arrive did not perform any field sobriety tests on Sondrol, but testified that he noticed the smell of alcohol and that he "assumed by [Sondrol's] walking that [Sondrol] could be under the influence."

A third officer, who transported Sondrol to the Wright County jail, testified that Sondrol smelled of alcohol. At 11:15 p.m., after Sondrol arrived at the jail, a fourth officer administered an intoxilizer test, which registered .13. The officer who administered the test testified that Sondrol smelled of alcohol and that his eyes were watery and bloodshot.

Sondrol was charged with one count of driving under the influence (Count I) and one count of driving with a blood alcohol content over .10 (Count II). Sondrol's motion for a directed verdict on Count II was granted.

Neither party called any expert witnesses to testify. The trial court instructed the jury to disregard the intoxilizer test and its results. Sondrol was convicted of driving under the influence of alcohol in violation of Minn. Stat. ' 169.121, subd. 1(a) (1994) and received an executed sentence of 15 days jail time and a $400 fine.

D E C I S I O N

I.

Sondrol first argues that the evidence was insufficient to sustain his conviction.

When a conviction is challenged on grounds of insufficient evidence, reversal is provided only when the evidence, viewed in the light most favorable to the verdict, is insufficient as a matter of law to sustain the conviction.

State v. Larson, 429 N.W.2d 674, 675 (Minn. App. 1988), review denied (Minn. Nov. 8, 1988). We must determine whether a jury could reasonably conclude that the defendant was guilty. Id.

Sondrol argues that his conviction should be reversed because the evidence of intoxication in this case is similar to the evidence in State v. Elmourabit, 373 N.W.2d 290, 293-94 (Minn. 1985), in which the supreme court affirmed this court's reversal of a conviction for driving under the influence. We disagree. The evidence in Elmourabit provided an alternative explanation for the indicia of intoxication displayed by the driver. Id. at 291-92, 293-94. The supreme court acknowledged that it was a close issue whether the evidence as a whole sustained the guilty verdict and stated with regard to the issues raised by the evidence:

These are the kind of issues that this court, with rare exception, has always left to a jury. We conclude, however, that this is one of those rare exceptions. Even with the credence to be given the state's case, the unique facts and circumstances here, particularly in their various combinations, require us to conclude that the state's proof falls short of proof beyond a reasonable doubt.

Id. at 294.

This case is not one of those rare exceptions that warrant reversing the jury's verdict. Here, five witnesses testified that Sondrol smelled of alcohol. Three of these witnesses testified that Sondrol's gait was unsteady, and two testified that Sondrol's eyes were watery and bloodshot. Unlike Elmourabit, the evidence does not provide an alternative explanation for the odor, the watery, bloodshot eyes, or the unsteady gait. The totality of the evidence supports the verdict.

II.

Sondrol argues the intoxilizer test results created unfair prejudice because the test was taken nearly four hours after the accident, and there was no expert testimony to explain the results to the jury.

As a general rule, any error which may occur by reason of the erroneous admission of evidence is cured when that evidence is stricken from the record and accompanied by a clear instruction to disregard so that the evidence is not put to use by the jury. If, however, evidence is of such an exceptionally prejudicial character that its withdrawal from the jury cannot remove the harmful effects caused by its admission, a new trial should be granted.

State v. Bergland, 290 Minn. 249, 254, 187 N.W.2d 622, 626 (1971) (citations omitted). This court must view the admission of prejudicial evidence in the full context of the testimony in deciding if a new trial should be granted. State v. Johnson, 291 Minn. 407, 415, 192 N.W.2d 87, 92 (1971).

The intoxilizer test result was admitted as part of the state's case. When the state failed to present expert testimony linking the test result to Sondrol's blood alcohol concentration at the time of driving, the trial court granted Sondrol's motion for a directed verdict on the charge of driving with a blood alcohol concentration over .10, prohibited the state from mentioning the test result in its closing argument, and instructed the jury to disregard the test result. Considering the admission of the test result in the full context of the testimony, the evidence was not so exceptionally prejudicial that the harmful effect could not be removed by the curative instruction given by the trial court.

Affirmed.


Footnotes

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