This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Aaron Axel Kivi,


Filed March 31, 1998


Huspeni, Judge

Sherburne County District Court

File No. T968809

John D. Ellenbecker, 101 Seventh Ave. S., P. O. Box 1127, St. Cloud, MN 56302-1127 (for appellant)

Hubert H. Humphrey III, Attorney General, 445 Minnesota St., Suite 1400, St. Paul, MN 55101; Walter M. Kaminsky, Sherburne County Attorney, Thomas C. McNinch, Asst. County Attorney, 13880 Hwy. 10, Elk River, MN 55330-4601 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Huspeni, Judge, and Shumaker, Judge.



Appellant challenges his conviction for driving under the influence of alcohol on the grounds that there was insufficient evidence to prove that he was driving, operating, or in physical control of the vehicle. Because the record contains sufficient evidence to support the conviction, we affirm.


At 1:18 a.m. on September 1, 1996, Officer David Olson of the Elk River Police Department received a call regarding a possible drunk driver leaving a gas station in Elk River. The vehicle was described as a Dodge Dakota, license number 843-HCG. At 1:22 a.m., he received a call regarding damaged mailboxes a few blocks away from the station.

At around 4:00 a.m., after determining the home address of the owner of the vehicle, Olson drove to that residence, which was within five blocks of the two reported incidents. Upon arrival, Olson discovered the suspect vehicle inside an open garage that had apparently been hit by the vehicle when it entered. Olson found appellant Aaron Axel Kivi on the floor next to the passenger side of the vehicle lying in a pool of his own vomit. Thomas Darkenwald, son of the owner of the vehicle, was unconscious in the passenger side of the vehicle.

Olson aroused both appellant and Darkenwald and attempted to elicit information from them. Both were in an extremely intoxicated state and had difficulty staying conscious. Olson asked appellant if he had been driving the pickup and he responded "yes." Appellant also told Olson that he had gone to the gas station to get lottery tickets. Olson was unable to elicit any information from Darkenwald except for his name. Appellant was subsequently taken to a local hospital; a blood sample taken at 5:00 a.m. registered a .18 blood alcohol level.

Appellant was charged with one count of underage consumption, one count of driving under the influence of alcohol, one count of driving with an alcohol concentration of .10 or greater, and one count of hit and run in violation of Minn. Stat. § 169.09. He pleaded guilty to the charge of underage consumption, and a bench trial was held on the remaining charges.

At trial, appellant testified that he did not begin drinking until after his parents had called him at the Darkenwald residence sometime between 10:30 and 11:00 p.m. He also testified that he drove to the gas station sometime between 10:30 and 11:00 to pick up some batteries with Darkenwald, but this was the last trip that he remembered making. Darkenwald testified to the same course of events and stated that he blacked out during the trip to the gas station and does not remember anything until he woke up briefly when the vehicle hit the garage. An employee of the gas station who observed the intoxicated individuals around 1:18 a.m. testified that there were three or four juveniles in the store when the police were called. She stated that she could not see who was driving the vehicle when it left.

Appellant was found guilty of driving under the influence of alcohol and not guilty of the other charges.


Where there is a challenge to the sufficiency of the evidence, our review on appeal 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 permit the [triers of fact] to reach the verdict which [it] did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). "[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Minn. R. Civ. P. 52.01. "It is a crime for any person to drive, operate, or be in physical control of any motor vehicle within this state" under the influence of alcohol. Minn. Stat. § 169.121, subd. 1(a) (1996). Appellant argues that there is insufficient evidence to prove beyond a reasonable doubt that he was driving, operating, or in physical control of the vehicle at the time he was intoxicated. We disagree.

Both appellant and Darkenwald testified that sometime between 10:30 and 11:00 p.m. they drove to the local gas station to get batteries; neither of them remembered driving the vehicle again after that time. In addition, neither of them remembered the course of events that led to them being found near the damaged vehicle in the garage. Because the trial court has discretion to judge the credibility of witnesses, it was not obliged to believe the uncorroborated testimony that only one trip was made or that appellant did not remember driving the vehicle a second time.

Even if we were to assume that their testimony was true, the fact that neither appellant nor Darkenwald remembered driving the vehicle more than once does not preclude the trial court from concluding that, based on the circumstantial evidence, they had taken a second trip. Considering appellant and Darkenwald's severely impaired state, it is a reasonable inference that their inability to remember was due to their intoxication. In addition, Officer Olson testified that when he aroused appellant and asked him if he had driven the vehicle, appellant answered "yes." Though appellant told Olson that he had driven to the gas station to get lottery tickets, he testified at trial that the 11:00 p.m. trip was for batteries. Olson's failure to ascertain exactly when appellant had driven the vehicle can be attributed to the difficulty of obtaining information when both appellant and Darkenwald were unable to remain conscious.

The trial court has broad discretion in judging credibility and drawing reasonable conclusions based on the circumstantial evidence. In the present case, we believe that it was reasonable for the court to conclude that appellant was in physical control of the vehicle based on appellant's own admission to the officer that he had driven the vehicle to the gas station and the circumstantial evidence surrounding the incident.