A06-861

State of Minnesota,

Appellant,

vs.

Sarah Marie Alan,

Respondent.

Filed May 1, 2007

Reversed and remanded

Worke, Judge

Hennepin County District Court

File No. 05054870

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

Jay M. Heffern, Minneapolis City Attorney, Karen S. Herland, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for appellant)

D. Gregory Mulligan, 3209 West 76th Street, Suite 200, Edina, MN 55435 (for respondent)

Considered and decided by Worke, Presiding Judge; Lansing, Judge; and Collins, Judge.*

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

WORKE, Judge

On appeal from the district court’s grant of a motion for judgment of acquittal, the state argues that the evidence was sufficient to sustain respondent’s convictions of careless driving and driving while impaired. Because we conclude that the evidence is sufficient to sustain the convictions, we reverse and remand for the reinstatement of the jury verdict and sentencing.

D E C I S I O N

The state argues that the evidence, when viewed in a light most favorable to the state, is sufficient to sustain respondent Sarah Marie Alan’s convictions. On appeal from a directed verdict[1], this court makes an independent determination of whether the evidence was sufficient to present a fact question to the jury, reviewing the evidence in the light most favorable to the nonmoving party. Boone v. Martinez, 567 N.W.2d 508, 510 (Minn. 1997).

Here, following a car accident, respondent was charged with careless driving and driving while impaired. During trial, a paralegal working with the prosecution notified the court that a conversation between witnesses may have been overheard by a juror. The court, without the jury present, questioned the paralegal about the discussion she had with the arresting officer and the driver of the vehicle respondent hit. The paralegal stated that the witnesses discussed the extent of damage to the vehicles, that marijuana had been found in respondent’s vehicle, and respondent’s demeanor at the time of the accident. The district court then questioned the juror, who stated he did not overhear the conversation. When the trial resumed, the officer testified during cross-examination that his conversation with the other witness related to “[h]is work, his school, the situation downtown.” When asked if he discussed the case with the witness, the officer stated: “I – think we did. I can’t say we did or didn’t. I – just general conversation.” After the jury found respondent guilty and was discharged, respondent moved for judgment of acquittal. The district court granted the motion based on the officer’s false testimony.

The standard for ruling on a motion for a judgment of acquittal is whether the evidence is sufficient to sustain a conviction of the offense. Minn. R. Crim. P. 26.03, subd. 17. When a motion for judgment of acquittal is made after the jury is discharged, rule 26.03, subd. 17(3), provides: “If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal, in which case the court shall make written findings specifying its reasons for entering a judgment of acquittal.” The district court granted the motion for judgment of acquittal based on the officer’s false testimony but when viewed in a light most favorable to the state, without considering the officer’s testimony, there is sufficient evidence to sustain the convictions.

The jury found respondent guilty of careless driving. “Any person who operates or halts any vehicle upon any street or highway carelessly or heedlessly in disregard of the rights of others, or in a manner that endangers or is likely to endanger any property or any person” is guilty of careless driving. Minn. Stat. § 169.13, subd. 2 (2004). The other driver involved in the accident testified that he was driving in the left lane and that respondent was slightly ahead of him in the right lane when respondent unexpectedly turned left into his vehicle. The driver testified that he was traveling approximately 33 to 35 mph and that the impact was severe enough to set off his airbags and cause substantial damage to both vehicles. Respondent admitted at the scene that she was attempting to make a U-turn. These facts, when viewed in a light most favorable to the state, are sufficient to sustain respondent’s conviction for careless driving.

There is also sufficient evidence to sustain respondent’s conviction for driving while impaired. “It is a crime for any person to drive, operate, or be in physical control of any motor vehicle within this state . . . (2) when the person is under the influence of a controlled substance . . . .” Minn. Stat. § 169A.20, subd. 1(2) (2004). Another officer present at the accident scene testified that he had received drug-recognition training and believed that respondent was under the influence of marijuana. See State v. Klawitter, 518 N.W.2d 577, 586 (Minn. 1994) (allowing opinion testimony by experienced police officers trained in the use of drug-recognition protocol). The officer testified that respondent exhibited signs and symptoms of marijuana use—an elevated pulse, dilated pupils, poor performance on balancing tests, and eyelid tremors. Further, respondent provided a blood sample that tested positive for THC, the psychoactive ingredient in marijuana. A forensic scientist testified that THC remains in the blood stream for approximately four hours after use. When viewed in a light most favorable to the state, without considering the officer’s false testimony, there is sufficient evidence to sustain respondent’s conviction for driving while impaired.

Respondent argues that the district court acted reasonably and within its discretion by granting the motion. “Perjured testimony must be set aside if there is a reasonable likelihood that it affected the jury verdict.” State v. Gustafson, 379 N.W.2d 81, 85 (Minn. 1985). Here, however, there is no showing that perjured testimony affected the jury verdict or that respondent was not permitted to impeach the officer regarding his perjured testimony. Additionally, the record before this court fails to include any evidence that allows us to determine if this line of inquiry was prohibited by the district court. Although there were numerous bench discussions, a transcript or record of the exchanges was not made. Further, there are no written findings detailing the district court’s reasons for granting the motion. The transcript shows that while the officer was not completely truthful regarding the content of his discussion with the other witness, there is nothing in the record to indicate that the witnesses had been sequestered and that he violated such an order. Further, the juror involved testified that he did not overhear the conversation, and there is no evidence that witnesses were attempting to align their testimony. Therefore, because it is unlikely that the officer’s false testimony had a substantial impact on the jury, the district court erred in granting respondent’s motion for judgment of acquittal. The matter is reversed and remanded for reinstatement of the jury verdict and sentencing.

Reversed and remanded.

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

[1] See Minn. R. Crim. P. 26.03, subd. 17(1) (“Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place.”)