This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-1751

State of Minnesota,

Respondent,

vs.

James Vincent Bestick,

Appellant.

Filed July 1, 1997

Affirmed

Schumacher, Judge

Stearns County District Court

File No. K3951443

Hubert H. Humphrey III, Attorney General, John K. Lampe, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Walter M. Kaminsky, Sherburne County Attorney, Nancy J. Logering, Assistant County Attorney, Sherburne County Government Center, 13880 Highway 10, Post Office Box 318, Elk River, MN 55330 (for Respondent)

John D. Ellenbecker, Post Office Box 1127, St. Cloud, MN 56302 (for Appellant)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

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

SCHUMACHER, Judge

James Vincent Bestick appeals from his conviction for criminal vehicular homicide, arguing the trial court erred in considering evidence not offered at trial, and the evidence is not sufficient to support the conviction. We affirm.

FACTS

On February 13, 1995, after returning home from visiting his brother in the hospital, Bestick lost consciousness in his garage. Bestick stated he experienced an episode of syncope, a condition that causes a person to lose consciousness. Bestick has a history of syncope. Due to his condition, Bestick was strongly advised not to drive until his condition could be treated by a pacemaker implantation. Bestick had a pacemaker implanted sometime between August 29, 1994, and February 4, 1995.

When Bestick regained consciousness, he called the St. Cloud Heart Center because he thought his pacemaker might have been damaged in an automobile accident on February 4, 1995. Bestick was unable to talk to his usual doctor and consequently left a voice mail message.

After leaving the message, Bestick drove to a Target store and shopped for 10 to 15 minutes. Bestick then went to a liquor store where he bought a bottle of peppermint schnapps. Bestick then drove to a grocery store and drank approximately one-third of the schnapps before entering the store. After 15 minutes of shopping, Bestick returned to the car and resumed drinking the schnapps.

After an indeterminate amount of time, Bestick began driving on a local highway. As he was driving, Bestick noticed he was about to lose consciousness and grabbed for the emergency brake. At 12:44 p.m., Bestick's vehicle crossed the median and struck a vehicle driven by Homer Aarsvold, killing Aarsvold.

At the St. Cloud hospital, the treating doctor noticed that Bestick smelled of alcohol. Officer Joseph Kraayenbrink testified that he noticed a strong odor of alcohol inside Bestick's car. Ann Manly, a forensic science consultant, testified that Bestick's blood alcohol concentration at the time of the accident, using retrograde extrapolation, was between 0.04 and 0.18.

Bestick was charged with three counts of criminal vehicular homicide. On January 16, 1996, a trial was conducted without a jury, and Bestick was found guilty of causing the death of a human being while operating a motor vehicle in a negligent manner and while under the influence of alcohol. Bestick appeals.

D E C I S I O N

1. Bestick argues the evidence was not sufficient to support the conviction. In a challenge to the sufficiency of the evidence, this court is limited to a review of the record to determine whether the evidence, viewed in a light most favorable to the conviction, was sufficient to permit the jury's verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court assumes "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). The same standard of review applies in criminal cases whether the case was tried to a jury or to the court. State v. Ibarra, 355 N.W.2d 125, 130 (Minn. 1984).

A person is guilty of criminal vehicular homicide when the defendant caused the death of a person by operating a motor vehicle in a negligent manner while under the influence of alcohol. Minn. Stat. § 609.21, subd. 1(2)(i) (1996).

"Operating a motor vehicle in a negligent manner" means to operate without using ordinary or reasonable care. "Operating a motor vehicle while under the influence of alcohol" means operating the motor vehicle when ability or capacity to operate was impaired by alcohol.

10 Minnesota Practice, CRIMJIG 11.26 (1990).

There is no defined level of alcohol concentration at which a driver is presumed to be under the influence of a controlled substance. State v. Hegstrom, 543 N.W.2d 698, 702 (Minn. App. 1996), review denied (Minn. Apr. 16, 1996). Expert testimony regarding retrograde extrapolation, which is the process for determining the defendant's alcohol concentration at the time of the accident, is admissible to prove the defendant was under the influence of alcohol at the time of the accident. State v. Jensen, 482 N.W.2d 238, 240 (Minn. App. 1992), review denied (Minn. May 15, 1992). An alcohol concentration of 0.04 or more is relevant evidence of driving under the influence. Minn. Stat. § 169.121, subd. 2(b) (1996).

In this case the record shows that Bestick: (1) purchased and drank alcohol prior to driving his car; (2) had a history of syncope; (3) had an episode of syncope within two to three hours before the accident; (4) called his doctor to inquire about the episode; and (5) was previously warned by his doctor to avoid driving while he had episodes of syncope. Furthermore, retrograde extrapolation established that Bestick's alcohol concentration at the time of the accident was between 0.04 and 0.18. Kraayenbrink testified he smelled alcohol inside Bestick's car, a hospital report indicates Bestick smelled of alcohol approximately 30 minutes after the accident, and Bestick caused the accident that resulted in Aarsvold's death.

Based on this record, the evidence was sufficient to support the trial court's conclusion that Bestick was negligent and under the influence of alcohol at the time of the accident and therefore was sufficient to support the conviction.

2. Bestick also argues the trial court erred in considering information in the complaint when the complaint was not admitted into evidence. The complaint stated:

As the defendant was being treated for injuries at the scene of the collision, St. Cloud Police Sergeant James Feeny noted a moderate to strong odor of alcohol about the defendant.

Sergeant Feeny did not testify at trial and the complaint was not admitted into evidence. The trial court, however, cited the complaint and stated: "Police officers also noticed the smell of alcohol on Defendant at the accident scene."

We must determine whether Bestick was prejudiced by the trial court's citation to the statement in the complaint. Generally, whether the admission of evidence was harmless depends on whether there is a reasonable possibility that wrongfully-admitted evidence significantly affected the verdict. State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). Based on our foregoing analysis, we conclude there was no reasonable possibility that the verdict was significantly affected. There was more than sufficient other evidence to sustain the conviction.

Affirmed.