This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C9-98-2042

State of Minnesota,
Respondent,

vs.

Mark Delbert Manthey,
Appellant.

Filed August 24, 1999
Affirmed
Crippen, Judge

St. Louis County District Court
File No. K298600112

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

William P. Dinan, City Attorney, Mary E. Asmus, Assistant City Attorney, 410 City Hall, Duluth, Minnesota 55802 (for respondent)

John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

Appellant challenges his DUI conviction, arguing that there is insufficient evidence that he drove or operated a motor vehicle. Finding the evidence sufficient to support the conviction, we affirm.

FACTS

On February 10, 1998, appellant Mark Manthey and his girlfriend, Ruth Littlewounded, were celebrating his birthday. Appellant drove his car to the west end of Duluth, where appellant parked the car and he and Littlewounded walked to a series of nearby bars. Because appellant got into an altercation with a second woman, Faye Wenell, appellant and Littlewounded chose to leave the area. They got into appellant's car and proceeded to drive away. Appellant claims that Littlewounded was driving at this point. Appellant and Littlewounded did not get far, stopping the car in the center of an alley behind one of the bars.

Bar patrons entered the alley upon a report that a woman was being assaulted in the alley. A bar patron, Nathan Opland, saw appellant in the alley, near the car. The patron then saw appellant climb into the driver's seat of the car. Littlewounded was seated in the passenger seat at this time and the second woman, Faye Wenell, was lying on the ground near the car. Opland, thinking that appellant was going to drive away, smashed through the driver's-side window and demanded the car keys. Appellant handed him the keys. Police officers arriving at the scene found appellant in the driver's seat and Littlewounded in the passenger seat. The car was not running, the lights were not on, and Opland had the keys, which he turned over to police.

Appellant was charged with driving while intoxicated, and a jury found him guilty.

D E C I S I O N

In reviewing the sufficiency of the evidence supporting a conviction, an appellate court is limited to a painstaking analysis of the evidence of record, viewed in a light most favorable to the conviction, to determine whether the jury, having due regard for the need to overcome the presumption of appellant's innocence by proof beyond a reasonable doubt, could reasonably conclude that appellant was guilty. State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997). A 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).

A jury found appellant guilty of violating Minn. Stat. § 169.121, subd. 1(a) (1996), which provides that it is a crime for any person to "drive, operate, or be in physical control" of any motor vehicle when the person is under the influence of alcohol. Appellant claims there was not sufficient evidence to allow the jury to find that he drove or operated the car. In support of this claim, appellant points to his testimony, and that of Littlewounded, that Littlewounded drove the car from the parking space to the alley. Appellant also notes that patrons and officers arriving at the scene only saw appellant sitting in the driver's seat when the car was not running.

But there was also a litany of evidence suggesting that appellant drove the car into the alley. It was undisputed that the car belonged to appellant, that he had been driving it earlier in the evening, that Littlewounded was feeling a "little sick" that day, and that patrons and officers entering the alley found appellant in the driver's seat and Littlewounded in the passenger seat. Directly to the point, appellant made a series of admissions that counter his argument on appeal.

Officer Michael LaFontain, who questioned appellant at the scene, testified that appellant admitted putting his car into park, getting out, going over to the passenger side, pulling Wenell off Littlewounded, throwing Wenell to the ground, and then getting back in his car. At trial, LaFontain was asked, "Did [appellant] make any comments to you that would--that would that were direct admissions that he was in the driver's seat?" LaFontain answered, "I, at one point during the interview I asked him if he was driving the vehicle and he stated he was." Given the admissions made by appellant and the circumstances of the case already stated, a jury could have reasonably found that appellant drove or operated a motor vehicle while under the influence of alcohol.

Without elaboration, appellant cites Minn. Stat. § 634.03 (1998) for the proposition that "[a] confession of the defendant shall not be sufficient to warrant conviction without evidence that the offense charged has been committed." But this statute does not go to admissions of activity, such as driving in this instance, that is not criminal in itself. See State v. Smith, 264 Minn. 307, 313, 119 N.W.2d 838, 843 (1962) (noting that a confession involves the idea of criminality, applicable only to a direct or implied acknowledgment of guilt but not extending to admissions of fact that in themselves are innocent and involve no criminal intent). Moreover, the record includes ample circumstantial and eyewitness testimony to corroborate appellant's admission that he drove the car.

Affirmed.