State v. Anderson

565 A.2d 1342, 152 Vt. 297, 1989 Vt. LEXIS 170

• Court: Supreme Court of Vermont
• Decided: August 4, 1989
• Docket: 87-070
• Status: Published

Opinions

Morse, J.

Defendant appeals a jury conviction of driving while under the influence of intoxicating liquor in violation of 23 V.S.A. § 1201(a)(2).¹ We affirm.

On June 4,1986, at about 10:15 p.m., Trooper Lionel Shapiro of the State Police responded to an accident report from his dispatcher. Approximately two minutes later, he arrived at the scene of the alleged “accident,” and observed a car located about fifteen feet off the southbound lane of Interstate 91. There were marks going off the road onto the grass. The car was stopped just in front of a rock ledge. Its engine was off, although the key was in the “on” position, the lights were on, and the car’s defroster fan was running. Defendant, the only occupant, was slumped in the driver’s seat. Trooper Shapiro, who first feared defendant dead, found him to be unresponsive and barely breathing, with saliva drooling out of his mouth. The trooper called an ambulance, which took defendant to the hospital, where he was treated in the emergency room.

After defendant had been treated, and approximately two hours after he was discovered by the trooper, the emergency room doctor allowed Shapiro to speak with defendant and take a breath test. Shapiro, the only witness at trial, testified that he suspected defendant of a DUI offense and took the breath sample for that purpose. The sample indicated an alcohol level of .11 percent. Shapiro also testified that he had smelled a faint odor of alcohol on defendant’s breath while in the vehicle.

After the State presented its evidence, and again after the jury rendered its verdict, defendant moved for a judgment of acquittal, arguing that the evidence was insufficient to support a conviction. The trial court denied the motion.

The sole issue raised by a motion for acquittal under V.R.Cr.P. 29 is “whether the prosecution has introduced evidence fairly and reasonably tending to show the defendant’s guilt, that is, whether the jury on that evidence would be justified in finding guilt beyond a reasonable doubt.” We reiterate that, on appeal, we will view the evidence in the light most favorable to the State, excluding the effect of modifying evidence.

State v. Robillard, 146 Vt. 623, 626, 508 A.2d 709, 711 (1986) (citations omitted) (quoting State v. Poirier, 142 Vt. 595, 599, 458 A.2d 1109, 1111 (1983)). In our view, the evidence presented by the State in this case met this test without difficulty. One merely has to ask, how likely is it that defendant, while sober, drove off the interstate on to the grass, stopping just in front of a rock ledge, leaving the keys in the “on” position, the lights on and the fan running, and only then proceeded to drink until he passed out? The likelihood of this scenario is so remote that the State’s evidence, albeit circumstantial, was more than sufficient to persuade a jury to find defendant guilty beyond a reasonable doubt of the crime charged. See State v. Broe, 146 Vt. 135, 139-40, 498 A.2d 1039, 1042 (1985).

It is well established that guilt may be proved by circumstantial evidence alone. State v. Warner, 151 Vt. 469, 472, 560 A.2d 385, 387 (1989) (Gibson, J.).

The sufficiency of circumstantial evidence to support a conviction is measured against the same standard as all other evidence: it will sustain a conviction if sufficient to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt. In addition, the State is not required to exclude every reasonable hypothesis of innocence in proving a case with circumstantial evidence.

Id. at 472, 560 A.2d at 387 (citations omitted). The circumstantial facts in evidence — the proximity to the highway, the position of the car, the keys, the lights, the fan, and, most important, defendant’s condition at the time he was found and two hours later — together “permit the jury to infer that the intoxicated condition of the defendant was continuous from the time of operation until the time he was discovered by the police.” State v. Willette, 142 Vt. 78, 80, 451 A.2d 821, 822 (1982).²

Affirmed.

1 23 V.S.A. § 1201(a)(2) provides that a person “shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway while ... under the influence of intoxicating liquor.”

2 The cases cited by the dissent are readily distinguishable. In State v. Clark, 130 Vt. 500, 296 A.2d 475 (1972), where this Court upheld a directed verdict for the defendant, there was no evidence of the time of operation of the vehicle. Police had come upon the defendant standing beside his overturned truck. He was intoxicated when the police arrived, but “[e]ntirely lacking in the presentation of the State was any evidence, direct or circumstantial, of the time when the defendant had the accident.” Id. at 503, 296 A.2d at 477 (emphasis added). For all anyone knew in Clark, the defendant could just as well have done his drinking after the accident. State v. Sanford, 118 Vt. 242, 108 A.2d 516 (1954), a case decided under the now-discredited doctrine that the circumstances must exclude every reasonable theory of innocence, can be similarly distinguished. In the present case, there are numerous circumstances from which the jury could infer that defendant did not pull off the road to drink. The facts amply support the inference that defendant was already in a state of inebriation when he pulled off the road and his car stalled.