State v. Shepard

473 N.W.2d 318, 1991 Minn. App. LEXIS 674, 1991 WL 115526

• Court: Court of Appeals of Minnesota
• Decided: July 2, 1991
• Docket: No. C8-90-2287
• Status: Published

Opinions

OPINION

HUSPENI, Judge.

Appellant contends the evidence is insufficient to support a verdict of driving while under the influence of alcohol. The jury acquitted her of driving with an alcohol concentration of .10 or more, but found her guilty of careless driving and driving under the influence of alcohol. We find the evidence insufficient to support her conviction of driving while under the influence and reverse.

FACTS

On November 19, 1989, appellant Leona Faye Shepard and her husband drove their truck to a laundromat in Pine River. Shepard’s father-in-law, who was at the Shepard home all day, testified the couple left home between 2:30 and 3:00 in the afternoon. On the way home from the laundromat, the couple stopped at the American Legion Club for a late lunch. There, they watched a football game and Shepard had a steak sandwich, french fries and two mixed drinks. Shepard and her husband left the American Legion to return home. Shepard testified that about four miles from home, she fell asleep, and when she felt the right tire of the truck go onto the shoulder of the road, she turned sharply to get back on the road. The truck veered across the road into the opposite ditch and rolled on its top. The exact time of the accident is unknown. Shepard and her husband climbed out of the overturned truck and were picked up by a passerby about 15 minutes later and taken home. Shepard’s father-in-law testified that Shepard did not appear or sound drunk when she came home.

Shepard testified that once home she put her husband to bed because he had been complaining of chest pain. Shepard’s father-in-law poured a coffee and whiskey for Shepard to “warm her up.” Shepard testified that after she had been home for about an hour-and-a-half, she called the Cass County sheriff’s office to report the accident. The sheriff’s office told her the deputy would have to call her back. At 7:00 p.m. the deputy returned her call. He told her it would be a while before he could come out to see her. The deputy knew Shepard and later testified that her speech sounded slurred on the phone. Shepard testified she was so shook up she had a number of drinks while she sat and talked with her father-in-law.

After some time, Shepard’s father-in-law drove Shepard to the scene of the accident to gather the laundry which had fallen out of the truck. Between 8:30-8:40 p.m., the deputy arrived at the scene and observed the overturned pickup, the road condition and skid marks on the road. When he talked with Shepard and her father-in-law, he noticed Shepard’s speech was slurred. He drove them to the Shepard residence, where he talked with Shepard about the accident. After ascertaining what had happened, the deputy asked her to take a urine test. The test was taken at 9:09 p.m.

The urine test showed Shepard’s blood alcohol content was .13. The deputy issued her a citation for driving with a blood alcohol concentration of .10 or more. Later, on April 25,1990, a complaint was filed adding the charges of careless driving and driving under the influence of alcohol. On September 27, a jury found Shepard guilty of careless driving and driving under the influence of alcohol. The jury acquitted Shepard of driving with an alcohol concentration of .10 or more.

ISSUE

Was the evidence sufficient to support Shepard’s conviction?

ANALYSIS

Shepard argues that the State failed to show the causal connection between her drinking and the accident and did not prove beyond a reasonable doubt that she was guilty of driving under the influence. Therefore, Shepard maintains the evidence was insufficient and the jury’s verdict should be overturned. We agree. We find no evidence to connect the officer’s observations of Shepard to the time of driving. Therefore, the evidence is insufficient to support the verdict.

To determine the sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict to decide whether a jury could reasonably have found Shepard guilty of the crime charged. State v. Ulvinen, 313 N.W.2d 425, 428 (Minn.1981). The court must determine if the jury

acting with due regard to the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude from the evidence contained in the record that the defendant was guilty of the offense charged.

State v. Dodis, 314 N.W.2d 233, 237 (Minn.1982). Shepard was convicted of violating Minn.Stat. § 169.121, subd. 1(a) (1988). This statute provides:

It is a misdemeanor for any person to drive, operate, or be in physical control of any motor vehicle * * * when the person is under the influence of alcohol.

“Under the influence” means Shepard did not “possess that clearness of intellect and control of [herself] that [s]he otherwise would have.” State v. Graham, 176 Minn. 164, 169, 222 N.W. 909, 911 (1929).

The application of Minn.Stat. § 169.121, subd. 1 must “have the elements of fairness and logic.” State v. Starfield, 472 N.W.2d 143, 145 (Minn.App.1991). Shepard is innocent unless the state proves beyond a reasonable doubt first, that Shepard drove the vehicle, and second, that she was under the influence of alcohol at the time and place in question. See State v. Stark, 363 N.W.2d 53 (Minn.1985) (approving elements and burden of proof in jury instructions). Proof beyond a reasonable doubt is proof which an ordinary prudent person would act upon in most important affairs. State v. Sap, 408 N.W.2d 638, 641 (Minn.App.1987). A reasonable doubt is based upon reason and common sense, not upon whether it is beyond all possibility of doubt. Id.

Not every person who has consumed a beverage containing alcohol and who controls a vehicle falls within the ban or the prohibition of the law. The person unaffected is one who consumes a beverage containing alcohol and is not thereby influenced in the operation of the vehicle. However, if the person’s ability to drive or operate the automobile is lessened or impaired by * * * alcohol, then that person is under the influence of alcohol.

Stark, 363 N.W.2d at 55 (quoting jury instructions with approval).

There is no question that Shepard drove the pickup. Evidence also establishes that Shepard was under the influence of alcohol when the deputy gave her the blood alcohol test at 9:09 p.m., more than two hours after Shepard’s initial call. The evidence, however, does not establish the connection between the two.

The fact that [appellant] was involved in an accident and was later found to be under the influence establishes a sequence of events but provides no time for the sequence.

Dietrich v. Commissioner of Public Safety, 363 N.W.2d 801, 803 (Minn.App.1985). Testimony here shows the officer did not even see Shepard before 8:40 p.m. and did not know when the accident occurred. While the sequence of events suggests proximity in time, “this inference is not sufficient to establish the necessary temporal connection.” Id.

To establish the causal connection, the officer need not actually observe the drinking and driving. State v. Harris, 295 Minn. 38, 42, 202 N.W.2d 878, 880-81 (1972). However, the facts still have to show a sufficient time frame to establish a connection between drinking and driving. Dietrich, 363 N.W.2d at 803. Here, we conclude that the State failed to present evidence sufficient to connect Shepard’s driving with her state of being under the influence of alcohol.

Testimony indicates the accident happened sometime after 3:00 p.m., when the Shepards left their home, and before 7:00 p.m., when Shepard talked with the deputy. Shepard testified she had two drinks with a steak sandwich and fries for lunch at the American Legion Club sometime before the accident. The period of time between drinking and the accident is unknown. No expert testimony in the record indicates the influence or lack of influence of alcohol on a person’s system after or while eating. Nor does the record contain expert testimony regarding the length of time alcohol affects the body before the alcohol is metabolized.

Appellant maintains she fell asleep at the wheel. She testified that while she was familiar with the road, she was driving a new truck and was not familiar with how to maneuver the truck in this type of situation. The deputy testified the road was straight and dry. He noted it was a clear day. Appellant’s father-in-law testified that she did not appear to have been drinking when she came home.

The deputy testified he did not talk with appellant on the phone until 7:00 p.m. Shepard testified she was “so shook up” she had a few drinks before she talked with the deputy about the accident. No one witnessed Shepard’s driving or condition at the time of the .accident. Here, the deputy did not see Shepard until some period of time had elapsed after the accident; a period of time during which, according to Shepard’s uncontradicted testimony, she had a number of drinks.

The jury found Shepard not guilty of driving with a blood alcohol level of .10 or greater. While this finding of not guilty indicates a recognition by the jury that the test was taken more than two hours after any driving by Shepard, we believe that verdict also supports the necessity under the facts of this case, for the State to connect by expert testimony or otherwise, the unobserved driving conduct to the observed (or tested) state of being under the influence of alcohol. The state failed to present any evidence to the jury to connect Shepard’s driving conduct with the officer’s later observations of Shepard under the influence.

It is instructive to contrast two cases. In one, we found the evidence insufficient for conviction, in the other, we found sufficient evidence for conviction.

In State v. Stokes, 354 N.W.2d 53, 55 (Minn.App.1984), the defendant drove his car across the center line, hit a group of mailboxes and went into a ditch. No one observed the accident. A nearby homeowner heard the accident and found Stokes near the “totaled” car. Id. Testimony of the homeowner and a sheriff’s deputy arriving shortly thereafter established that Stokes babbled, smelled of alcohol, was unsteady, had bloodshot eyes and appeared drunk. Id. at 56. Stokes also admitted he was driving, was tired and had had some beer. Id. His story of what happened changed a number of times.

In both Stokes and the instant case, no one witnessed the vehicle going off the road. However, in Stokes, a homeowner heard the accident and talked with Stokes immediately thereafter. In addition, a deputy arrived at the scene within a short time. These contacts with the driver in Stokes made it possible to connect temporally the driving and the observed signs of intoxication. In the instant case, the time of the accident was not determined. Substantial time elapsed, during which Shepard testified she had been drinking, before the deputy talked with her on the phone. While Shepard admitted having two drinks in the afternoon, the evidence does not show what impact, if any, those drinks had upon her at the time of the accident. Unlike Stokes, Shepard never changed her story about what happened.

In State v. Elmourabit, 373 N.W.2d 290, 294 (Minn.1985), the Minnesota Supreme Court affirmed this court’s decision which found insufficient evidence to support a jury verdict of guilt. The supreme court in Elmourabit noted that inferences from circumstantial evidence were in “uneasy equilibrium.” Id. at 293. The evidence showed the defendant was driving 13 miles per hour over the speed limit, his speech was slurred (however, English was not his native tongue), he smelled of alcohol, and he admitted he recently had a bottle of beer and a few sips of another beer. Id. While testimony indicated a lack of coordination, video-taped dexterity tests showed none. Id. The court found Elmourabit to be a “rare exception” in which a jury verdict was overturned because of insufficiency of the evidence. Id. at 294.

Although we recognize that issues of insufficiency of evidence must be determined on the specific facts of each case, we find the case now before this court similar to Elmourabit. In fact, the evidence in Elmourabit is more substantial than this case. In Elmourabit, the officer observed defendant’s driving and actions immediately after stopping. Here, no such evidence exists from the time immediately following Shepard’s accident. We have no testimony from the passerby who drove Shepard home. Shepard’s father-in-law, the witness who first saw Shepard after the accident, stated he saw no signs that she had been drinking.

As in Elmourabit, there is an “uneasy equilibrium” of circumstantial and direct evidence in this case. In response to the testimony set forth in the dissent, the officer’s observation must be evaluated in reference to the fact that he observed her, not at the time of the accident, but several hours later. While the credibility of the witness is left to the fact finder, here we are not looking at credibility. Instead, we focus on whether the circumstantial evidence could reasonably lead to this verdict. We have stated:

Reversal becomes a question of whether the ‘jury could reasonably conclude, under the facts and any legitimate inferences that the defendant was guilty.’

State v. Larson, 429 N.W.2d 674, 675 (Minn.App.1988) (quoting State v. Langley, 354 N.W.2d 389, 395 (Minn.1984)), pet. for rev. denied (Minn. Nov. 8, 1988).

Although circumstantial evidence is not required to exclude every other theory, it must outweigh any conflicting inferences in order to support a verdict. Martelle v. Thompson, 283 Minn. 279, 283, 167 N.W.2d 376, 379 (1969). A conclusion based on an inference, without the evidence to support that inference, is merely conjecture. Truesdale v. Friedman, 270 Minn. 109, 127, 132 N.W.2d 854, 866 (1965) (citations omitted). The State is required to present more than conjecture, speculation or suspicion. Martelle, 283 Minn. at 283, 167 N.W.2d at 379. Conjecture is insufficient to support an affirmative verdict. Smith v. Kahler Corp., 297 Minn. 272, 276, 211 N.W.2d 146, 149 (1973).

We conclude that the State did not prove beyond a reasonable doubt that Shepard drove while she was under the influence of alcohol. The evidence here is: a positive alcohol concentration test taken at 9:09 p.m., more than two hours after Shepard initially talked to the deputy on the phone; a 7:00 p.m. phone conversation in which Shepard reported the accident and indicated it occurred about an hour-and-a-half earlier; a rolled vehicle; and Shepard’s acknowledgment that she had two drinks with her late lunch sometime after 3:00 p.m. What happened and when the truck rolled is unclear. Shepard maintains she fell asleep. The evidence on the record provided no basis for the jury to connect the officer’s delayed observations of Shepard to the time she drove her vehicle. Because the jury’s verdict appears to be based on conjecture, we view the evidence insufficient to support the verdict.

DECISION

The State failed to prove the causal connection between Shepard’s drinking and driving under the influence. The circumstantial evidence presented is insufficient to prove beyond a reasonable doubt that Shepard was guilty of driving under the influence.

Reversed.