Opinion
No. C-1181
Decided November 15, 1977.
Respondent was convicted of the offense of driving while her ability was impaired. Certiorari was granted to review the district court's judgment which set aside the conviction of respondent because of the insufficiency of the evidence.
Reversed
1. APPEAL AND ERROR — Evidence — Support — Verdict — Disturb — Prohibited. Where there is competent, material, and relevant evidence to support a verdict, neither the trial court nor the appellate court should disturb the verdict.
2. CRIMINAL EVIDENCE — Substantial — Test — People v. Bennett. The substantial evidence test was announced as the law of Colorado in People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973).
3. DRIVING UNDER INFLUENCE — Verdict — Ability Impaired — Evidence — Support — Conviction Set Aside — Error. Where competent, material and relevant evidence supported the jury verdict of guilty of driving while ability was impaired by use of intoxicating liquor and also satisfied the substantial evidence test, held, under these circumstances, the district court erred in setting aside a conviction on the basis of insufficiency of the evidence.
Certiorari to the District Court of Arapahoe County, Honorable Marvin W. Foote, Judge.
Robert R. Gallagher, Jr., District Attorney, James C. Sell, Deputy, William B. Moody, III, Deputy, Steven R. Polidori, Deputy, for petitioner.
Anderson and Carey, P.C., Robert L. Malman, for respondent.
Certiorari was granted to review the district court's judgment which set aside the conviction of the respondent, Sharon Linn Linn, because of the insufficiency of the evidence.
The respondent was charged with driving under the influence of intoxicating liquor. Section 42-4-1202(1)(a), C.R.S. 1973. A jury of six in the county court heard the evidence and, after being properly instructed, found the respondent guilty of the lesser included offense of driving while ability was impaired. Section 42-4-1202(1)(b), C.R.S. 1973. An appeal was thereafter taken to the district court where the record was reviewed and a dismissal was entered because of insufficient evidence to sustain a conviction for either driving under the influence or driving while ability was impaired.
[1-3] Where there is competent, material, and relevant evidence to support a verdict, neither the trial court nor the appellate court should disturb the verdict. St. Louis v. People, 120 Colo. 345, 209 P.2d 538 (1949). The substantial evidence test was announced as the law of Colorado in People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973). In this case, there was substantial evidence to support the jury's verdict when viewed in the light most favorable to the prosecution.
Accordingly, the judgment of dismissal is reversed, and the case is remanded to the district court with directions to reinstate the judgment and sentence imposed by the trial court.