Opinion
No. 109-81
Opinion Filed June 8, 1982
1. Appeal and Error — Motion for Judgment of Acquittal — Tests on Review
In passing on a denial of motion for judgment of acquittal, supreme court is required to review the evidence in the light most favorable to the state and determine whether that evidence fairly and reasonably tends to support the defendant's guilt beyond a reasonable doubt. V.R.Cr.P. 29.
2. Motor Vehicles — Operation Under the Influence — Particular Cases
Trial court properly denied defendant's motion for a judgment of acquittal in a prosecution for driving while intoxicated, where the evidence of speeding, slurred speech, bloodshot eyes, smell of alcohol on breath, difficulty in performing a field sobriety test, abusive behavior, and refusal to submit to an alcohol breath test on two occasions, fairly and reasonably supported the jury's finding of guilt beyond a reasonable doubt.
Appeal by defendant from conviction of driving while intoxicated. District Court, Unit No. 2, Chittenden Circuit, Costello, J., presiding. Affirmed.
Mark J. Keller, Chittenden County State's Attorney, and Thomas Fitzpatrick, Law Clerk (On the Brief), Burlington, for Plaintiff.
Paul D. Jarvis of Blum Associates, Inc., Burlington, for Defendant.
Present: Barney, C.J., Billings, Hill, Underwood and Peck, JJ.
This is an appeal from a conviction, after trial by jury, of driving while intoxicated in violation of 23 V.S.A. § 1201(a)(2). Defendant's sole claim on appeal is that the trial court erred in denying his motion for judgment of acquittal.
In passing on the denial of a V.R.Cr.P. 29 motion for judgment of acquittal, we are required to review the evidence in the light most favorable to the State. State v. Driscoll, 137 Vt. 89, 100, 400 A.2d 971, 978 (1979); State v. Girouard, 135 Vt. 123, 135, 373 A.2d 836, 840 (1977). The pivotal issue is then whether that evidence fairly and reasonably tends to support the defendant's guilt beyond a reasonable doubt. Id. We believe that it does.
On December 1, 1980, defendant's automobile was stopped by a South Burlington police officer for exceeding the posted speed limit by some eighteen miles per hour. The officer testified that defendant's speech was slurred, his eyes were bloodshot, and his breath smelled strongly of alcoholic beverage. Moreover, the evidence establishes that defendant had difficulty performing a so-called field sobriety test, became abusive when arrested for driving while intoxicated, and twice refused to submit to an alcohol breath test. Defendant introduced evidence attempting to show that he had consumed only a small amount of beer and that his appearance and physical reactions were attributable to long hours of painting without protective eye cover.
Essentially, defendant asks this Court to substitute its judgment for that of the jury which heard the testimony and had the opportunity to judge the credibility of the witnesses. This we will not do. After thoroughly reviewing the record, we are convinced that the State's evidence fairly and reasonably supports the jury's finding of guilt beyond a reasonable doubt. State v. Baldwin, 140 Vt. 501, 516, 438 A.2d 1135, 1143 (1981); State v. Driscoll, supra. Accordingly, we find no error in the denial of defendant's motion for judgment of acquittal.
Judgment affirmed.