Opinion
No. C4-98-165.
Filed January 12, 1999.
Appeal from the District Court, St. Louis County, File No. KX97100561.
Michael A. Hatch, Attorney General, and
Michael K. Kearney, (for respondent)
John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant Marjorie Josephine McCavic challenges her convictions of aggravated driving under the influence of alcohol, hit and run, and refusal to submit to testing. We disagree that the evidence is insufficient to sustain the convictions and that the district court erred in admitting evidence that she stated she would not submit to blood-alcohol testing, and we affirm.
FACTS
On April 16, 1997, appellant hit a parked car as she drove near her home in Virginia, Minnesota. She left the scene, drove into an alley behind her house, and parked in her garage. A police officer saw appellant cross the center line as she backed away from the parked car, and he saw her drive into the alley. He entered appellant's garage, where he found her sitting behind the steering wheel of her car. Because appellant's appearance and actions made the officer suspect she was intoxicated, he took her to the police station where he read her an implied consent advisory and asked if she would submit to blood-alcohol testing. She refused.
Appellant was charged with aggravated driving under the influence of alcohol, driving under the influence of alcohol, driving after revocation, hit and run, refusal to submit to testing, and obstruction of legal process. At trial, the state submitted, without objection by appellant, the copy of the implied consent advisory form that the officer read to appellant, which bore a notation that she had refused to submit to blood-alcohol testing. A jury found appellant guilty on five of the six charges. She challenges the convictions of aggravated driving under the influence, hit and run, and refusal to submit to testing. DECISION
Because of the issues appellant raises in this appeal, we consider that she has appealed as well from the driving under the influence conviction.
I.
Where there is a challenge to the sufficiency of the evidence, appellate review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.
State v. Webb , 440 N.W.2d 426, 430 (Minn. 1989) (citation omitted); see State v. Alton , 432 N.W.2d 754, 756 (Minn. 1988) (stating test is whether jury "could reasonably conclude that a defendant was proven guilty"). This court must view the evidence in a light most favorable to the state and must assume that the jury believed the state's witnesses and disbelieved contradictory evidence. State v. Moore , 438 N.W.2d 101, 108 (Minn. 1989).
Appellant argues there was insufficient evidence to prove she was guilty of aggravated driving under the influence of alcohol under Minn. Stat. § 169.129 (1996). To prove the offense, the state had to show that while appellant's license was cancelled, suspended, revoked, or denied, she violated section 169.121, which prohibits driving, operating, or physically controlling a motor vehicle while under the influence of alcohol. See Minn. Stat. § 169.129 (providing elements of offense). Appellant does not deny that her license was revoked, but she claims that the state failed to prove that she was driving under the influence of alcohol, citing State v. Elmourabit , 373 N.W.2d 290 (Minn. 1985).
In Elmourabit , there was evidence that when the defendant was stopped for speeding, the arresting officer noticed the defendant's eyes were glassy and bloodshot. Id. at 293. But the evidence also showed that the defendant had not driven erratically and had passed dexterity tests. Id. Based on the conflicting evidence of intoxication, the court concluded that there was insufficient evidence to support a conviction of driving under the influence of alcohol. Id. at 294.
Here, the state presented abundant evidence that appellant was driving under the influence. A witness testified that appellant hit a parked car. The arresting officer testified that he saw appellant back away from the parked car and drive into an alley and that when he found appellant behind the steering wheel of her car in her garage, her eyes were bloodshot, watery, and glassy and her breath had a strong odor of alcohol. The officer also testified that appellant's speech was slurred, that she was unsteady on her feet, and that she failed the horizontal gaze nystagmus test. There was sufficient evidence for the jury to find that appellant was driving under the influence of alcohol and, because her license was revoked, that she was guilty of aggravated driving under the influence of alcohol.
In a pro se supplemental brief, appellant argues that there also was insufficient evidence that she committed a hit-and-run violation. But there was an eyewitness to the accident, and photographs in evidence show there was blue paint on the front of appellant's silver car in the area where it was damaged and that the parked car that was hit was blue. Appellant argues that the arresting officer prevented her from returning to the scene of the accident by detaining her in the garage. But at trial the officer testified that when he found appellant, she was sitting motionless in her car; she was not attempting to return to the accident scene. There was sufficient evidence for the jury to conclude that appellant hit a parked car and then left the scene.
II.
Appellant argues that because of erasure of the videotape that showed the reading of the implied consent advisory to her and her responses to the officer's questions, the district court erred in admitting evidence that she refused to submit to blood-alcohol testing. But appellant did not object to the admission of the evidence at trial; she may not, therefore, object to its admissibility now. See State v. Folkert , 354 N.W.2d 583, 585 (Minn.App. 1984) ("`Where allegedly improper or prejudicial evidence has been admitted without objection, a party may not object to its admissibility for the first time * * * on appeal.'") (citation omitted).
In any event, the evidence of appellant's refusal to submit to testing is admissible. Minnesota law requires that all custodial interrogation * * * and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.
State v. Scales , 518 N.W.2d 587, 592 (Minn. 1994). The reading of an implied consent advisory is not a custodial interrogation that triggers the Scales recording requirement. State v. Lopez , 538 N.W.2d 705, 706-07 (Minn.App. 1995); State v. Gilmartin , 535 N.W.2d 650, 652 (Minn.App. 1995) (citing South Dakota v. Neville , 459 U.S. 553, 564 n. 15, 103 S.Ct. 916, 923 n. 15 (1983)), review denied (Minn. Sept. 20, 1995).
Arguing that the reasoning of the foregoing precedent is flawed, appellant invites the court to reconsider the cases and reach a different result. We decline to do either. Scales does not require that the police videotape the reading of an implied consent advisory. The district court did not err in admitting evidence of appellant's statement that she refused to submit to blood-alcohol testing.