Lewallen v. State, 4424
| Decision Date | 28 May 1975 |
| Docket Number | No. 4424,4424 |
| Citation | 536 P.2d 148 |
| Parties | Tim Mark LEWALLEN, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Richard G. Miller, Casper, for appellant.
David B. Kennedy, Atty. Gen., Fred C. Reed, Deputy Atty. Gen., Cheyenne, and Melvin Okamoto, Senior Law Student, Laramie, for appellee.
Before GUTHRIE, C. J., and McCLINTOCK and THOMAS, JJ.
Tim Mark Lewallen appeals from his conviction of driving while under the influence of intoxicating liquor entered in the District Court of Natrona County, Wyoming. The appellate brief expressly disclaims any attack upon the finding of intoxication and claims only that there is no proper proof that defendant did drive any motor vehicle within the state while so intoxicated. The facts were as follows. 1
On October 13, 1973 Richard Timperley, a Wyoming highway patrolman was called from his home at approximately 2:25 a. m. to go to the scene of an accident on West Yellowstone near Casper. As he was traveling west on the bypass he observed a car sitting on the eastbound lane with the headlights on. He stopped, observed a person sitting or slumped over the wheel, went to check, and found the appellant. Officer Timperley, for his own protection, believing the defendant might have been 'playing possum' with intent to do him harm, kicked the door in an attempt to arouse the defendant. When the appellant could not be aroused Officer Timperley opened the door. After opening the door he failed to arouse appellant. Officer Timperley observed that the defendant was alive, breathing and warm, the headlights were on, the motor was running, and the transmission was in park. To avoid the possibility that appellant might leave or hurt himself, Officer Timperley removed the keys, shut off the headlights, leaving the park lights on, locked the doors to the vehicle, and went on to the scene of the accident. All of this occurred approximately one minute before 2:39 a.m.
After investigating the accident and returning to the police department, Officer Timperley left the police department at 3:36 a. m., arrived back at appellant's vehicle, and called in the license number at 3:41 a. m. The first time the officer stopped at appellant's vehicle, on the way to investigate the accident, he detected a very strong odor of a type ordinarily associated with intoxicating beverages. Upon his return, after investigating the accident, Officer Timperly had to literally pick up appellant inasmuch as he was not capable of standing on his own and offered no resistance whatsoever. Officer Timperley asked appellant if he had been drinking, where he had been drinking, and whether or not he was alone, to which the defendant responded he had been to a party and he had taken everyone home, but he was not very conversant, reciting just bare basic answers. The defendant spoke very little and his words were mumbled and muttered. Just prior to leaving the scene Officer Timperley again asked appellant if he was alone, to which he answered, 'Did everybody else go home?' The defendant was given the implied consent warning, submitted to the test, and the results of the test revealed a blood alcohol content of .10. The test was given between 3:50 and 3:55 a. m. October 13, 1973.
Upon this record appellant contends that the evidence as to driving the automobile is entirely circumstantial and that in such case, under the authority of State v. Paulas, 74 Wyo. 269, 286 P.2d 1041 (1955), and Mulligan v. State, Wyo., 513 P.2d 180 (1973), not only is it necessary to show that the circumstances all concur to show that the defendant committed the crime, but the circumstances must all be inconsistent with any other rational conclusion. Without repudiation or denigration of this principle we hold that the trial court under the facts of this case was justified in finding that no other rational inference could be drawn from the evidence, and affirm the conviction.
In doing so we find ample support for our position from other states, the most recent decision being State v. Fuchs, N.D., 219 N.W.2d 842 (1974), where the facts were briefly as follows (219 N.W.2d at 845):
'* * * Fuchs was found sitting in the driver's seat at the wheel of the vehicle, with the engine running, the headlights and brake lights on, the car doors locked, and with no other person in proximity * * *.'
The court referred to previous decisions 2 bearing on circumstantial evidence, which holdings we interpret to be much in line with our statements in Paulas and Mulligan, that is, that the evidence must exclude every reasonable hypothesis of innocence, but also that the appellate court does 'not substitute our judgment for that of the jury or trial court where the evidence is conflicting, if one of the conflicting inferences reasonably tends to prove guilt and fairly warrants conviction.' The court continued (219 N.W.2d at 846):
'In the instant case, we believe that the evidence...
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Blakely v. State, 4501
...with the guilt of the accused but it must be inconsistent with any other rational conclusion.' We adhered to this rule in Lewallen v. State, Wyo., 536 P.2d 148 (1975). I construe the majority opinion as holding that we will no longer apply this rule but will 'whether there is substantial ev......
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Johnson v. State, 4645
...proper to allow the case to go to the jury and we will not substitute our judgment for that of the jury as fact finders, Lewallen v. State, Wyo., 536 P.2d 148, 150; State v. Koch, 64 Wyo. 175, 189 P.2d 162, ILLEGAL SEARCH AND SEIZURE Although in this case no motion to suppress any of these ......
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...weigh the testimony nor evaluate credibility. Fitzgerald v. State, Wyo., 601 P.2d 1015 (1979); Tucker v. State, supra; Lewallen v. State, Wyo., 536 P.2d 148 (1975). Our responsibility in considering the propriety of a ruling on a motion for judgment of acquittal is the same as that of the t......