People v. Mersman, No. 04CA0414.

• Decision Date: 09 March 2006
• Docket Number: No. 04CA0414.
• Citation: 148 P.3d 199
• Parties: THE PEOPLE OF THE STATE OF COLORADO, Plaintiff-Appellee, v. Gary Dean MERSMAN, Jr., Defendant-Appellant.
• Court: Colorado Court of Appeals

148 P.3d 199

THE PEOPLE OF THE STATE OF COLORADO, Plaintiff-Appellee, v. Gary Dean MERSMAN, Jr., Defendant-Appellant.

No. 04CA0414.

Colorado Court of Appeals. Division III.

March 9, 2006.

As Modified on Denial of Rehearing May 11, 2006.

Certiorari Denied November 20, 2006.^*

John W. Suthers, Attorney General, Clemmie Parker Engle, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Ned R. Jaeckle, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

TAUBMAN, J.

Defendant, Gary Dean Mersman, Jr., appeals the judgment of conviction entered on a jury verdict finding him guilty of aggravated driving with a revoked license, driving under the influence of alcohol, and driving under restraint. We affirm in part, vacate in part, and remand with directions to correct the mittimus.

In August 2003, Mersman borrowed a friend's vehicle to visit his ex-girlfriend, G.D. At the time, G.D. lived in a mobile home owned by R.H.

When Mersman arrived at R.H.'s mobile home, G.D. ran out and sat in the vehicle with him. While seated in the vehicle, Mersman and G.D. emotionally discussed their relationship, cried, and shouted at each other. Alarmed, R.H. called the police.

Deputies Rowell and Sorenson responded to the disturbance call and found Mersman sitting in the driver's seat of the vehicle. Both deputies noticed physical indicators that Mersman had been drinking alcohol, such as watery, bloodshot, glazed eyes; faint to moderate odor of alcoholic beverage; and moderately slurred, "thick-tongued" speech. Mersman refused to take a chemical test of his breath or blood to determine blood alcohol content, even after being advised that his refusal would cause the loss of his license for one year under the state's express consent law.

In October 2003, a jury convicted Mersman of aggravated driving after revocation prohibited (DARP), driving under the influence of alcohol (DUI), and driving under restraint (DUR). This appeal followed.

I. Sufficiency of Evidence

Mersman contends that the trial court erred in not granting his motion for judgment of acquittal because the prosecution did not present sufficient evidence to establish beyond a reasonable doubt that he was under the influence of alcohol at the time of his arrest. Because the DARP and DUI charges required the prosecution to prove beyond a reasonable doubt that he was driving a motor vehicle under the influence of alcohol, Mersman argues that his convictions for these two charges must be reversed. We disagree.

The Due Process Clauses of the United States and Colorado Constitutions prohibit criminal conviction except on proof of guilt beyond a reasonable doubt on each of the essential elements of a crime. People v. Noland, 739 P.2d 906 (Colo.App.1987). Proof beyond a reasonable doubt is proof that would lead a reasonable person to act without hesitation in matters of importance to himself or herself. People v. Noland, supra.

When deciding a motion for judgment of acquittal, the trial court must determine whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable person that the defendant is guilty of the charges beyond a reasonable doubt. People v. Ned, 923 P.2d 271 (Colo.App.1996).

The DARP statute requires the prosecution to prove beyond a reasonable doubt that the defendant was driving a motor vehicle while under the influence of alcohol. Section 42-2-206(1)(b)(I)(A), C.R.S.2005. The DUI statute contains the same requirement. Section 42-4-1301(1), C.R.S.2005.

"Driving under the influence" is defined as:

driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

Section 42-4-1301(1)(f), C.R.S.2005.

Under § 42-4-1301(6)(d), C.R.S.2005, it is proper to instruct a jury that it can consider a driver's refusal to take a blood or breath test, along with other evidence, in determining his or her guilt of driving under the influence. Cox v. People, 735 P.2d 153 (Colo. 1987).

Both parties agree that whether facts similar to those presented here are sufficient to constitute proof beyond a reasonable doubt that an individual was driving under the influence of alcohol is an issue of first impression in Colorado.

Nevertheless, Mersman relies on People v. Reynolds, 895 P.2d 1059 (Colo.1995), and People v. Roybal, 655 P.2d 410 (Colo.1982), in support of his contention that the prosecution did not present sufficient evidence that he drove under the influence of alcohol on the night he visited G.D. He argues that because the supreme court did not find probable cause in Reynolds and Roybal that the defendants there drove under the influence of alcohol, a fortiori, he could not have been under the influence of alcohol, because "probable cause" is a lower standard than "beyond a reasonable doubt" and the evidence of impairment in those cases was equivalent to or greater than the evidence presented here. We disagree.

In Reynolds, the defendant was involved in a one-car accident with no witnesses, and he admitted to the police that he had consumed three beers more than six hours before the accident. There, the court found that those facts did not establish probable cause that the defendant had been driving under the influence of alcohol.

The Reynolds court based its decision on the arresting officer's testimony that the defendant did not present any of the familiar signs of intoxication, such as odor of alcohol, bloodshot eyes, or slurred speech. Here, between them, deputies Rowell and Sorenson testified to having observed all three of these indicators.

In Roybal, the defendant was involved in an accident with another vehicle. At the suppression hearing, the responding officer testified that when he arrived at the scene of the accident, the defendant admitted he was the driver of one of the vehicles. The officer also testified that the defendant had an odor of alcoholic beverage about him. The court found that these factors did not establish probable cause that the defendant had been driving under the influence of alcohol, noting that odor of alcoholic beverage is not inconsistent with the ability to operate a motor vehicle in compliance with Colorado law. People v. Roybal, supra, at 413.

However, the Roybal court expressly stated that its decision was also based on several other circumstances. First, the record was devoid of evidence that the collision occurred as a result of misconduct by the defendant. Second, the responding officer testified that he did not observe any common indicia of intoxication in the defendant's speech, walk, and ability to understand. People v. Roybal, supra, 655 P.2d at 413.

Here, Mersman exhibited these common indicia of intoxication (watery eyes that were becoming bloodshot and mild to moderately slurred speech) in addition to having a faint odor of alcoholic beverage about him. Furthermore, Mersman refused to submit to a blood alcohol or breathalyzer test, whereas the defendant in Roybal did not.

The prosecution argues that Mersman's common signs of intoxication and refusal to take the field sobriety and blood alcohol tests constitute sufficient evidence to prove that he drove the vehicle to visit G.D. while under the influence of alcohol. In support of its contention, the prosecution relies on the following decisions from other jurisdictions: Long v. State, 271 Ga.App. 565, 610 S.E.2d 74 (2004) (evidence sufficient where defendant smelled of alcohol, had bloodshot eyes, and refused to submit to field sobriety tests); Merrell v. State, 192 Ga.App. 100, 383 S.E.2d 905 (1989) (evidence sufficient where defendant exhibited smell of alcohol, red eyes, slurred speech, and unsteadiness on his feet and refused a blood alcohol test); State v. Jordan, 599 A.2d 74 (Me.1991) (evidence sufficient where defendant admitted that he had been drinking, exhibited difficulty in speaking and walking, had bloodshot eyes, smelled strongly of alcohol, refused to undergo field sobriety tests, and refused to take blood alcohol test).

While we acknowledge that the statutory language in these jurisdictions is different from that in Colorado, we conclude that the factual situations are sufficiently similar to offer guidance in evaluating the evidence in the present case. Here, as in the cases cited by the prosecution, Mersman exhibited common indicia of intoxication, and he refused to take chemical blood alcohol and breath tests.

Thus, viewing all the evidence in the light most favorable to the prosecution, we conclude it was sufficient to support Mersman's conviction. Accordingly, the trial court did not err in denying Mersman's motion for judgment of acquittal on the DARP and DUI charges.

II. Mittimus

Mersman contends, the People concede, and we agree that the mittimus should be corrected to reflect the merger of the DUI conviction into the DARP conviction and that his DUI conviction should be vacated.

Driving under the influence is a lesser included offense of aggravated driving with a revoked license. People v. Carlson, 119 P.3d 491 (Colo.App.2004). Merger principles preclude conviction for a lesser included offense of a crime for which the defendant has also been convicted in the same prosecution. People v. Carlson, supra. Accordingly, the mittimus must be corrected to reflect the merger of the DUI conviction into the DARP conviction, and Mersman's DUI conviction must be vacated.

III. Mistrial

Mersman contends that the trial...