State v. Bereis, (AC 29763) (Conn. App. 9/29/2009)

• Decision Date: 29 September 2009
• Docket Number: (AC 29763)
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT <I>v.</I> JASMINE F. BEREIS

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STATE OF CONNECTICUT

v. JASMINE F. BEREIS

(AC 29763)

Appellate Court of Connecticut.

Argued May 18, 2009.

Officially released September 29, 2009.

Appeal from Superior Court, judicial district of New London, geographical area number ten, Abrams, J.

Cameron R. Dorman, special public defender, for the appellant (defendant).

Melissa Patterson, deputy assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, and Christa L. Baker, deputy assistant state's attorney, for the appellee (state).

DiPentima, Lavine and West, Js.

Opinion

DiPENTIMA, J.

The defendant, Jasmine F. Bereis, appeals from the judgment of conviction, rendered following a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a.¹ On appeal, the defendant argues that (1) the evidence was insufficient to support her conviction and (2) the trial court improperly admitted into evidence two police reports. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 15, 2005, Don Patterson was working at the Stonington Institute, located on Swantown Hill Road, near Route 2 in North Stonington. At approximately 3:45 p.m., he observed a blue sport utility vehicle travel through the parking lot and collide with a parked vehicle. Patterson was standing approximately fifteen feet from the parking lot and had an unobstructed view of it. He observed the driver of the vehicle stop for a moment and then drive to the far end of the parking lot. As Patterson approached the vehicle, he observed the driver and the passenger, both of whom were female, yelling at each other. After a few minutes, the vehicle left the parking lot. Patterson wrote down the vehicle's license plate number and telephoned the police to report the accident.

Robert Veach, a state police trooper, was on patrol on Route 2 in North Stonington on April 15, 2005. Between 4 and 4:30 p.m., Veach received a call to look for a specific vehicle and license plate number that had been involved in an accident in the Stonington Institute parking lot. Veach then drove eastbound on Route 2 toward the Stonington Institute. While traveling on Route 2, he noticed the vehicle described in the call. As he approached the vehicle, Veach observed two females, one in the passenger seat and one in the driver's seat. The driver, later identified as the defendant, had the key in the ignition and was attempting to start the vehicle, which was not running. The engine was turning over but was not catching and appeared to have been flooded. Veach instructed the defendant to stop trying to start the vehicle and reached in the vehicle to take the key. Both women were emotional, loud and causing a commotion.

The defendant and the passenger exited the vehicle. Veach spoke with the defendant and smelled alcohol on her breath. The defendant was stumbling, and her speech was slurred. She was combative, verbally abusive and was jumping up and down. She stated that she had been drinking but had consumed only a couple of drinks. Veach concluded that that she was intoxicated.

The passenger, who was later identified as Jessica Bereis, the defendant's twin sister, then began moving back and forth between the side of the road and the roadway itself, walking into oncoming traffic. The defendant began breathing heavily, at which point Jessica Bereis informed Veach that the defendant was having an asthma attack. Veach called for medical assistance. He also called for additional officers because Jessica Bereis continued to run into the road, and the defendant was having breathing problems. He told both women to stay off the road, but neither followed his instructions. Veach had planned on giving the defendant field sobriety tests; however, because she was not following his instructions and appeared to be having breathing problems, he concluded that it would be unsafe to administer the tests. Shortly thereafter, C. Peasley, a state trooper,² arrived and was able to prevent Jessica Bereis from running into the road. When an ambulance arrived, the defendant stopped having breathing problems and refused medical attention.

Although the appearance of the two women was almost identical, Veach was able to tell them apart because Jessica Bereis and the defendant were wearing different clothing. Moreover, while Jessica Bereis continued to run into the road, Veach spoke with the defendant, who appeared to be having breathing problems.

On the basis of the defendant's irrational and erratic behavior, the alcohol on her breath, her slurred speech, her difficulty walking and her statement that she had been drinking, as well as his training and experience, Veach determined that the defendant was intoxicated. Veach placed the defendant under arrest and transported her to police barracks. At the barracks, Veach advised the defendant of her Miranda rights³ and the implied consent advisory regarding the intoximeter test,⁴ which performs a chemical analysis of a person's breath,⁵ and afforded her an opportunity to contact an attorney. The defendant refused to take the intoximeter test and refused to sign a notice of rights form indicating that she had been advised of her rights. She also refused to answer questions regarding her medical condition or medications, whether she had consumed any alcoholic beverages or taken any drugs and when she had last eaten.

I

Because the defendant would be entitled to a judgment of acquittal were she to succeed on her claim that the evidence was insufficient to support her conviction, we first address that claim. See State v. Plourde, 208 Conn. 455, 457, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102 L. Ed. 2d 979 (1989). Specifically, the defendant claims that the state failed to prove beyond a reasonable doubt that she was operating a motor vehicle and was under the influence of intoxicating liquor. We disagree.

"The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict." (Internal quotation marks omitted.) State v. Winer, 112 Conn. App. 458, 463, 963 A.2d 89, cert. denied, 292 Conn. 903, 973 A.2d 107 (2009).

Section 14-227a provides in relevant part: "No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both . . . ." Thus, to sustain a conviction under § 14-227a, the state must prove three elements: (1) operation of a motor vehicle, (2) on a public highway or other designated area, (3) while under the influence of intoxicating liquor or drugs.⁶ State v. Walters, 111 Conn. App. 315, 319, 959 A.2d 13 (2008), cert. denied, 290 Conn. 904, 962 A.2d 795 (2009).

A

Our case law provides that "[a] person operates a motor vehicle within the meaning of this statute, when in the vehicle he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle." State v. Haight, 279 Conn. 546, 552, 903 A.2d 217 (2006), quoting State v. Swift, 125 Conn. 399, 403, 6 A.2d 359 (1939). Here, the jury heard evidence that an individual was driving a vehicle bearing a specific license plate number that hit a car in the parking lot of the Stonington Institute and then left the scene. The jury also heard evidence that a short time later, Veach located the same vehicle parked on the side of a nearby road and that the defendant was sitting in the driver's seat with the key in the ignition. The jury therefore reasonably could infer that the defendant had driven the vehicle on a public highway from the Stonington Institute parking lot to the side of the road. See State v. Gordon, 84 Conn. App. 519, 526, 854 A.2d 74 (noting that probative force of evidence not diminished by fact that evidence is circumstantial and that "[i]t is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence" [internal quotation marks omitted]), cert. denied, 271 Conn. 941, 861 A.2d 516 (2004).

In addition, the jury heard evidence that the defendant had the key in the ignition and was attempting to start the vehicle. Veach testified that the engine was turning over but was not catching and appeared to have been flooded. See State v. Haight, supra, 279 Conn. 553 ("The act of inserting the key into the ignition and the act of turning the key within the ignition are preliminary to starting the vehicle's motor. Each act, in sequence with other steps, will set in motion the motive power of the vehicle. . . . Each act therefore constitutes operation of the vehicle . . . ." [Citation omitted; internal quotation marks omitted.]); see also State v. Cyr, 291 Conn. 49, 56-61, 967 A.2d 32 (2009). Although Jessica Bereis testified that she had been driving the vehicle and that the defendant was sleeping in the passenger seat, the jury, as the fact finder, was free to reject this testimony and to credit Veach's testimony that the defendant was in the driver's seat. See State v. Marcisz, 99 Conn. App. 31, 36, 913 A.2d 436 (fact finder had right to reject defendant's testimony that other individual was...