State v. Lewandowski, 16984

• Decision Date: 18 September 1990
• Docket Number: No. 16984,16984
• Citation: 463 N.W.2d 341
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Keith M. LEWANDOWSKI, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 341

463 N.W.2d 341

STATE of South Dakota, Plaintiff and Appellee, v. Keith M. LEWANDOWSKI, Defendant and Appellant.

No. 16984.

Supreme Court of South Dakota.

Considered on Briefs Sept. 18, 1990.

Decided Nov. 21, 1990.

Jeffrey P. Hallem, Asst. Atty. Gen., Roger A. Tellinghuisen, Atty. Gen., on brief, Pierre, for plaintiff and appellee.

William E. Coester, Milbank, for defendant and appellant.

MILLER, Chief Justice.

This is an appeal from the circuit court's order affirming defendant's magistrate court conviction for driving under the influence of alcoholic beverages, second offense. We affirm.

FACTS

Adeline and Bill Birchem live thirteen miles east of Sisseton, South Dakota. Their home, which was formerly known as the Rock Island Resort, is located by Lake Traverse on Roberts County Highway No. 7. On January 6, 7 and 8, 1989, there was a blizzard in Roberts County.

On Sunday, January 8, Adeline noticed a pickup truck in her yard, stuck in a snowbank. It appeared to the Birchems that the pickup was driving back and forth trying to get onto the nearby lake. Defendant, who was operating the pickup, came to Birchems' house, in an apparent attempt to get help. The Birchems did not let him into the house because the snow prevented them from opening the doors. (The snow at that time was about knee high.) However, Bill visited with defendant through the door. Defendant ultimately crawled back to his pickup and Bill made a call to the Roberts County Sheriff's Office. Thereupon, the dispatcher contacted Sheriff Neal Long and advised him that a possible drunk driver was stuck in a snowbank at the Birchem residence.

Upon his arrival at the scene, Sheriff Long saw that defendant was in the pickup, the motor was running, the wheels were spinning and the vehicle was moving, in an apparent attempt to get out of the snowbank. (The pickup appeared to be in a snowbank about three feet high.) Sheriff Long testified that he noticed defendant's tire tracks coming off Highway 7, going into a snowbank, then backing up, going ahead a few times, and then getting stuck in the next snowbank. Further, those were the only tracks that the sheriff noticed. Sheriff Long testified that the only way one could get into Birchems' yard would be to come off from Highway 7.

Sheriff Long approached the pickup, took the keys out and grabbed a twelve-pack of beer and one open container out of the cab. Long smelled a strong odor of alcoholic beverages on defendant's breath, observed that defendant had bloodshot eyes, was thick tongued, "had a mush mouth and staggered." No field sobriety tests were given. At that point, defendant was arrested for DUI and taken to the sheriff's office.

Upon arrival at the sheriff's office, defendant explained to Sheriff Long that he had started from home. He later changed his story and said he had been at the Circle K Resort. (The Circle K Resort is south of Birchems' residence on Highway 7.) Sheriff Long asked defendant if he had been drinking and he replied "Yeah, Yeah, I guess I have." In response to a question about the amount he had drank, defendant responded "Too much." Later, defendant was videotaped, read his implied consent rights and asked if he would consent to a blood test. Defendant consented and was taken to the hospital. After the blood sample was taken, ¹ defendant was returned to the sheriff's office, read his Miranda rights and Sheriff Long attempted to interrogate defendant. He was again videotaped.

Defendant was charged with driving under the influence, second offense. He pleaded not guilty and the case went to trial before a magistrate court jury. At trial, after the State rested, defendant moved for judgment of acquittal on the grounds that State failed in its burden of proving beyond a reasonable doubt that defendant was guilty of the offense charged, principally arguing a lack of proof that he had been on the highway alleged. In rebuttal, State argued that it was a fact question for the jury because there was adequate circumstantial evidence. The magistrate agreed and denied the motion.

Defense counsel then made his opening statement, indicating that the defense would attempt to show that defendant appeared much more intoxicated in the second videotaped session (after he had returned from the hospital) than he had in the first videotape (when defendant was asked to submit to a blood test). The defense theory was that the jury could therefore conclude that at the time defendant was driving he was not under the influence of alcoholic beverages. During the defense's case, the videotape was marked and admitted into evidence and subsequently shown to the jury. However, it contained only one segment of defendant (the first session). The second session, which was taken after defendant had returned from the hospital, was not on the tape. The tape had been in the sheriff's possession the entire time. Sheriff Long testified that he did not know what happened to the second portion.

The jury subsequently convicted defendant. He appealed to circuit court pursuant to SDCL ch. 15-38. Defendant submitted his initial brief on November 7, 1989. State's brief was served upon defendant's attorney on the 22nd day of December, 1989. The circuit court issued its memorandum opinion on December 27, 1989, before defendant filed a reply brief. The circuit court affirmed defendant's conviction. Defendant appeals.

ISSUE I

WHETHER THE CIRCUIT COURT ERRED IN ISSUING ITS MEMORANDUM

DECISION BEFORE DEFENDANT HAD AN OPPORTUNITY TO

FILE HIS REPLY BRIEF.

Defendant argues that the circuit court erred in issuing its memorandum decision before he had an opportunity to file his reply brief, contra to SDCL 15-38-37. ² We agree that the trial court did not strictly follow the statute, but believe that any error was harmless. "Prejudicial error is that which, in all probability, has produced some effect upon the final result and to have affected the rights of the party assigning that error." State v. Hansen, 407 N.W.2d 217, 219 (S.D.1987).

Here, the circuit court was acting on appeal, making legal determinations. Since this court is also reviewing those determinations, we find no prejudicial error.

ISSUE II

WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE

CONVICTION.

In determining the sufficiency of the evidence on appeal, the question presented is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt. In making this determination, this court will accept that evidence, and the most favorable inferences that can be fairly drawn therefrom which will support the verdict. State v. Huettl, 379 N.W.2d 298, 301 (S.D.1985) (citing State v. Braun, 351 N.W.2d 149, 151 (S.D.1984). This court will only set aside a jury verdict where the evidence and the reasonable inferences to be drawn from the evidence do not sustain a rational theory of guilt. Id. at 302 (citing State v. Wedemann, 339 N.W.2d 112 (S.D.1983).

Defendant was charged under SDCL 32-23-1, which provides: "A person may not drive or be in actual physical control of any vehicle while: ... (2) under the influence of an alcoholic beverage."

Defendant contends that there was insufficient evidence at trial to support the jury verdict. He principally asserts that there was insufficient evidence to show that he had been driving a motor vehicle under the influence on Roberts County Highway 7.

State, rather than merely alleging violation of the statute in general terms, added new elements to the proof. The Information specifically alleged that defendant "did drive a vehicle while under the influence of alcoholic beverages, to wit: the said [defendant] drove a 1979 Chevrolet truck bearing Minnesota license # 514BHW for the year 1988 along and upon Roberts County Highway # 7 near the Rock Island Resort, Roberts County, South Dakota at a time when he was under the influence of alcoholic beverages." (Emphasis added.)

Thus, State increased its burden to show not only that defendant was operating a vehicle while under the influence of alcohol, BUT ALSO that he was driving a certain specific vehicle, with a specific license plate AND that it was being operated at a specific location. State v. Brown, 285 N.W.2d 843 (S.D.1979); State v. Sudrala, 79 S.D. 587, 116 N.W.2d 243 (1962); cf. State v. Johnson, 76 S.D. 37, 71 N.W.2d 733 (1955).

We conclude, however, that the jury could have reasonably found that defendant was driving on Highway 7 while under the influence of an alcoholic beverage. Sheriff Long observed the defendant's tire tracks coming from the highway. Testimony showed that the only way he could have been there was by way of Highway 7. The sheriff personally observed various signs of defendant's intoxication, at one point describing defendant as "falling down drunk." Further, there is defendant's own statement that he had consumed alcohol that day and that he was drunk.

ISSUE III

WHETHER THE TRIAL COURT ERRED IN NOT DECLARING A MISTRIAL OR

ENTERING A JUDGMENT OF ACQUITTAL WHEN STATE FAILED TO

PROVIDE THE SECOND PORTION OF DEFENDANT'S VIDEOTAPE WHICH

WAS IN STATE'S CUSTODY AND CONTROL.

The defendant has not preserved this issue for appeal because he made no motion for judgment of acquittal on these grounds nor was a motion for a mistrial presented. ³ See, e.g., State v. Giuliano, 270 N.W.2d 33 (S.D.1978).

We do not believe it rises to the level of "plain error." SDCL 23A-44-15 provides: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of a court." Thus, South Dakota has adopted the "plain error rule" and may, on appeal, notice defects which affect substantial rights even though the defendant failed to properly preserve such defects for appeal. State v. Bunnell, 324 N.W.2d 418 (S.D.1982). The plain error rule applies only in exceptional cases, and then it must be applied cautiously; the rule does not...