State v. Neset

• Decision Date: 28 March 1974
• Docket Number: Cr. N
• Citation: 216 N.W.2d 285
• Parties: STATE of North Dakota, Plaintiff-Appellee, v. Roy C. NESET, Defendant-Appellant. o. 470.
• Court: North Dakota Supreme Court

Page 285

216 N.W.2d 285

STATE of North Dakota, Plaintiff-Appellee, v. Roy C. NESET, Defendant-Appellant.

Cr. No. 470.

Supreme Court of North Dakota.

March 28, 1974.

Syllabus by the Court

1. The touchstones for an effective appeal in a criminal case on any proper issue are (1) that the matter has been appropriately raised in the trial court so that the trial court can intelligently rule on it, and (2) that there be a valid appeal from the judgment.

2. At the appellate level we do 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 a conviction.

3. In a criminal trial to the court without a jury, the trial court is the trier of the facts and its findings have the same force and effect as a jury verdict upon review in the appellate court.

4. In a criminal trial to the court without a jury, it is the province of the trial court to weigh the testimony and determine the credibility of witnesses.

5. On appeal in a criminal trial to the court without a jury, the evidence is viewed in the light most favorable to the judgment when resolving the issue of claimed insufficiency of the evidence.

6. For reasons stated in the opinion we find the evidence sufficient to sustain the judgment of the trial court.

Gerald Rustad, Asst. State's Atty., Williston, for plaintiff-appellee.

Ella Van Berkom, Minot, for defendant-appellant.

ERICKSTAD, Chief Justice.

This is an appeal from a judgment of conviction dated August 27, 1973, of the crime of driving a motor vehicle while under the influence of intoxicating liquor. The case was tried to the judge sitting without a jury in Williams County Court With Increased Jurisdiction.

The defendant-appellant, Roy C. Neset, was originally also charged with having an open bottle containing an alcoholic beverage in a motor vehicle, in violation of Section 39--08--18, N.D.C.C. The Driving Under the Influence charge and the Open Bottle charge were tried together by stipulation. The Open Bottle charge was dismissed and is not before us.

The sole issue raised by Neset is the sufficiency of the evidence to sustain a judgment of conviction of driving a vehicle upon a highway while under the influence of intoxicating liquor, in violation of Section 39--08--01, N.D.C.C.

At the close of the State's case, Neset made a motion to dismiss (which in the future under Rule 29(a), N.D.R.Crim.P., should be referred to as a motion for judgment of acquittal) based, among other things, upon the insufficiency of the evidence as to both the Driving Under the Influence charge and the Open Bottle charge. This motion was denied by the court. Neset then presented his case, but did not renew his motion to dismiss based upon the insufficiency of the evidence after all the evidence was in. The court rendered judgment, finding Neset guilty of the crime of driving a vehicle upon a highway while under the influence of an intoxicating liquor and dismissing the Open Bottle charge. No motion for a new trial was made. With recent precedent we conclude that review of sufficiency of the evidence is not precluded, even though the instant appeal is from the judgment only.

'The touchstones hereafter for an effective appeal on any proper issue should be (1) that the matter has been appropriately raised in the trial court so that the trial court can intelligently rule on it, and (2) that there be a valid appeal from the judgment. Any other traps for the unwary on the road to the appellate courthouse should be eliminated.' State v. Haakenson, 213 N.W.2d 394 at 399 (N.D.1973).

In State v. Kaloustian, 212 N.W.2d 843 (N.D.1973), a case procedurally but not factually the same as the instant case as we shall see later in the opinion, there was an appeal from a conviction in a county court with increased jurisdiction of the crime of driving a vehicle upon a highway while under the influence of an intoxicating liquor, in violation of Section 39--08--01, N.D.C.C. In that case we said:

'In State v. Miller, 202 N.W.2d 673 (N.D.1972); State v. Champagne, 198 N.W.2d 218 (N.D.1972); and State v. Carroll, 123 N.W.2d 659 (N.D.1963), we pointed out that the rule as to circumstantial evidence, at the trial level, is that such evidence must be conclusive and must exclude every reasonable hypothesis of innocence, but at the appellate level we do 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 a conviction.' State v. Kaloustian, Supra, 212 N.W.2d 843 at 845.

To prove the crime charged in the instant case, the State must establish (1) that Neset was driving or in actual physical control of a vehicle upon a highway in this State and (2) that while so doing he was under the influence of intoxicating liquor.

Neset admits the driving element of the crime charged:

'Q. (Miss Van Berkom) On April 15, were you involved in an accident with a car--with a pickup?

'A. (Roy Neset) Yes, I was.'

The evidence which the trial court considered, from which inferences were drawn, and which we must review is primarily circumstantial. In State v. Steele, 211 N.W.2d 855 at 869--870 (N.D.1973), and State v. Carroll, 123 N.W.2d 659 at 669 (N.D.1963), we quoted with approval from Corpus Juris Secundum as follows:

'Where the circumstances are consistent with the hypothesis of accused's innocence as well as with that of his guilt, the jury, or the trial court trying the case without a jury, must draw the inference, and an appellate court will not substitute its judgment for that of the jury or of the trial court.' 24A C.J.S. Criminal Law § 1882 (1962).

In City of Minot v. Spence, 123 N.W.2d 836 (N.D.1963), a criminal case tried to the court sitting without a jury, in which the defendant was convicted of driving a vehicle upon a highway while under the influence of intoxicating liquor, this court viewed the evidence in the light most favorable to the judgment when resolving the issue of claimed insufficiency of the evidence. In Syllabus 2 we said:

'In a criminal trial to the court without a jury, the trial court is the trier of the facts and its findings have the same force and effect as a jury verdict upon review in the appellate court.' City of Minot v. Spence, Supra, 123 N.W.2d 836.

To the same effect see also State v. Crosby, 277 Minn. 22, 151 N.W.2d 297 (1967); State v. Crowley, 174 Neb. 291, 117 N.W.2d 488 (1962).

Also in Spence we said:

'In a criminal trial to the court without a jury, it is the province of the trial court to weigh the testimony and determine the credibility of witnesses.' City of Minot v. Spence, Supra, Syllabus 3, 123 N.W.2d 836.

The issue before us is whether the evidence was sufficient to prove that Neset was under the influence of intoxicating liquor at the time he was driving. Let us consider the evidence under the standards previously set forth.

The charges against Neset resulted from an investigation of a one-vehicle accident which occurred approximately one-half mile north of Tioga, North Dakota, on Highway No. 40.

Neset was taken into custody by Patrolman Finnessey of the Tioga Police Department between 3:35 and 3:45 a.m., April 15, 1973. The Tioga Chief of Police, Duane Torgerson, was called at approximately 3:45 a.m. to give the defendant a breathalyzer test. Torgerson arrived at the station at approximately 4 a.m. The test was administered at 4:38 a.m., showing a reading of .16% Alcohol by weight.

The time of the accident is in dispute. Neset admits to having entered Poncho's Bar near midnight, where he had one beer, ate supper, had another beer, and then bought a six-pack of beer before leaving for home. His home is one and a half miles east of Tioga. Neset testified that upon leaving Poncho's he stopped in Tioga at a friend's trailer house before going home, that he drank no alcohol while at the friend's house, and that he did not stay very long before leaving again. These facts are corroborated by another witness, Gary Raan, who testified Neset arrived at the trailer house about 2 a.m., had no alcohol to drink, and did not stay very long. Neset testified that the accident occurred when on his way home again he decided to return to Tioga.

'A. (Neset) I started to pull into Tioga and I wasn't going slow enough so I turned back. I got too far in the corner and the pickup slid in the ditch. Slid down in the ditch. Just before it stopped, it rolled over.

'Q. (Miss Van Berkom) And was it your intention in the first place to go into Tioga or to go home?

'A. I was kind of undecided. I--

'Q. Was it that indecision that caused the accident?

'A. Yeah.'

A Mr. and Mrs. Gudvangen, on their way home that morning from the American Legion Club in Tioga, found the Neset pickup in the ditch. The Gudvangens testified they discovered the pickup in the ditch about 2:15 a.m. They stopped to see if anyone was injured and found Neset alone in his pickup. Mr. Gudvangen testified that he was very sure of the time, because the Legion Club closed at 2 a.m. and they left when it closed.

Although no one asked whether Mrs. Gudvangen had been drinking, the State's Attorney questioned Mr. Gudvangen about his drinking. He testified that he and his wife arrived at the Legion Club about 11:30 p.m. and that by 2 a.m. he was not sure how much he had imbibed, but admitted that it could have been more than ten vodka-cokes.

Neset testified that the accident happened about 2:15 to 2:20 a.m., and that he thereafter rode with the Gudvangens into Tioga for a few minutes and then to his farm home, where Neset and Gudvangen drank some beer and bourbon until the police arrived at about 3:30 a.m.

Neset's defense was that he became under the influence of alcohol after the accident, from liquor he drank...