State v. Motzko, 23565.

710 N.W.2d 433

2006 SD 13

STATE of South Dakota, Plaintiff and Appellee, v. Deborah J. MOTZKO, Defendant and Appellant.

No. 23565.

Supreme Court of South Dakota.

Considered on Briefs October 3, 2005.

Decided February 8, 2006.

COPYRIGHT MATERIAL OMITTED

Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

David L. Claggett, Spearfish, South Dakota, Attorney for defendant and appellant.

ZINTER, Justice.

[¶ 1.] Deborah Motzko was convicted of driving under the influence of an alcoholic beverage. She appeals contending that: 1) the evidence was insufficient to support the conviction; 2) the trial court should have considered jurors' affidavits in ruling on a motion for new trial; and 3) the trial court erred in refusing her jury instruction suggesting that in South Dakota it was not necessarily illegal to drink and drive. We affirm.

Facts and Procedural History

[¶ 2.] On August 5, 2004, Motzko was driving a motorcycle from Sturgis to Spearfish, South Dakota. As she exited an interstate highway at approximately 9:35 p.m., a pickup truck struck the rear of her motorcycle. The contact caused the motorcycle to slide approximately ten feet, resulting in an injury to Motzko's ankle. Two Spearfish police officers and two highway patrol troopers arrived on the scene to investigate the accident. Shortly thereafter, an ambulance transported Motzko to a hospital in Spearfish.

[¶ 3.] As the ambulance left the scene, Trooper Mark Chamberlain asked Trooper Ed Fox to go to the hospital and gather information about the accident. At the hospital, Fox waited for Motzko to complete her X-rays and then conducted an interview. While talking with Motzko, Fox noticed what he described as "the odor of an alcoholic beverage coming from — what seemed to be coming from her person." Fox asked Motzko whether she had been drinking. Motzko admitted that she had been drinking, stating that she had one glass of wine about two or three hours before the accident.¹ Motzko was subsequently arrested, and at 11:20 p.m., she consented to a blood test. After Motzko was released from the hospital, Fox transported her to the county jail.

[¶ 4.] Upon arriving at the jail, Fox placed the blood sample in a lock box. The blood sample was stored in the lock box until it was shipped to Dr. Robert Looyenga for testing.² The blood was tested twice. The first test indicated that Motzko's blood alcohol level was 0.114 percent. The second test of the same sample indicated a blood alcohol level of 0.118 percent.

[¶ 5.] A Lawrence County grand jury indicted Motzko on alternative counts of driving while under the influence of an alcoholic beverage. Count I alleged that she drove while there was "0.08 percent or more by weight of alcohol in her blood" in violation of SDCL 32-23-1(1). Alternatively, Count IA alleged that she drove "while under the influence of an alcoholic beverage" in violation of SDCL 32-23-1(2). The trial court denied Motzko's motions for judgments of acquittal at the close of both the State's and Motzko's cases. The jury acquitted Motzko of Count I (driving with a 0.08 percent or higher blood alcohol level) but found her guilty of Count IA (driving under the influence). The trial court subsequently denied Motzko's renewed motion for judgment of acquittal and motion for new trial.

Analysis and Decision

Sufficiency of the Evidence

[¶ 6.] Motzko's motions for judgments of acquittal and new trial alleged that the evidence was insufficient to support the conviction. In reviewing the sufficiency of the evidence, the issue 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." State v. Pasek, 2004 SD 132, ¶ 7, 691 N.W.2d 301, 305. "In making that determination, `we accept the evidence and the most favorable inferences fairly drawn therefrom, which will support the verdict.' Moreover, `the jury is . . . the exclusive judge of the credibility of the witnesses and the weight of the evidence.'" Id. We do "not resolve conflicts in the evidence, or pass on the credibility of witnesses, or weigh the evidence." State v. McKinney, 2005 SD 73, ¶ 26, 699 N.W.2d 471, 480 (citing Pasek, 2004 SD 132, ¶ 7, 691 N.W.2d at 305 (citation omitted)). "Thus, `[a] guilty verdict will not be set aside if the state's evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt.'" Pasek, 2004 SD 132, ¶ 7, 691 N.W.2d at 305 (quoting State v. Jones, 521 N.W.2d 662, 673 (S.D.1994) (citation omitted)).

[¶ 7.] Motzko argues the evidence was insufficient because Troopers Chamberlain and Fox observed little, if anything, indicating that she was under the influence. In fact, the only observations of significance were Fox's detection of the odor of alcohol coming from her person and Motzko's admission of having consumed wine earlier that evening. Based on the troopers' minimal observations as well as the acquittal on the 0.08 percent blood alcohol charge, Motzko contends that the evidence was insufficient to prove she was under the influence of an alcoholic beverage at the time of the accident. However, we must examine Motzko's contentions considering both the proof necessary to sustain an "under the influence" conviction under SDCL 32-23-1(2) and the evidential effect of blood alcohol levels of less than 0.08 percent.³

[¶ 8.] SDCL 32-23-1(2) provides: "No person may drive or be in actual physical control of any vehicle while: . . . [u]nder the influence of an alcoholic beverage. . . ." In determining whether a person was "under the influence," this Court has often stated:

that this phrase covers "not only all well known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in alcoholic liquor and which tends to deprive [the defendant] of that clearness of intellect and control of himself which [the defendant] would otherwise possess."

State v. Hullinger, 2002 SD 83, ¶ 14, 649 N.W.2d 253, 259 (quoting State v. Masteller, 86 S.D. 514, 517, 198 N.W.2d 503, 505 (1972) (emphasis added)). Therefore, it is not required that a defendant display the easily observable signs of impairment such as staggering or slurred speech. Rather, any abnormal mental or physical condition that deprives an individual of the clearness of intellect and self control that they would otherwise possess will suffice.

[¶ 9.] In this case, there is record evidence indicating that Motzko had an abnormal mental and physical condition depriving her of the clearness of intellect and self control she normally possessed. Trooper Fox testified that he observed the odor of alcohol, an abnormal physical condition, coming from Motzko's person. In fact, Motzko admitted that she had consumed the wine one to two hours before the accident.⁴ Dr. Looyenga then explained the effect of this alcohol on Motzko's mental and physical conditions at various blood alcohol levels. He testified that an individual's observable motor skills, such as staggering and slurred speech, often do not become impaired until the blood alcohol level reaches the 0.15 to 0.18 percent range, or even higher depending on the individual's tolerance. However, Dr. Looyenga testified that an individual's cognitive abilities, which include less observable conditions such as reaction time, peripheral vision, divided attention, and binocular vision, become impaired around the 0.06 and 0.07 percent level. Thus, while the well known and easily recognizable signs of intoxication (motor skills) may not have been observable, under the evidence presented, the jury could have found that Motzko's intellect and self control (cognitive abilities) were impaired at a blood alcohol level of less than 0.08 percent.

[¶ 10.] We acknowledge that the jury may not have believed that Motzko's blood alcohol level was 0.08 percent or higher at the times Motzko was driving. However, the jury was properly instructed that if her blood alcohol level was between 0.05 and 0.08 percent, there was no presumption of being under the influence, but the blood alcohol level may still be considered in determining the defendant's guilt or innocence. See SDCL 32-23-7 (containing the presumptions that arise from a chemical analysis). Therefore, the fact that Motzko had less than a 0.08 percent blood alcohol level was irrelevant in this prosecution under SDCL 32-23-1(2). See State v. Huettl, 379 N.W.2d 298, 302 (S.D.1985) (indicating that the statutory presumptions relating to being "under the influence" are irrelevant in a prosecution under SDCL 32-23-1(2)).

[¶ 11.] More importantly, it must be remembered that Dr. Looyenga was questioned on other possible theories regarding Motzko's alcohol consumption, correlating blood alcohol levels, and impairment at the time she was driving her motorcycle. All the hypotheticals assumed a 120 pound female had consumed alcohol, was involved in an accident at 9:30 p.m., and had blood drawn at 11:20 p.m. When asked what the blood alcohol level of the female would have been if she had consumed a five ounce glass of wine three hours before the blood draw, Dr. Looyenga testified that her blood alcohol level would have reached a peak of 0.044 percent, it would have dropped to roughly 0.02 percent two hours prior to the draw (the time of the accident), and it would have been zero at the time of the draw. Thus, Motzko's theory of what occurred was scientifically impossible if the jury believed that any level of alcohol was present in her blood. Additionally, a second hypothetical was then presented in which the female would have consumed an eight ounce glass of wine between 8:30 and 8:45 p.m. Dr. Looyenga testified that under this scenario, the blood alcohol level would have been 0.072 percent at its peak and 0.06 percent at the time of the...