State v. Wynne

182 Conn.App. 706

190 A.3d 955

STATE of Connecticut

v.Paul WYNNE

AC 39169

Appellate Court of Connecticut.

Argued February 8, 2018

Officially released June 19, 2018

James B. Streeto, senior assistant public defender, with whom was Christopher M. Shea, certified legal intern, for the appellant (defendant).

Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and Justina Moore, assistant state's attorney, for the appellee (state).

Sheldon, Bright and Harper, Js.

BRIGHT, J.

The defendant, Paul Wynne, appeals from the judgment of conviction, rendered following a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both in violation of General Statutes § 14–227a (a) (1). The defendant claims that (1) the evidence was insufficient to support his conviction; and (2) the court abused its discretion in admitting the testimony of the state's expert on drug recognition. We affirm the judgment of the trial court.

The jury was presented with the following evidence on which to base its verdict. On September 6, 2014, at approximately 9:43 p.m., while Trooper Joel Contreras of the state police was patrolling a portion of the Interstate 95 southbound corridor, he observed that the driver of a Nissan pickup truck (vehicle) was "having difficulty maintaining [his] lane" and that he had "cross[ed] into the fog line several times." Contreras followed the vehicle, and the driver of the vehicle continued to drive in a similar manner. As the two vehicles approached the area of exit eighteen, Contreras activated his cruiser's emergency lights and sirens and initiated a traffic stop. Contreras exited his cruiser and knocked on the passenger window of the vehicle. The defendant, the sole occupant and operator of the vehicle, lowered the passenger window. Contreras immediately noticed the smell of alcohol and marijuana. Contreras then asked the defendant for his driver's license, his vehicle's registration, and his insurance card, and he asked the defendant to what location he was driving. The defendant explained that he was going home to Norwalk. Contreras noticed that the defendant was speaking slowly and in a monotone voice. Contreras also noticed that the vehicle was stopped in an unsafe spot in a curve and asked the defendant to drive approximately one tenth of a mile off of exit eighteen.

After the defendant moved his vehicle, Contreras again approached and asked the defendant if he had consumed any alcoholic beverages prior to driving. The defendant responded that he had consumed two beers. Contreras then asked the defendant if he would submit to standardized field sobriety tests, and the defendant agreed. Contreras noticed that the defendant was "unsteady on his feet" and "couldn't keep his balance" when he exited the vehicle. Before explaining the nature of the field sobriety tests, Contreras asked the defendant if he had any ailments that would impair his ability to perform the tests, and the defendant responded in the negative. Contreras first conducted the horizontal gaze nystagmus test,¹ during which he observed the lack of smooth pursuit in each eye, but did not observe the onset of nystagmus prior to forty-five degrees or at maximum deviation. Consequently, Contreras could not conclude that the defendant failed the test.

Contreras then administered the walk and turn test. He explained to the jury that there are a total of eight clues in the walk and turn test, and an individual who displays two or more clues is considered to have failed the test. The defendant exhibited seven clues, including losing his balance, starting too soon, and stopping during the test in order to prevent himself from falling. The defendant also failed the one leg stand test because he swayed while balancing, put down his foot several times, and raised his arms. Based on the totality of Contreras' observations, including the smell of alcohol and marijuana, the field sobriety tests, and the defendant's speech and unsteadiness on his feet, Contreras concluded that the defendant was impaired. Contreras then arrested him for operating a motor vehicle while under the influence of alcohol or drugs or both.

Contreras informed the defendant of his constitutional rights and brought him to the police station for processing. In response to questioning, the defendant stated that between 5 p.m. and 9 p.m. he had consumed two beers and had smoked a marijuana joint prior to driving. The defendant submitted to a Breathalyzer test at approximately 10:41 p.m. that measured his blood alcohol content at 0.0352 percent, which is below the legal limit of 0.08. See General Statutes § 14–227a (a) (2). Nevertheless, on the basis of Contreras' observations, the state charged the defendant with operating a motor vehicle while under the influence of intoxicating liquor or drugs or both.²

Following a jury trial, the jury returned a verdict finding the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both. The trial court rendered a judgment of conviction in accordance with the jury's verdict and sentenced the defendant to a total effective sentence of six months incarceration, execution suspended after twenty days, two days of which were the mandatory minimum, followed by two years' probation with special conditions. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence adduced at trial was insufficient to sustain his conviction of operating a motor vehicle while under the influence of intoxicating liquor or drugs. Specifically, he argues that alleged evidentiary inconsistencies made it unreasonable for the jury to conclude beyond a reasonable doubt that he drove his vehicle while under the influence of intoxicating liquor or drugs such that his mental, physical or nervous processes were so affected that he lacked the ability to operate his vehicle properly in violation of § 14–227a (a) (1). We disagree.

"In reviewing a sufficiency of the evidence claim, we 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 [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) State v. Stovall , 316 Conn. 514, 520, 115 A.3d 1071 (2015).

"On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty."³ (Internal quotation marks omitted.) State v. Torres , 242 Conn. 485, 490, 698 A.2d 898 (1997).

Section 14–227a (a) 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, pursuant to § 14–227a (a) (1), "[a] conviction of operating a motor vehicle while under the influence of intoxicating liquor [or any drug or both] ... requires proof [beyond a reasonable doubt] of (1) operation of a motor vehicle (2) on a public highway or one of the other designated areas (3) while under the influence of intoxicating liquor [or any drug or both].... Driving while under the influence of liquor means, under the law of Connecticut, that a driver had become so affected in his mental, physical or nervous processes that he lacked to an appreciable degree the ability to function properly in relation to the operation of his vehicle." (Citation omitted; internal quotation marks omitted.) State v. Howell , 98 Conn. App. 369, 374–75, 908 A.2d 1145 (2006).

The defendant does not contest that he was operating a motor vehicle on a public highway or that he had alcohol in his bloodstream. The defendant argues that there was insufficient evidence to prove that his consumption of alcohol, marijuana or both so affected his mental, physical or nervous processes that he lacked, to an appreciable degree, the ability to function properly in relation to the operation of his vehicle. He contends that several reasons unrelated to intoxication caused him to cross the fog line, make an unsafe lane change, and fail two field sobriety tests. He notes that Contreras failed to ask him if he had any medical issues which prevented him from performing the walk and turn test and the one leg stand test. The defendant argues that he was cooperative and polite throughout the process; that Contreras could not recall whether the defendant had any difficulty producing documentation, answering questions or comprehending instructions; that he was able to drive his vehicle without incident when Contreras ordered him to change locations; and that he passed the horizontal gaze nystagmus test, which was a scientific test, unlike the walk and turn test and one leg stand test, which are subjective in nature. The defendant further argues that although his admission to having consumed marijuana is sufficient to establish drug use prior to operation, it does not prove that he was impaired while driving.

Although the jury could have accepted the defendant's view of the evidence, it was not required to do so. The jury had more than sufficient evidence to support the defendant...