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State v. Donovan

Supreme Court of New Hampshire

October 2, 2014

State of New Hampshire
v.
Francis Donovan,

The defendant, Francis Donovan, appeals his conviction, following a bench trial in circuit court, on charges of aggravated driving while intoxicated, see RSA 265-A:3 (2014), and transporting alcoholic beverages, see RSA 265-A:44 (2014). The defendant contends that the evidence was insufficient to allow the trial court to find that: (1) he was in actual physical control of the vehicle while under the influence of alcohol; (2) he was in actual physical control of the vehicle at the time stated in the complaints; and (3) his blood alcohol content (BAC) was greater than 0.16 while he was in actual physical control of the vehicle. We affirm.

To prevail in a challenge to the sufficiency of the evidence, the defendant bears the burden of establishing that no rational trier of fact, viewing the evidence in the light most favorable to the State, could have found guilt beyond a reasonable doubt. State v. Kelley, 159 N.H. 449, 454-55 (2009). In reviewing the evidence, we examine each evidentiary item in the context of all the evidence, not in isolation. Id. at 455. Circumstantial evidence may be sufficient to support a finding of guilt beyond a reasonable doubt. Id. The trier of fact may draw reasonable inferences from facts proved and also inferences from facts found as a result of other inferences, provided they can be reasonably drawn therefrom. Id.

To prevail on a sufficiency of the evidence challenge when the evidence as to one or more elements of the charged offense is solely circumstantial, the defendant must establish that the evidence does not exclude all reasonable conclusions except guilt. The proper analysis is not whether every possible conclusion consistent with innocence has been excluded, but, rather, whether all reasonable conclusions based upon the evidence have been excluded. State v. Germain, 165 N.H. 350, 361 (2013).

We first address the defendant's argument that the evidence was insufficient to establish that he was in actual physical control of the vehicle while under the influence of alcohol. A person is guilty of aggravated driving while intoxicated if he "drives or attempts to drive" a vehicle on a way "while having an alcohol concentration of 0.16 or more." RSA 265-A:3, :3, III. "Drive" is defined as having "actual physical control" over the vehicle. RSA 259:24 (2014). Having actual physical control means having the capacity bodily to guide or exercise dominion over the vehicle at the present time. State v. Winstead, 150 N.H. 244, 247 (2003). A person does not have actual physical control of the vehicle when he is totally passive, has not in any way attempted to actively control the vehicle, and there is no reason to believe that he is imminently going to control the vehicle in an inebriated condition. State v. Willard, 139 N.H. 568, 571 (1995). Circumstantial evidence is sufficient to establish actual physical control. Winstead, 150 N.H. at 247. Nothing in the statute requires that a motor vehicle actually be operable in order for an individual to "drive" it. State v. Osgood, 135 N.H. 436, 437 (1992).

In this case, the defendant demonstrated his dominion over the vehicle by being in the driver's seat with the keys in the ignition and the emergency flashers on. The trooper testified that the defendant told him that he had "just flown back from Puerto Rico and he was heading back to his residence in Meriden, " that he had run out of gas, and that "he had help coming." Therefore, the trial court could have reasonably found that the defendant was in actual physical control of the vehicle when he ran out of gas.

The defendant argues that he could not have been in actual physical control of the vehicle when the trooper arrived because it was out of gas and would not run. However, this does not preclude his actual physical control of the vehicle prior to running out of gas. Cf. Winstead, 150 N.H. at 248 (holding driver who started car before falling asleep was in actual physical control of vehicle).

The defendant argues that he could not have been in actual physical control of the vehicle at 3:30, the time stated in the complaint, because the trooper "was on the scene at 3:15 a.m. at which time he took control of the scene and the vehicle." As a general rule, if time is not an element of the offense, it is sufficient if the State can prove that the events took place on or about the time indicated in the complaint. State v. DeCosta, 146 N.H. 405, 412 (2001). In this case, the defendant does not argue that time is an element of the offense or that he was prejudiced by the fifteen minute discrepancy, nor did he raise a time-based defense.

The defendant argues that the evidence is insufficient to show that he was intoxicated when he was in actual physical control of the vehicle because he "could have consumed alcohol in the vehicle after it had broken down." However, the trial court could have reasonably inferred from the trooper's testimony that the defendant had called for assistance when he ran out of gas and that this assistance had not yet arrived, leading to a second reasonable inference that the defendant had not been stranded much longer than the thirty-six minutes that elapsed between the dispatch call to the trooper and his arrival at the defendant's vehicle. Furthermore, the trial court could have reasonably inferred that the defendant sought assistance as soon as he ran out of gas because it was the middle of the night in the middle of winter in New Hampshire when no reasonable person would choose to sit on the side of the highway longer than necessary. The trial court could have reasonably concluded that a driver stranded on the highway and waiting for help would not begin drinking alcohol at that time since he was then in a particularly vulnerable position to be discovered by the police or someone else offering assistance. The trial court was not required to exclude every possible scenario consistent with innocence, but was only required to find that all reasonable conclusions based upon the evidence had been excluded. See Germain, 165 N.H. at 361.

Viewing the evidence in the light most favorable to the State, we conclude that it was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was in actual physical control of the vehicle while under the influence of alcohol. See Winstead, 150 N.H. at 247.

We next address the defendant's contention that the evidence was insufficient to establish that his BAC was at least 0.16 when he was in actual physical control of the vehicle. When the police obtain a BAC within a reasonable period of time after the defendant was in actual physical control of the vehicle, the results of that test may be admitted as prima facie evidence of intoxication. State v. Taylor, 132 N.H. 314, 321 (1989) (stating rule applicable to per se violations). The length of time between actual physical control and the BAC goes only to the weight the trier of fact gives the evidence. Id.

As we conclude above, the trial court could reasonably have found that the defendant was in actual physical control of the vehicle when it ran out of gas, at approximately 2:39 a.m. when dispatch notified the trooper of his car on the side of the highway. The record reflects that the defendant's BAC was taken at 4:20 a.m., one hour and forty-one minutes later, and was found to be 0.19. The trial court reasonably could have found this to be a reasonable period of time. See Taylor, 132 N.H. at 319 (finding one hour and fifteen minutes to be reasonable period). We defer to the trial court's consideration of the weight to be attributed to the time lapse between the defendant's actual physical control of the vehicle and the BAC. See Lakes Region Gaming v. Miller, 164 N.H. 558, 561 (2013).

Therefore, viewing the evidence in the light most favorable to the State, we conclude that it was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant's BAC was 0.16 or more when he was in actual physical control of the vehicle.

Affirmed.

HICKS, LYNN, and BASSETT, JJ., ...


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