State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0717

State of Minnesota,
Respondent,

vs.

Travis Adam Westgaard,
Appellant.

Filed March 5, 2018
Affirmed
Florey, Judge

Hennepin County District Court
File No. 27-CR-16-13824

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Pres iding Judge; Bratvold, Judge; and Florey,
Judge.

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U N P U B L I S H E D O P I N I O N
FLOREY, Judge
In this appeal from his conviction for driving while impaired (DWI), appellant
argues that the circumstantial evidence was in sufficient to prove th at he was under the
influence of alcohol. We affirm.
FACTS
On the night of May 21, 2016, an offi cer pulled over appellant Travis Adam
Westgaard for driving with a headlight out. The officer did not observe any speeding,
swerving, or suspicious driving. Upon appr oaching, the officer no ticed that appellant
smelled of alcohol and had glassy eyes. The officer asked appellant if he had been drinking,
and appellant admitted to drinking two beers an hour earlier.
The officer instructed appellant to step out of the car and co nducted three field
sobriety tests. During the horizontal-gaz e-nystagmus (HGN) test, appellant’s eyes
exhibited signs of intoxication, including a lack of smooth pursuit, nystagmus before
maximum deviation, and nysta gmus at maximum deviation. Appellant needed the
instructions for the walk-and- turn test repeated numerous times, and according to the
district court’s findings, he seemed “unusually slow” in comprehendin g the instructions.
Appellant was able to perform the one-legged- stand test, but only by lifting his arms for
extra balance.
Appellant was arrested for DWI and transp orted to the police station, where he
agreed to a breath test. His al cohol concentration was measured twice, first at 0.083, and
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then again, almost immediately afterward, at 0.086. The mean of the two breath samples
was reported as 0.0845.
Appellant was charged with two counts of first-degree DWI: one count of driving
with an alcohol concentration of 0.08 or more, and one count of driving under the influence
of alcohol. It was alleged that appellant had three qualified prior impaired-driving
incidents.
A court trial was held. Appellant stipulated to the existence of three prior impaired-
driving convictions. Appellant called a breath-test-calibration expert, who testified about
the accuracy of the breath test and the uncertainty that accomp anies a breath-test result.
According to that testimony, with 95% confidence, appellant’s actual alcohol concentration
was between 0.0769 a nd 0.0921, and with 99 % confidence, appellant’s actual alcohol
concentration was between 0.0745 and 0.0945.
The district court found appellant not guilty of count one, driv ing with an alcohol
concentration of 0.08 or more. The court concluded that there was a “somewhat significant
possibility that the true value of [appellant’s] alcohol concentration—while at least close
to exceeding the legal limit—was not actually sufficient to prove the per se violation for
driving while intoxicated.” However, regard ing count two, the court concluded that
appellant’s alcohol concentration was “at least close to—and prob ably exceeding—the
legal limit,” and combined with the officer’s observations during the field sobriety tests,
there was sufficient evidence that appellant’s ability to drive was impaired. This appeal
followed.

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D E C I S I O N
In considering a claim of insufficient eviden ce, this court’s review is limited to a
thorough analysis of the record to determin e whether the evidence, when viewed in the
light most favorable to the conviction, was su fficient to allow the fa ctfinder to reach its
verdict. State v. Webb , 440 N.W.2d 426, 430 (Minn. 198 9). The reviewing court must
assume “the [factfinder] believed the state’s witnesses and disbelieved any evidence to the
contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will
not disturb the verdict if the factfinder, acti ng with due regard for the presumption of
innocence and the requirement of proof bey ond a reasonable doubt, could reasonably
conclude that the defendant was guilty of the charged offense. Bernhardt v. State , 684
N.W.2d 465, 476-77 (Minn. 2004).
Appellant was convicted of violating Minn. Stat. § 169A.20, subd. 1(1) (2014),
which criminalizes driving a motor vehicle while “under the influence of alcohol.” “Under
the influence” means that the dr iver drank enough alcohol so th at his “ability or capacity
to drive was impaired in some way or to some degree.” State v. Shepard, 481 N.W.2d 560,
562 (Minn. 1992). “There is no set standard as to the quan tity of alcohol a person must
consume before a person is regarded as bei ng ‘under the influence of alcohol.’” 10A
Minnesota Practice, CRIMJIG 29.02 (2015). “When a person is so affected by an alcoholic
beverage that the person does not possess that clearness of intellect and control of [himself]
as [he] otherwise would have, that person is under the influence of alcohol.” Id.
Regarding the applicable standard for re viewing the sufficiency of the evidence,
appellant asserts that a circumstantial-evidence standard applies. The state contends that a
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direct-evidence standard applies. We need not determine the appropriate standard because,
even under the heightened scru tiny of the circumstantial-evidence standard, the evidence
is sufficient.
Under the circumstantial-evidence standard, an appellate court reviews the evidence
using a two-step analysis. State v. Robertson, 884 N.W.2d 864, 871 (Minn. 2016). The
appellate court first identifies the circumst ances proved, deferring “to the [factfinder’s]
acceptance of the proof of these circumstances and rejection of evidence in the record that
conflicted with the circumstances proved by the [s]tate.” Id. (quotations omitted). Second,
the reviewing court “independently examine[s] the reasonableness of all inferences that
might be drawn from the circumstances proved , including inferences consistent with a
hypothesis other than guilt.” Id. (quotations omitted). “In or der to sustain a conviction
based on circumstantial eviden ce, the reasonable inferences that can be drawn from the
circumstances proved as a whole must be consistent with the hypothesis that the accused
is guilty and inconsistent with any rational hypothesis except that of guilt.” Id. (quotation
omitted). The reviewing court must view not only the circum stances proved as a whole,
but also must consider the inferenc es drawn therefrom as a whole. State v. Harris , 895
N.W.2d 592, 600 (Minn. 2017).
The circumstances proved are that (1) appe llant was driving; (2) he smelled of
alcohol and had glassy eyes; (3) he admitted to drinking two beers prior to driving; (4) he
submitted to breath testing, which indicated a mean alcohol concentration of 0.0845; (5) the
officer administered the HGN test, which indi cated a lack of smooth pursuit, nystagmus
before maximum deviation, a nd nystagmus at maximum devia tion; (6) appellant needed
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the instructions for the walk-and-turn test repeated numerous times; and (7) appellant used
his arms for balance during the one-legged-stand test.
The reasonable inferences that might be drawn from these circumstances are
consistent with appellant’s guilt. The circumstances show that appellant consumed alcohol
and then drove; he had alcohol in his system when he drove; his physical abilities were
diminished, as evidenced by the HGN test and balance issues during the one-legged-stand
test; and his clarity of thought was diminish ed, as evidenced by hi s difficulties with the
instructions during the walk-and-turn test.
Appellant asserts that the circumstances a llow for the reasonable inference that he
was intoxicated, but below the legal limit, and his capacity to drive was not impaired. We
disagree. The district court found that appellant showed “sluggish comprehension during
the field sobriety tests,” he needed “to raise his arms for extra balance during [the] one-leg
balance test,” and his “eyes lacked smooth pu rsuit” during the HGN test. Based on these
circumstances, it is unreasonable to infer th at appellant’s capacity to drive was not
diminished to some degree by alcohol.
Appellant likens this case to State v. Elmourabit , in which the supreme court
concluded that there was insu fficient evidence to prove that a defendant was under the
influence of alcohol. 373 N.W.2d 290, 294 (Minn. 1985). However, Elmourabit is
distinguishable. In Elmourabit, there was no direct proof that the defendant consumed
alcohol, except for the defendant’s admission th at he had one beer and a few sips of a
second beer. Id. at 293. In this case, appellant bot h admitted to drinking two beers and
tested above the legal limit. Further, in Elmourabit there were explanations that accounted
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for the defendant’s outward manifestations of intoxication. Id. For example, although the
defendant in Elmourabit had slurred speech, English was not his native language. Id. In
this case, we are not presented with “uniqu e facts and circumstances” to account for
appellant’s outward manifest ations of intoxication. Id. at 294. We conclude that the
evidence in this case is sufficient.
Affirmed.