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This opinion will be unpublished and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
A17-1610

State of Minnesota,
Respondent,

vs.

Gary Lee Appel,
Appellant.

Filed June 11, 2018
Affirmed
Larkin, Judge

Lincoln County District Court
File No. 41-CR-17-30

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

Glen Petersen, Lincoln County Attorney, Tyler, Minnesota (for respondent)

Daniel P. Repka, Repka Law, LLC, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Larkin, Judge; and Reilly,
Judge.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges his conviction of driving while impaired (DWI), arguing that
the evidence presented at trial was insufficient to sustain the conviction. We affirm.
FACTS
Respondent State of Minnesota charged appellant Gary Lee Appel with DWI based
on his refusal to submit to a chemical test. The case was tried to a jury.
At trial, former Lincoln County Sheriff’s Office Deputy Dallas Cornell testified that
he responded to a report of a disabled vehicle on County Road 15 near Arco on the
afternoon of February 22, 2017. When Deputy Cornell arrived at the scene, he observed a
gray Buick LaSabre parked in an abandoned driveway. The vehicle’s trunk and hood were
open, and its front passenger tire was blown out . Appel was standing by the trunk of the
vehicle. There were no other individuals at the scene. Deputy Cornell testified that he
asked Appel if he had been driving the Buick, and Appel answered affirmatively. Appel
did not claim that any other person had driven the vehicle , and the vehicle was registered
to Appel’s wife.
Deputy Cornell observed an open case of Old Milwaukee beer in the vehicle’s trunk,
an empty Old Milwaukee beer can on the ground near the vehicle, and another empty can
on the hood of the vehicle. Deputy Cornell testified that Appel was swaying from side to
side, that he smelled of alcohol, and that he had bloodshot, watery eyes. Appel failed two
field sobriety tests and refused additional tests. Appel also failed to provide a preliminary
breath test sample by repeatedly interrupting his exhalation ; he ultimately refused to

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continue the preliminary breath test. Based on these circumstances, Deputy Cornell
arrested Appel for DWI.
Deputy Cornell testified that he retrieved the keys to the vehicle, which were at the
scene, and that he transported Appel to a local law-enforcement center. Once there, Deputy
Cornell read Appel an implied-consent advisory three times and repeatedly asked Appel to
take a breath test. Appel stated that he did not believe in the test . He did not respond to
further inquiries, and he did not take the test.
Appel testified at trial. He told the jury that he did not drive the vehicle that day.
Appel claimed that a friend drove him to a park in the vehicle to go fishing and that they
purchased two cases of beer in South Dakota on the w ay to the park. Appel testified that
he consumed two beers at the park. Appel testified that on their way home from the park,
the car got a flat tire and Appel’s friend got a ride into town to get his car. Appel testified
that while he was waiting for his friend to return, he drank two beers. When his friend did
not return within 50 minutes , Appel started trying to flag down cars. Deputy Cornell
arrived on the scene soon after.
On rebuttal, Deputy Cornell reiterated that Appel told him he was the driver of the
vehicle and that Appel did not tell him that anyone else had driven the vehicle to its location
on County Road 15.
The jury found Appel guilty of refusing to submit to a chemical test . The district
court sentenced Appel to 365 days in jail, stayed 341 days of the sentence for two years,

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and placed Appel on probation. Appel appeals, challenging the sufficiency of the evidence
to sustain his conviction.1
D E C I S I O N
Appel was found guilty of refusing to submit to a chemical test under Minn. Stat.
§ 169A.20, subd. 2 (2016), which provides , “[i]t is a crime for any person to refuse to
submit to a chemical test” under section 169A.51. Section 169A.51 provides that a
chemical test “may be required of a person wh en an officer has probable cause to believe
the person was driving, operating, or in physical control of a motor vehicle in violation of
section 169A.20” and “the person has been lawfully placed under arrest for violation of
section 169A.20.” Minn. Stat. § 169A.51, subd. 1(a)-(b) (2016). The relevant portion of
section 169A.20 provides, “[i]t is a crime for any person to drive, operate, or be in physical
control of any motor vehicle . . . when: (1) the person is under the influence of alcohol.”
Minn. Stat. § 169A.20, subd . 1 (2016). A person is “under the influence” when he does
not “possess that clearness of intellect and control of himself that he otherwise would
have.” State v. Teske, 390 N.W.2d 388, 390 (Minn. App. 1986) (quotation omitted).
Appel “only contests the jury’s verdict as it relates to whether Deputy Cornell had
probable cause to believe [he] drove, operated, or was in physical control [of the vehicle]
while under the influence of alcohol.”
Probable cause under section 169A.51, subdivision 1(b), exists
whenever there are facts and circumstances known to the
officer which would warrant a prudent man in believing that
the individual was driving or was operating or was in physical
control of a motor vehicle while impaired. The existence of

1 The state did not submit a brief in this case.

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probable cause depends on the particular circumst ances,
conditioned by officers’ own observations and information and
guided by the whole of their police experience. [Appellate
courts] have recognized that the police may interpret
circumstances in a way that differs from ordinary citizens.
Accordingly, because an officer’ s training and experience is
the lens through which the fact -finder must evaluate t he
reasonableness of an officer’s determination of probable cause,
probable cause incorporates the individual characteristics and
intuitions of the officer to some extent.

Nonetheless, the reasonableness of the officer’s actions
is an objective inquiry, even if reasonableness is evaluat ed in
light of an offic er’s training and ex perience. The actual,
subjective beliefs of the officer are not the focus in evaluating
reasonableness. Rather, the probable c ause standard a sks
whether the totality of the facts and circumstances k nown
would le ad a reasonable off icer to entertain an honest and
strong suspicion that the suspect has committed a crime.

State v. Koppi, 798 N.W.2d 358, 362-63 (Minn. 2011) (quotations and citations omitted).
In considering a claim of insufficient evidence, this court ’s review is limited to a
close analysis of the record to determine whether the evidence, when viewed in the light
most favorable to the conviction, was sufficient to allow the jur y to reach the verdict that
it did. State v. Webb, 440 N.W.2d 426, 430 (Min n. 1989). This court must assume “the
jury believed the state’s witnesses and disbelieved any evidence to the contrary.” State v.
Moore, 438 N.W.2d 101, 108 (Minn. 1989). This is especially true when resolution of the
matter depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584
(Minn. 1980). This court will not disturb the verdict if the jury, acting with due regard for
the presumption of innocence and the requirement of proof beyond a reasonable doubt,
could reasonably conclude the defendant was guilty of the charged offense. Bernhardt v.
State, 684 N.W.2d 465, 476-77 (Minn. 2004).

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A heightened standard of review applies when proof of an element is based on
circumstantial evidence. State v. Al-Naseer, 788 N.W.2d 469, 474-75 (Minn. 2010). The
circumstantial-evidence standard involves a two-step process in which we identify the
circumstances proved and determine whether they are consistent with guilt and inconsistent
with any rational hypothesis other than guilt. Loving v. State, 891 N.W.2d 638, 643 (Minn.
2017). Appel argues for relief under the circumstantial -evidence standard, asserting that
the necessary probable-cause showing was based on circumstantial evidence.
Circumstantial evidence is “evidence from which the factfinder can infer whether
the facts in dispute existed or did not exist.” State v. Hokanson, 821 N.W.2d 340, 354 n.3
(Minn. 2012) (quotation omitted). Circumstantial evidence always requires an inferential
step that is not required with direct evidence. State v. Harris, 895 N.W.2d 592, 599 (Minn.
2017). Direct evidence is “evidence that is based on personal knowledge or observation
and that, if true, proves a fact without inference or presumption.” State v. Clark , 739
N.W.2d 412, 421 n.4 (Minn. 2007) (quotation omitted).
Deputy Cornell’s testimony regarding the following circumstances was based on his
personal observations: Appel’s indicia of intoxication, Appel’s admission to drinking,
Appel’s admission to driving, Appel’s proximity to the vehicle, the presence of the keys to
the vehicle at the scene, and the absence of any individual other than Appel at the scene .
Thus, Deputy Cornell’s testimony was direct evidence. Because we ultimately conclude
that the challenged probable -cause determination can be sustained based solely on this
direct evidence, we do not apply the circumstantial-evidence standard of review.

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Appel “concedes that the smell of alcohol coming from his breath, his swaying, and
his performance on the [field sobri ety tests] contributed to Deputy Cornell’s decision to
arrest [him] for driving while intoxicated.” Such indicia of intoxication are recognized
grounds for probable cause to believe a person is under the influence. See, e.g., Purnell v.
Comm’r of Pub. Safety , 410 N.W.2d 439, 441 (Minn. App. 1987) ( upholding probable-
cause determination based on officer’s perception of an odor of an alcoholic beverage on
a driver’s breath, as well as driver’s fast, mumbled, and slurred speech, poor and unstable
balance, and failure of field sobriety tests). Appel’s sufficiency challenge is based on a
post-operation consumption theory. Appel essentially argues that Deputy Cornell could
not have known the point at which Appel had consumed enough alcohol to be under the
influence. He argues that it is impossible to know whether his “clues of impairment”
resulted from the beer that he consumed before or after the vehicle was parked along
County Road 15.
Appel’s sufficiency argument is unavailing because the state did not necessarily
have to prove that there was probable cause to believe Appel drove or operated the motor
vehicle while he was under the influence of alcohol. Instead, the necessary probable-cause
determination could be based on a belief that Appel was in physical control of the vehicle
while he was under the influence of alcohol. See Minn. Stat. § 169A.51, subd. 1 (2016)
(providing that a chemical test “may be required of a person when an officer has probable
cause to believe the person was driving, operating, or in physical control of a motor vehicle
in violation of section 169A.20” (emphasis added)). Accordingly, the jury was instructed
that the state needed to prove that “a peace officer had probabl e cause to believe that

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[Appel] drove, operated, . . . or was in physical control of a motor vehicle while un der the
influence of alcohol.” Appel’s p ost-operation consumptio n would not preclude a
determination that he was under the influence during any post-operation physical control
of the vehicle.
This court has approved jury instructions defining physical control of a vehicle as
follows:
[A] person [is] in physical control of a vehicle if he has the
means to initiate any movement of that vehicle and he is in
close proximity to the operating controls of the vehicle, and
this is true whether the vehicle can be driven upon the highway
at that point or not.

State v. Duemke , 352 N.W.2d 427, 43 2 (Minn. App. 1984) . “Because Minnesota laws
designed to prevent driving while intoxicated are to be broadly construed in the public’ s
favor, . . . the state need not prove that an automobile engine is running as an essential
element of the offense of physical control of a motor vehicle while under the influence of
alcohol.” State, Dep’t Pub. Safety v. Juncewski , 308 N.W.2d 316, 317 (Minn. 1981)
(quotation omitted).
When Deputy Cornell arrived at the scene, Appel was the only person with the
vehicle. Appel admitted that he had been driving the vehicle , and he did not mention
another driver. The keys to the vehicle were at the scene, and Appel therefore had the
means to initiate movement of the vehicle. Lastly, Appel displayed several signs of
intoxication.
In State v. Woodward, this court concluded that similar facts were sufficient to prove
that Woodward was in physical control of her motor vehicle while under th e influence of

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alcohol. 408 N.W.2d 927, 927 (Minn. App. 1987). A state trooper observed Woodward’s
vehicle stopped on the shoulder of a highway with its hazard lights flashing and trunk open.
Id. The trooper stopped and observed that the vehicle’s engine was running, its keys were
in the ignition, and it had a flat tire. Id. Woodward was standing at the rear of the vehicle.
Id. She exhibited several signs of intoxication , acknowledged that she had had a drink,
failed several field sobriety tests, and was arrested for DWI. Id. Woodward never claimed
to the trooper that she was not the driver of the vehicle. Id. at 928.
At Woodward’s court trial on an ensuing DWI charge, “Woodward claimed she was
being driven home by a friend who was unable to fix the flat tire” and that her friend left
to get his car and told her to wait for him to return to fix the tire. Id. Woodward testified
that she never heard from her friend again. Id. The district court found Woodward guilty
of being in physical control of the vehicle while under the influence. This court upheld the
conviction against a sufficiency challenge, relying on the definition of physical control in
Duemke and reasoning:
That Woodward’s car had a flat tire does not mean the
car was incapable of movement and incapable of posing a
threat to public safety. Woodward’s car was not mechanically
inoperable simply because it could not successfully reach her
intended destination.

Woodward was found alone, exercising control over her
vehicle. The keys were in the ignition and the engine running.
She was fully capable of putting the car in motion. We
conclude the evidence was sufficient to prove Woodward was
in physical control of a motor vehicle while under the influence
of alcohol . . . .

Id. (citations omitted).

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The facts of Woodward are strikingly similar to those in this case. We recognize
that in this case, the vehicle’s engine was not running . B ut a running engine is not an
essential element of the offense of being in physical control of a motor vehicle while under
the influence of alcohol. Juncewski, 308 N.W.2d at 317. Based on this court’s holding in
Woodward, we conclude that the evidence here was sufficient to prove that Deputy Cornell
had probable cause to believe that Appel was in physical control of the vehicle while under
the influence of alcohol. Because the jury could have reasonably concluded that th e
probable-cause element was proved beyond a reasonable doubt based on Appel’s physical
control of the vehicle, we do not disturb the verdict.
Affirmed.