State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0324

State of Minnesota,
Respondent,

vs.

Maung Soe Myint,
Appellant.

Filed March 29, 2021
Reversed
Gaïtas, Judge

Waseca County District Court
File No. 81-CR-18-880

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Rachel V. Cornelius, Waseca County Attorney, Waseca, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Gaïtas, Judge; and Cleary,
Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant Maung Soe Myint appeals from his conviction for fourth-degree driving
while impaired, arguing that th e evidence was insu fficient to support the district court’s
guilty verdict. Because the evidence failed to establish beyond a reasonable doubt that
Myint drove, operated, or was in physical control of a motor vehicle while under the
influence of a controlled substance, we reverse.
FACTS
On the evening of October 26, 2018, Janesville Police received a report of a
“suspicious person” at a local hardware store. An employee of the hardware store pointed
out the suspicious person—later identified as Myint—to the responding officer, and the
officer asked Myint to speak w ith him outside. The office r asked Myint why he was in
Janesville, and Myint stated th at he had gotten lost drivi ng from Mankato to Austin and
that his vehicle had run out of gas. The officer requested Myint’s identification. Myint
responded that his identification was in his vehicle. The officer instructed Myint to retrieve
his identification, and Myint did.
The officer testified that Myint acted “very confused” during their conversation,
would not make eye contact, an d could not answer simple que stions regarding “where he
was, what he was doing or where he was going.” The officer also testified that Myint was
making “twitching” motions and frequently mo ved his hands in and out of his pockets
despite being repeatedly instructed not to do so. Based on Myint’s failure to refrain from
putting his hands in his pockets, the officer decided to pat-search him to check for weapons

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or other contraband. During the search, a pink plastic bag fell from Myint’s pocket, which
the officer suspected containe d a controlled substance. Th e officer placed Myint under
arrest and located a “green glass pipe,” a s econd pipe, and two light ers concealed in his
clothing. Myint told th e officer that the bag contained “m edicine” that he used to stay
awake, and admitted that he used the green glass pipe to smoke it.
On the basis of his observations and disc overies, the officer su spected that Myint
had been driving under the influence of a controlled s ubstance and obtained a search
warrant for a sample of Myint’s blood. Subs equent testing by the Minnesota Bureau of
Criminal Apprehension (BCA) confirmed the presence of methamphetamine and
amphetamine in Myint’s blood, and confirme d that the bag discove red during the search
contained 1.16 grams of methamphetamine.
The state charged Myint w ith fourth-degree driving wh ile impaired (DWI), Minn.
Stat. § 169A.20, subd. 1(2) (2018), as well as with additional offenses unrelated to this
appeal. The district court found appellant guilty after a bench trial.
This appeal follows.
DECISION
“Due process requires that every element of the offense charged must be proven
beyond a reasonable doubt by the prosecution.” State v. Cross , 577 N.W.2d 721, 726
(Minn. 1998). “To determine whether sufficient evidence exists to support a jury verdict,
[appellate courts] view the evidence in a light most favorable to the verdict and assume the
fact-finder disbelieved any testimony conflicting with that verdict.” State v. Balandin, 944
N.W.2d 204, 213 (Minn. 2020) (quotation omitted). A verdict will not be overturned “if,

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giving due regard to the presumption of in nocence and to the prosecution’s burden of
proving guilt beyond a reasonable doubt, the [fact-finder] could reasonably have found the
defendant guilty of th e charged offense.” Id. (quotation omitted). We apply the same
standard of review when evaluating the sufficiency of the evidence after a court trial as we
do after a jury trial. State v. Palmer, 803 N.W.2d 727, 733 (Minn. 2011).
The district court found Myint guilty of DW I under a statute that prohibits driving,
operating, or being in physical control of a motor vehicle when “under the influence of a
controlled substance.” Minn. Stat. § 169A.20, subd. 1(2). Myint ar gues that the state’s
evidence was insufficien t to prove beyond a reasonable doubt that he was under the
influence of a controlled substance at any poin t while driving, operati ng, or in physical
control of a motor vehicle.
The elements of an offense may be prov en by either direct or circumstantial
evidence. “Direct evidence is evidence that is based on personal knowledge or observation
and that, if true, proves a fact without inference or presumption.” Bernhardt v. State, 684
N.W.2d 465, 477 n.11 (Minn. 2004) (quota tion omitted). Circumstantial evidence is
“evidence from which the factfinde r can infer whether the facts in dispute existed or did
not exist.” State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation omitted). The
parties here agree, and the record confirms, that Myint’s conviction relies on circumstantial
evidence that he drove, operated, or was in physical control of a motor vehicle while under
the influence of a controlled substance.
When an element of an o ffense is supported by circum stantial evidence alone, the
appellate court reviews the sufficiency of the evidence underlying that element with greater

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scrutiny. State v. Al-Naseer , 788 N.W.2d 469, 473 (Minn. 2010.) The first step in
evaluating the sufficiency of circumstantial evidence is to iden tify the circumstances
proved by the state. To do so, we “winnow down” the pres ented evidence by “resolving
all questions of fact in favor of the [fact-f inder’s] verdict” and disregarding any evidence
inconsistent with the verdict. Harris, 895 N.W.2d at 600. Having identified the
circumstances proved, the second step is to determine whether these circumstances are
consistent with the inference of guilt and in consistent with any reasonable inference of
innocence. Al-Naseer, 788 N.W.2d at 473-74. At this step of the analysis, unlike the first
step, we do not defer to the fact-finde r’s choice among reasonable inferences. Id. at 474.
If the circumstances proved are consistent with a reasonable inference other than guilt, the
evidence is insufficient and any resu lting conviction must be reversed. See Harris, 895
N.W.2d at 603.
Viewing the evidence in the light most favorable to the state, the relevant
circumstances proved are as fo llows. A police officer responded to a suspicious-person
call and encountered Myint inside a hardware store. After stepping outside, the officer
asked Myint for his identification, which he retrieved from a vehicle. Myint told the officer
he had gotten lost driving from Mankato to Austin and had ru n out of gas. The officer
observed that Myint was “twitching” during their conversation and that he seemed anxious
and confused, largely because he was having trouble an swering basic questions and was
not making eye-contact. Because Myint kept putting his hands in his pockets despite being
instructed not to do so, the officer pat-searched him and found a set of car keys and a plastic
bag containing methamphetamine, which Myint told the officer was his “medicine” that he

6
uses to stay awake. While placing Myint under arrest, the officer also found two glass
pipes and two lighters. Subse quent testing of a blood sample confirmed the presence of
methamphetamine and amphetamine in Myint’s system.1
Having determined the ci rcumstances proved, we now evaluate the reasonable
inferences that may be drawn from them. Certainly, these circumstances are consistent
with Myint’s guilt. Myint indeed concedes that the evidence supports the conclusions that
he was under the influence of a controlled s ubstance at the time of his interaction with
police and that he had driven a vehicle to the hardware stor e that day. Myint argues,
however, that these circumstances are in sufficient to exclude as unreasonable the
alternative hypothesis that he was not under the influence of a controlled substance at any
time in which he drove, operated, or was in physical control of a motor vehicle. We agree.
A person “drives” a motor vehicle by “exer cis[ing] physical control over the speed
and direction” of the vehicle “while it is in motion.” 10A Minnesota Practice, CRIMJIG
29.04 (2020). To “operate”—a slightly broader term—means to “manipulate[] or activate[]
any of the controls . . . necessary to put the vehicle into motion.” Id. Here, the state’s
evidence cannot exclude the reasonable, alternative hypothesis that Myint came under the

1 The district court’s order includes a factual finding that the arresting officer was advised
by another deputy of “a driving complaint from a citizen that called in to dispatch.” The
court also found that the vehicle described by the complainant matche d Myint’s vehicle.
In Myint’s brief to this cour t, he argues that the distri ct court’s finding “is wholly
unsupported by the record” an d cannot serve as a circumst ance proved on appeal. We
agree. At trial, the arresting officer began to give a description of information he had
received from another deputy, but was interr upted by a sustained hearsay objection from
defense counsel. We therefore disregard the di strict court’s finding of fact regarding the
alleged driving complaint.

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influence of a controlled substance only afte r driving or operating a vehicle. Although
Myint admitted to having driven to the hardware store from Mankato, the state presented
no evidence regarding when My int became intoxicated and th e arresting officer admitted
that Myint could have used dr ugs only after driving to the ha rdware store. Accordingly,
the circumstances proved cannot exclude th e possibility that My int never drove or
otherwise manipulated or activated the car’ s controls while under the influence of a
controlled substance.
More comprehensive than ei ther “driving” or “operating,” the most inclusive theory
for DWI liability is “physical control”—a broa d term intended to address a situation in
which an impaired person is found “under circumstances where the car, without too much
difficulty, might again be started and become a source of danger to the operator, to others,
or to property.” State v. Starfield, 481 N.W.2d 834, 837 (Minn. 1992). “[A] person is in
physical control of a vehicle if he has the me ans to initiate any movement of that vehicle,
and he is in close proximity to the operating controls of the vehicle.” State v. Fleck, 777
N.W.2d 233, 236 (Minn. 2010).
Cases that have determined a person to be in “physical control” of a vehicle while
not inside of the vehicle have generally involved circumstan ces where the person is in
immediate proximity to the vehicle, usually attending to a mechanical issue or damage
from a collision. See, e.g., Jante v. Comm’r of Pub. Safety, A20-0344, 2020 WL 6703532,
at *4 (Minn. App. Nov. 16, 2020) (standing outside truck on road side, door open, keys
found by appellant’s feet); Hedstrom v. Comm’r of Pub. Safety, 410 N.W.2d 47, 48 (Minn.
App. 1987) (standing outside crashed vehi cle in a field, keys in ignition); State v.

8
Woodward, 408 N.W.2d 927, 928 (Minn. App. 1987) (standing outside truck on roadside,
keys in ignition, hazard lights flashing, flat tire). Here, by comparison, Myint was inside
of a business at the time he was located by police and the state did not present specific
evidence as to where the vehicle was located in relation to the hardware store.
Because Myint was not lo cated inside the vehicle and there is no evidence
demonstrating that he was at the time “in clos e proximity to the operating controls,” it is
reasonable to infer that he was not in “physical control” of the car as that phrase has been
interpreted by the Minnesota Supreme Court and applied by this court. Fleck, 777 N.W.2d
at 236; see also Starfield , 481 N.W.2d at 837. Accordingly, the circumstances proved
cannot exclude the reasonable possibility that Myint was not in physical control of a motor
vehicle while under the influence of a controlled substance.
Because the state’s circum stantial evidence was insuffi cient to prove beyond a
reasonable doubt that Myint drove, operated, or was in physical control of a motor vehicle
while under the influence of a controlled substance, his conviction for fourth-degree DWI
must be reversed.
Reversed.