State of Minnesota, Respondent, vs. Kenneth Jerome Tostenson, Appellant.

This opinion will be unpublished and may

not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

State of Minnesota,

Respondent,

vs.

Rickey Dean Beightol,

Appellant.

Reversed

Anoka County District Court

File No. T0991089

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

Barry A. Sullivan, William G. Hawkins & Associates, 2140 Fourth Avenue North, Anoka, MN 55303 (for respondent)

Larry W. Neilson, Rooney & Neilson, Ltd., 8 Pine Tree Drive, Suite 120, Arden Hills, MN 55112 (for appellant)

            Considered and decided by Lansing, Presiding Judge, Davies, Judge, and Harten, Judge.

LANSING, Judge

            The district court found Rickey Beightol guilty of being in physical control of a motor vehicle while under the influence of alcohol and with an alcohol concentration of .10 or more in violation of Minn. Stat. § 169.121, subds. 1(a), 1(e) (1998).  Beightol appeals from the convictions, contending that the evidence was insufficient to support a legal conclusion that he exercised physical control over the vehicle.  After a thorough review of the record, we agree and accordingly reverse.

            Anoka County deputies, responding to a citizen's report of persistent noise from a revving car engine, arrested Rickey Beightol for being in physical control of a motor vehicle while under the influence of alcohol.  Beightol pleaded not guilty to the ensuing charges, waived a jury trial, and stipulated to owning the car and to the validity of an Intoxilyzer test that showed a .19 alcohol concentration.

            At trial, Beightol and his roommate, Jeremy Geise, testified that on the evening preceding Beightol's arrest, they rode in Beightol's Corvette to a bar and to a party.  Because of the amount of alcohol Beightol had consumed, Geise drove the Corvette home from the party.  Beightol became ill on the way, and Geise pulled into a city lot in Andover to allow Beightol to vomit outside the car.  During this maneuver, the car became stuck in the sand.  After they unsuccessfully attempted to push the car out of the sand, Geise went to find help.

            Geise went to the door of a lighted house near the parking lot.  The homeowner, Barton Lerold, testified that he agreed to help and returned with Geise to the car.  After concluding that they could not push the car out of the sand, Lerold went to get his truck and chains.

            Cynthia Bielawski, whose house adjoined the city lot, testified that she was awakened by the sound of a revving car engine around 4:30 or 5 a.m.  When she looked out the window, she saw taillights of a car in an adjoining city lot and called 911.  Anoka County deputies responded to the call and spoke first with Lerold, who was standing by his truck a short distance from the car.  The deputies proceeded to the area where the car was stuck and saw Beightol passed out in the driver's seat of the car.  The deputies got Beightol out of the car, began the procedures for arrest, and arranged to have the car towed.

            The deputies both testified that they saw keys hanging from the ignition when they found Beightol in the car.  Neither deputy could explain what happened to the keys after that point, although one remembered seeing them later on top of the car's trunk.  Geise and Beightol testified that Geise had the only set of car keys with him and the keys were never at the car after the police arrived.  The tow-truck driver testified that the keys were not in the ignition and that he and one of the deputies looked for the keys but were unable to find them.

The district court found that the deputies' testimony about the keys being in the ignition was not credible.  The court also found that Geise's testimony relating to the keys was not credible.  The court concluded that the testimony of Bielawski and Lerold established that Beightol was in physical control of the vehicle while he was alone inside the Corvette or leaning against it with the engine running.  Beightol appeals, contending that the evidence does not support the district court's conclusion on physical control.

            Minnesota courts have broadly interpreted the "physical control" language of Minn. Stat. § 169.121 (1998).  See State v. Starfield, 481 N.W.2d 834, 836 (Minn. 1992).  Whether a person is in physical control of a vehicle depends on the totality of the circumstances, including ownership, operability or potential operability, location of ignition keys, the defendant's location in or near the vehicle, and whether the defendant was a passenger before the vehicle came to a rest.  Id. at 839.  Thus, a person may be in physical control of a motor vehicle when in a position to start or move the vehicle even if the vehicle is temporarily disabled.  Id. at 837.  Although not necessary to a finding of physical control, possession of keys is relevant.  See id. at 839 (listing location of keys as factor for determining physical control); Ledin v. Commissioner of Pub. Safety, 393 N.W.2d 433, 435 (Minn. App. 1986) (location of keys is one factor among others).

            The district court, in a detailed order and memorandum that relied primarily on Bielawski's and Lerold's testimony, concluded that Beightol was in physical control of the car based on its finding that he was alone in or around the car with the engine running between the time it got stuck and the time when the police arrived.  We recognize that the district court did not have the benefit of the transcript when issuing its findings and conclusions.  We have carefully read and reread the testimony of Bielawski and Lerold and are unable to find a factual basis for the court's conclusion.

Bielawski testified that she heard an engine revving, saw brake lights through the trees, and thought she saw a man walking around the car, but, because it was dark, she was unsure of whether others were also around the car.  She testified that the engine revving went on for about five minutes before she called the police, that the police arrived about ten minutes after her call, and that the engine revving stopped several minutes before the police arrived.  Nothing in Bielawski's testimony indicates that the engine revving occurred when Beightol was alone with the car.  On these facts, it is just as likely that the engine revving stopped when Geise left the car to go find help; started up again when Geise, Lerold, and Beightol attempted to extricate the car; then stopped when Lerold went to get his truck and before deputies arrived.  See State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992) (for circumstantial evidence alone to support a criminal conviction, "the circumstances proved must be consistent with hypothesis of guilt and inconsistent with any other rational hypothesis").

            Lerold's testimony similarly fails to provide affirmative evidence to support guilt.  Lerold testified that the car was running at some point during the time he helped Geise and Beightol attempt to move the car.  Lerold said, "It was running when I first got there, I think.  I couldn't be sure.  I don't know."  It is unclear whether Lerold's statement described when he first came to the Corvette with Geise or the second time he came after retrieving the truck and the chains.  Even assuming he meant when he and Geise first came to the car, the statement is insufficient to support a finding that the car was running, because he retracted it.  The effect of Lerold's full answer was that he did not know.  He did consistently testify that it was Geise and not Beightol who sat in the driver's seat when he joined in the attempt to push the car out of the sand. 

            In concluding that Beightol was alone with the keys and the engine running, the court rejected Geise's testimony that he took the keys with him both times he left the Corvette.  The court rejected the testimony because of a perceived conflict with Bielawski's and Lerold's testimony, but we are unable to identify the conflict.  Neither Bielawski nor Lerold's testimony supports, directly or inferentially, the conclusion that Beightol was left alone with the keys to the Corvette.  More significantly, the court's rejection of Geise's testimony that he took the keys, without more, does not establish that Beightol had them.  See State v. Novak, 181 Minn. 574, 574, 233 N.W. 309, 310 (1930) (justified rejection of testimony does not support finding of fact to contrary).  Accepting, as we must, the court's determinations on credibility, we are without affirmative or inferential proof for the factors on which the court based its finding of physical control.

            The state urges that we affirm based on Beightol's position in the car, together with the deputies' testimony that the keys were in the ignition.  But the district court specifically rejected as not credible the deputies' testimony that the keys were in the ignition, and the court's finding is not clearly erroneous.  The record contains conflicting evidence including the testimony of the deputies, a tow-truck driver, a towing-company office worker, Geise, and Beightol on whether Beightol had the keys or even if the keys were in the car at the time the deputies arrived.  The court's conclusion that the keys were not in the ignition when the deputies arrived is thus one of the credibility determinations that we may not reweigh on appeal.  See DeMars v. State, 352 N.W.2d 13, 16 (Minn. 1984) (weight and credibility of testimony are determinations for trier of fact).

The state alternatively contends that Beightol was in physical control because he was left alone with the car after he had assisted in attempting to push the car out of the sand.  The evidence, however, is that Beightol was not behind the wheel during the attempts to extricate the car.  And because the court specifically rejected both Geise's and the deputies' accounts of the location of the keys, the record has no affirmative evidence on the issue except Beightol's testimony that he did not have the keys and they were not in the ignition.  The court also specifically found, and the state does not dispute, that Beightol was a passenger in the car before it became stuck.

The facts and the district court's credibility determinations distinguish this case from others in which we have concluded that a person sleeping or passed out in a parked car is in physical control of the vehicle.  See Palme v. Commissioner of Pub. Safety, 366 N.W.2d 343, 345 (Minn. App. 1985); Martin v. Commissioner of Pub. Safety, 358 N.W.2d 734, 737 (Minn. App. 1984); Ledin v. Commissioner of Pub. Safety, 393 N.W.2d at 435.  No evidence in Palme, Martin, or Ledin established or even indicated that another person was driving the car while the appellant was a passenger.  Further, in two of the cases, the appellants had access to the keys.  Palme, 366 N.W.2d at 344 (appellant sleeping in driver's seat with keys by his leg and headlights on); Martin, 358 N.W.2d at 736 (appellant found lying in front seat with keys in his possession).  And all three of these cases were civil implied-consent cases, rather than criminal prosecutions.  See Palme, 366 N.W.2d at 345 (contrasting beyond-a-reasonable-doubt burden in DWI cases with preponderance-of-the-evidence burden in implied-consent proceedings). 

The affirmative evidence shows that Beightol only slept in the car, albeit in the driver's seat, when he was left alone with it.  Cf. State, City of Falcon Heights v. Pazderski, 352 N.W.2d 85, 87 (Minn. App. 1984) (no physical control when appellant found sleeping in car on his own property, car was not running, and keys were not in ignition).  The evidence and findings establish that he had been a passenger before the car came to a rest.  Beightol's passenger status prevents the inferences of physical control that could be drawn in Palme, Martin, or Ledin.  Accepting the district court's credibility determinations and the findings sustained by the record, Beightol's conduct is insufficient to establish physical control.

Reversed.