State of Minnesota, Respondent, vs. John Michael McDonnell, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-03-203

 

 

State of Minnesota,

Respondent,

 

vs.

 

John Michael McDonnell,

Appellant.

 

 

Filed October 7, 2003

Affirmed

Anderson, Judge

 

Hennepin County District Court

File No. 02073879

 

Jennifer E. Speas, Birrell & Newmark, Ltd., 510 First Avenue North, Suite 500, Minneapolis, MN  55403 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, C2000 Government Center, Minneapolis, MN  55487; and

 

Jennifer L. Wolf, Associate City Attorney, City of Bloomington, 1800 West Old Shakopee Road, Bloomington, MN  55431 (for respondent)

 

            Considered and decided by Harten  , Presiding Judge; Anderson, Judge; and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

            Appellant challenges his convictions for driving under the influence of alcohol and driving with an alcohol concentration level of 0.10 or more.  After a jury convicted him of these offenses, appellant filed a motion for acquittal, arguing that the verdicts were unsupported by the evidence because the state had not proved beyond a reasonable doubt that the offenses were committed in Hennepin County.  The district court denied appellant's motion.  We affirm.

FACTS

 

            At approximately 12:44 a.m., on September 20, 2002, Bloomington Police Officer Aaron Paul was at a local restaurant assisting another officer on an unrelated drug arrest. While helping the other officer, Paul noticed a white Mazda pull into the parking lot and drive toward the southwest corner.  When the car made a loud, high-pitched noise, Paul observed the vehicle travel the length of the parking lotapproximately 100 to 125 feetin reverse.  Paul estimated that the car was traveling between 30 to 40 miles per hour when it hit a curb.  The vehicle then made a wide turn while leaving the parking lot and traveled north on 78th Street.

            Paul stopped the vehicle and identified the driver as appellant.  Appellant told Paul that he had come from the 494 freeway and was heading to the nearby Microtel Inn.  Paul testified that he could smell an odor of alcohol coming from the car and that appellant admitted consuming a beer.  Paul also observed that appellant's eyes were bloodshot and watery and that his speech was slurred.  Appellant submitted to several field-sobriety tests and failed many of them.  Appellant agreed to take a breath test, which showed an alcohol concentration of 0.14.

            Appellant testified that he is a Chicago resident and was in Minnesota on September 11, 2002, having dinner with clients in Minnetonka.  After dinner, at approximately 11:15 p.m., appellant stated that he was headed "home" to the Microtel Inn in Bloomington when he pulled into the parking lot next to the hotel by mistake. 

            Appellant was charged with driving while intoxicated, in violation of Minn. Stat. § 169 A. 20, subd. 1(5) (2002); driving with an alcohol level over 0.10, in violation of Minn. Stat. § 169 A. 20, subd. 1(1) (2002); and careless driving, in violation of Minn. Stat. § 169.13, subd. 2 (2002).  At trial, appellant's counsel moved for a judgment of acquittal on all counts, arguing that the state had not proved beyond a reasonable doubt that these events occurred in Hennepin County.  The district court denied the venue argument pending the verdict, correctly reasoning that if the jury acquitted defendant, the argument would be moot.  In its final argument and rebuttal argument, the prosecutor did not mention that the events occurred in Hennepin County. 

            The district court instructed the jury on the elements of the charged crimes, specifically stating that the jury had to find that "the defendant's act took place on or about September 12, 2002 in Hennepin County" for each offense.  The jury convicted appellant of driving under the influence of alcohol and of having an alcohol concentration level of 0.10 or more, but acquitted him of careless driving. 

            Appellant renewed his motion for acquittal pursuant to Minn. R. Crim. P. 26.03, subd. 17, arguing that the state failed to prove beyond a reasonable doubt that the offenses occurred in Hennepin County.  The district court denied appellant's motion, ruling that the jury was able to infer that the offenses occurred in Hennepin County because Bloomington was repeatedly referenced during the trial.  This appeal followed.

D E C I S I O N

 

            Appellant argues that there was no evidence submitted from which the jury could find beyond a reasonable doubt that the offenses occurred in Hennepin County.  In considering a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We 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).  We 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 that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            A criminal case generally must be heard in the county where the offense occurred. Minn. Const. art. I, § 6; Minn. Stat. § 627.01, subd. 1 (2002); Minn. R. Crim. P. 24.01.  Venue is an element of both the offenses of driving under the influence of alcohol, and of driving with an alcohol concentration level of 0.10 or more.  10A Minnesota Practice, CRIMJIG 29.02 and 29.10 (1999). 

            The supreme court has stated that "[v]enue is determined by all the reasonable inferences arising from the totality of the surrounding circumstances."  State v. Carignan, 272 N.W.2d 748, 749 (Minn. 1978).  In a bench trial, the district court may take judicial notice of venue when indirect evidence such as a street address or town name is offered at trial.  State v. Larsen, 442 N.W.2d 840, 842 (Minn. App. 1989).  Venue may also be proven by circumstantial evidence in a jury trial.  Id.

            In Larsen, the defendant was accused of stealing a television set from a cabin located on Lake Florida, approximately ten miles from Willmar, Minnesota, in Kandiyohi County.  442 N.W.2d at 841.  Although no trial witnesses testified that the offenses occurred in Kandiyohi County, this court upheld the defendant's conviction because the jury was allowed to inferentially conclude that the offenses happened within Kandiyohi County.  Id at 842.  We noted that several witnesses referred to the cabin as being "on Lake Florida" or "out at Lake Florida," demonstrating that the lake is a well-known place to local residents.  Id. at 842.  The case was also tried at the Kandiyohi County courthouse and the district court appropriately instructed the jury that in order to convict Larsen, it had to find that the offenses occurred in Kandiyohi County.  Id.  Even though we concluded that the jury's verdict was sustainable based on the circumstantial evidence we stated:

Although it is better practice to offer direct proof of the name of the county in which the offenses were committed, the evidence presented in this case was sufficient to establish venue.

 

Id. 

            In a more recent case, we held that the state had established the venue of a sexual-assault case by establishing the location of the crime as a well-known site within Minneapolis.  State v. Bahri, 514 N.W.2d 580, 583 (Minn. App. 1994) rev. denied, (June 15, 1994).  Bahri argued that his convictions for sexual assault should be vacated because the state failed to present direct evidence to the jury that the offenses occurred in Hennepin County.  Id. at 582.  We again reiterated that direct proof of venue is not essential: "an appellate court may find that venue was proven where the state places the offense in a particular city in the state."  Id. at 583.  Because the district court properly instructed the jury that a separate element of the crime was finding venue in Hennepin County, the jury's subsequent guilty verdicts indicated "the jury inferentially found that venue existed."  Id. 

            Precedent allows that venue may be proven by circumstantial evidence; evidence that the crime occurred in a well-known city, or at a well-known location, can prove venue as to a particular county.  See, e.g., State v. Trezona, 286 Minn. 531, 176 N.W.2d 95 (1970) (holding that evidence that the offense occurred on a particular highway and street and at the "Benson airport" was sufficient to establish venue in Ramsey County); Bahri, 514 N.W.2d at 583 (holding that venue in Hennepin County was established when the state placed the offenses near the nightclubs at the Riverplace entertainment complex in Minneapolis); Larsen, 442 N.W.2d at 842 (holding that the description of the occurrence at Lake Florida was sufficient to establish venue in Kandiyohi County).

Appellant contends that we should view the evidence as of the close of the state's case and disregard what appellant testified to during appellant's case in chief.  By doing so, appellant argues, it forces the state to sustain its constitutional burden of proving all the elements of a crime beyond a reasonable doubt without the aid of appellant's testimony or evidence.  Appellant's argument has substantial merit,[1] but even without appellant's admission that he was driving in Bloomington near the Microtel Inn when he was stopped, we conclude the state's evidence was sufficient as a matter of law for the jury to return a guilty verdict.  First, Paul, who arrested appellant, and Officer Michael Larson, who administered the intoxilyzer test, testified that they are Bloomington police officers.  Second, the trial took place at the Hennepin County Government Center.  Third, the record of the intoxilyzer test, which was admitted into evidence during the state's case-in-chief, shows the "Bloomington PD" as the arresting department and "Hennepin" as the county of arrest.  Finally, like the Larsen and Bahri decisions, here the jury was properly instructed by the district court that they must find that appellant's offenses occurred in Hennepin County.  By returning guilty verdicts, the jury inferentially concluded that the Microtel Inn on 494 and the city of Bloomington are located in Hennepin County.  We affirm appellant's convictions because viewing the evidence in the light most favorable to the convictions demonstrates that the evidence supports the jury's verdicts.

            Affirmed.

[1] Appellant's venue motion is clearly not frivolous and the district court accurately described this issue as "troublesome."  The district court also noted that a different result would obtain if the situs of the offense were in a more obscure location.  But because we agree with the district court that a jury could reasonably infer from the record in this case that the offense occurred in Hennepin County, we affirm.  The state, nonetheless, bears the burden of establishing venue and the better practice is to identify the county of the offense directly, clearly, and unequivocally.