State v. Mable

Per Curiam. This is an appeal from a conviction, after trial by jury, of driving while intoxicated in violation of 23 V.S.A. [340] § 1201(a) (2). Defendant’s sole claim on appeal is that the trial court erred in denying his motion for judgment of acquittal. In passing on the denial of a V.R.Cr.P. 29 motion for judgment of acquittal, we are required to review the evidence in the light most favorable to the State. State v. Driscoll, 137 Vt. 89, 100, 400 A.2d 971, 978 (1979); State v. Girouard, 135 Vt. 123, 135, 373 A.2d 836, 840 (1977). The pivotal issue is then whether that evidence fairly and reasonably tends to support the defendant’s guilt beyond a reasonable doubt. Id. We believe that it does. On December 1, 1980, defendant’s automobile was stopped by a South Burlington police officer for exceeding the posted speed limit by some eighteen miles per hour. The officer testified that defendant’s speech was slurred, his eyes were bloodshot, and his breath smelled strongly of alcoholic beverage. Moreover, the evidence establishes that defendant had difficulty performing a so-called field sobriety test, became abusive when arrested for driving while intoxicated, and twice refused to submit to an alcohol breath test. Defendant introduced evidence attempting to show that he had consumed only a small amount of beer and that his appearance and physical reactions were attributable to long hours of painting without protective eye cover. Essentially, defendant asks this Court to substitute its judgment for that of the jury which heard the testimony and had the opportunity to judge the credibility of the witnesses. This we will not do. After thoroughly reviewing the record, we are convinced that the State’s evidence fairly and reasonably supports the jury’s finding of guilt beyond a reasonable doubt. State v. Baldwin, 140 Vt. 501, 516, 438 A.2d 1135, 1143 (1981); State v. Driscoll, supra. Accordingly, we find no error in the denial of defendant’s motion for judgment of acquittal. Judgment affirmed.