This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-2309

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                               Joseph Ricardo Mastrey,
                                      Appellant.

                              Filed December 15, 2014
                                     Affirmed
                                    Reyes, Judge

                           Hennepin County District Court
                             File No. 27-CR-12-31036

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

Susan L. Segal, Minneapolis City Attorney, Zenaida Chico, Assistant City Attorney,
Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Bethany L. O’Neill, Special
Assistant Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Halbrooks, Presiding Judge; Reyes, Judge; and

Crippen, Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

REYES, Judge

      Appellant challenges his DWI convictions, arguing that the evidence was

insufficient to prove that he drove while under the influence of alcohol. We affirm.

                                         FACTS

      This case arises from property damage that occurred in the early morning hours of

July 28, 2012, after which the state charged appellant Joseph Ricardo Mastrey with

(1) third-degree DWI in violation of Minn. Stat. § 169A.20, subd. 1(5) (2010); (2) third-

degree DWI in violation of Minn. Stat. § 169A.20, subd. 1(1) (2010); and (3) careless

driving in violation of 

, subd. 2 (2010). The state later amended the

complaint to include a misdemeanor charge of failure to notify an owner of property

damage in violation of 

, subd. 5 (2010).

      M.D. testified that he was sleeping in the front bedroom of his mother’s home

when he heard Mastrey (the next-door neighbor), his wife, and two other people get into

a car around 2:00 a.m. M.D. heard the group return 15 to 20 minutes later and observed

the group “[d]rinking [beer], talking, laughing, [and] making noise” outside. He then saw

Mastrey “and his male friends” leave “through the gate,” and heard an engine start, “a

revving of the motor,” “wheels spinning, screeching tires, [and] a crash or smash-type

sound.”

      B.C. testified that he was watching a movie at his grandmother’s house when he

heard the crash. He ran outside to see if anyone was injured and saw “a nice new hole on

the corner” of his grandmother’s garage. B.C. also observed “black tire marks going


                                            2
directly from [Mastrey’s] driveway across the alleyway and directly into [the] garage.”

B.C. spoke with M.D., who had exited his mother’s home after the crash and called 911.

During the call, B.C. stated that his neighbor’s husband (Mastrey) had crashed into the

garage and had taken off because that was “what everybody else who heard it said.” B.C.

also indicated that Mastrey was drunk, but admitted at trial that he had heard this from

M.D. and that he did not know whether Mastrey was actually drunk at the time of the 911

call.

        While on the phone with the dispatcher, B.C. observed Mastrey “pulling up right

now” in a blue pickup truck and parking in front of Mastrey’s house. B.C. knew that the

vehicle belonged to Mastrey because he had “seen him enter and exit the vehicle on the

driver’s side many times over the years.” He identified Mastrey as the driver and

recognized the passenger, but did not know the passenger’s name. M.D. also saw the

blue pickup that he had seen Mastrey drive on prior occasions. M.D. saw two men in the

vehicle, was “100 percent positive” that Mastrey was the driver, and was “very sure” that

he saw Mastrey exit from the driver’s side of the vehicle.

        M.D. then approached Mastrey and asked him “what happened.” According to

M.D., Mastrey responded “[t]hat he just didn’t do it.” While they were talking, M.D.

observed that Mastrey “appeared to be drunk [and] smelled of liquor.” Mastrey’s speech

was “slurred” and his walk was “[a] little side to side.”

        Mastrey’s friend, A.H., provided a different version of events. A.H. testified that

he was at Mastrey’s home on July 28 with “maybe three other people.” He thought that

“someone asked [Mastrey] for a ride to a store or something.” When Mastrey returned,


                                              3
he told A.H. that he “was in a fight with his neighbor.” A.H. then saw Mastrey pour

himself two small glasses of whiskey and go back outside. These drinks were the only

drinks that A.H. saw Mastrey consume that evening. A.H. admitted on the stand that

“some of this has kind of been reminded to me.” A.H. explained that conversations with

Mastrey and Mastrey’s wife helped him remember what happened during the night in

question and stated, “I know what I’ve been told. I can’t really say for myself.”

       Minneapolis Police Officers Nicholas Englund and Jesse Standal responded to a

call from dispatch around 3:00 a.m. “regarding a property damage accident.” Officer

Englund observed damage to the front passenger side of the blue pickup “that would be

consistent with it running into a building” along with glass and pieces of the truck on the

ground. He also observed damage to the garage that “matched the same height” as the

pickup’s headlight. The officers ran the truck’s license plate and learned that Mastrey

was the registered owner. Officer Standal took pictures of the pickup and the damage to

the garage. While doing so, he “placed [his] hand on the hood and the engine area was

still radiating heat, which led [him] to believe that the vehicle had recently been driven.”

       According to Officer Englund, he located Mastrey and asked him if he had driven

his truck “within the last 20 or 30 minutes, and he said that he hadn’t driven his truck, nor

had anyone driven his truck, in that time.” During this conversation, Officer Englund

observed “slurred speech and watery eyes.” He asked Mastrey if he had been drinking,

and Mastrey responded that he had had two beers. Officer Englund then conducted a

field sobriety test and concluded that Mastrey was intoxicated. Mastrey refused to take a

preliminary breath test and was arrested.


                                              4
       Officer Englund transported Mastrey to the Minneapolis Chemical Testing Unit

and read him the implied-consent advisory at 4:10 a.m. Mastrey consulted with a lawyer

and agreed to provide a urine sample. After he was unable to provide a sample, Mastrey

agreed to provide a blood sample. At trial, the parties stipulated that Mastrey agreed to

provide a blood sample at 5:13 a.m. and that the sample revealed an alcohol

concentration of .19. The jury found Mastrey guilty of all three counts in the original

complaint and not guilty of the failure-to-notify charge. This appeal followed.

                                     DECISION

       Mastrey argues that his two DWI convictions must be reversed because the

evidence was insufficient to prove that he drove while under the influence of alcohol.1

“In reviewing a claim of insufficiency of the evidence, we are limited to ascertaining

whether, given the facts in the record and the legitimate inferences that can be drawn

from those facts, a jury could reasonably conclude that the defendant was guilty of the

offense charged.” State v. Merrill, 

 (Minn. 1978). “[T]his court

views the evidence in the light most favorable to the jury’s verdict, assuming the jury

believed the state’s witnesses and disbelieved any evidence to the contrary.” State v.

Moore, 

 (Minn. 1989). “This is especially true where resolution of

the case depends on conflicting testimony, because weighing the credibility of witnesses




1
  Mastrey does not challenge his careless-driving conviction on appeal. He only argues
that the evidence was insufficient to show that he drove while under the influence of
alcohol. A conviction for careless driving does not require evidence of driving under the
influence. See 

, subd. 2.

                                             5
is the exclusive function of the jury.” State v. Pieschke, 

 (Minn.

1980).

         The parties disagree regarding the test we should apply on appeal. Mastrey argues

that the circumstantial-evidence analysis applies, while the state argues that there is direct

evidence supporting Mastrey’s convictions. Direct evidence is “[e]vidence that is based

on personal knowledge or observation and that, if true, proves a fact without inference or

presumption.” Black’s Law Dictionary 636 (9th ed. 2009). Circumstantial evidence is

“[e]vidence based on inference and not on personal knowledge or observation.” 

 “[A]

conviction based entirely on circumstantial evidence merits stricter scrutiny than

convictions based in part on direct evidence.” State v. Jones, 

(Minn. 1994).

I.       Third-Degree DWI – Alcohol Concentration of .08 Within Two Hours

         To convict Mastrey under Minn. Stat. § 169A.20, subd. 1(5), the state must prove

that (1) Mastrey drove a motor vehicle; (2) his alcohol concentration was .08 or more

within two hours of driving the motor vehicle; and (3) the driving occurred on or about

July 28, 2012 in Hennepin County. See 10A Minnesota Practice, CRIMJIG 29.12

(2006).

         Mastrey challenges the sufficiency of the evidence for the first element and argues

that the evidence of his driving a motor vehicle was only circumstantial.2 We disagree.

The record contains direct evidence that Mastrey drove a motor vehicle. While he was on

2
  Even though Mastrey’s blood test appears to have occurred more than two hours after
the period of Mastrey’s driving, Mastrey does not challenge the timing of the blood test.
Mastrey therefore does not challenge the second element under subdivision 1(5).

                                              6
the phone with the 911 dispatcher at 3:02 a.m., B.C. observed Mastrey driving his blue

pickup back to his house and identified Mastrey as the driver. M.D. also saw Mastrey’s

pickup return home. M.D. was “100 percent positive” that Mastrey was the driver and

“very sure” that Mastrey exited from the driver’s side of the pickup. B.C. and M.D.

provided direct evidence that Mastrey drove a motor vehicle on July 28. See State v.

Williams, 

 (Minn. 1983) (“Direct evidence is the testimony of a

person who perceived the fact through his senses, and testifies to it, or physical evidence

of the fact itself.”). This direct evidence is sufficient to sustain Mastrey’s conviction

under section 169A.20, subdivision 1(5).3

II.    Third-Degree DWI – Operating a Motor Vehicle Under the Influence of
       Alcohol

       To convict Mastrey under Minn. Stat. § 169A.20, subd. 1(1), the state must prove

that (1) Mastrey drove a motor vehicle; (2) while under the influence of alcohol; and

(3) on or about July 28, 2012 in Hennepin County. See 10A Minnesota Practice,

CRIMJIG 29.02 (2006). As stated above, there is direct evidence that Mastrey drove a

motor vehicle on July 28.



3
  There is some reference in the parties’ briefs to an affirmative defense that Mastrey’s
test result was caused by his consumption of alcohol after driving. See Minn. Stat.
§ 169A.46, subd. 1 (2010). Because Mastrey did not provide the required notice below,
see id., or raise this defense before the district court, Mastrey has waived this affirmative
defense to the charge under subdivision 1(5). See Roby v. State, 

(Minn. 1996) (explaining that an appellate court will not consider issues that were not
raised before the district court). But Mastrey can introduce evidence of his post-driving
consumption of alcohol as a defense to the charge under subdivision 1(1). See Minn.
Stat. § 169A.46, subd. 1; State v. Bashaw, 

 (Minn. App. 1995)
(analyzing previous versions of the statutes).

                                              7
       Mastrey argues that the evidence of his driving under the influence of alcohol was

circumstantial and insufficient. For example, Mastrey points to B.C.’s admission that he

told the 911 dispatcher that Mastrey was drunk based on his conversation with M.D. and

that he did not actually know whether Mastrey was drunk at that time. See 

 (“It is not

unlawful to drink alcoholic beverages and then drive a motor vehicle. The prohibition is

against driving a motor vehicle while under the influence of alcohol.”).

       But we conclude that the record not only contains direct evidence that Mastrey

drove a motor vehicle on July 28, but also that he was under the influence of alcohol

while doing so. M.D. testified that he saw the group at Mastrey’s home drinking beer.

He then saw Mastrey leave “through the gate” and heard an engine start and then a crash.

M.D. later saw Mastrey drive home and exit from the driver’s side of his pickup.

Immediately after observing Mastrey return home, M.D. spoke to Mastrey and

determined that Mastrey “appeared to be drunk.” M.D. testified that he smelled liquor,

that Mastrey’s speech was “slurred,” and that Mastrey’s walk was “a little side to side.”

These observations are direct evidence that Mastrey was under the influence of alcohol.

See Williams, 

 (defining direct evidence); see also State v. Stokes, 

 (Minn. App. 1984) (characterizing testimony that a witness smelled

alcohol and observed slurred speech, bloodshot eyes, and unsteady movements as direct

evidence of these conditions).

       Mastrey also argues that A.H. provided direct evidence that Mastrey drank only

after driving. But, in convicting Mastrey under section 169A.20, subdivision 1(1), the

jury necessarily believed the state’s witnesses and disbelieved A.H.’s conflicting


                                             8
testimony. See Moore, 

. Viewing the evidence in the light most

favorable to the jury’s verdict, see 

 we conclude that there was sufficient direct

evidence to convict Mastrey under section 169A.20, subdivision 1(1).

       Even if the direct evidence was insufficient, the remaining evidence satisfies the

heightened test for circumstantial evidence. See State v. Al-Naseer, 

(Minn. 2010) (stating that circumstantial evidence “warrants heightened scrutiny”). We

apply a two-step analysis when examining the sufficiency of circumstantial evidence.

State v. Silvernail, 

 (Minn. 2013). “The first step is to identify the

circumstances proved. In identifying the circumstances proved, we defer to the jury’s

acceptance of the proof of these circumstances and rejection of evidence in the record

that conflicted with the circumstances proved by the [s]tate.” 

 (citation and

quotation omitted). “The second step is to determine whether the circumstances proved

are consistent with guilt and inconsistent with any rational hypothesis except that of

guilt.” 

 (quotation omitted). “Circumstantial evidence must form a complete

chain that, in view of the evidence as a whole, leads so directly to the guilt of the

defendant as to exclude beyond a reasonable doubt any reasonable inference other than

guilt.” Al-Naseer, 

 (quotation omitted).

       Viewing the evidence in the light most favorable to the verdict, the circumstances

proved are as follows. M.D. saw the group at Mastrey’s home drinking beer. He then

saw Mastrey leave “through the gate” and heard an engine start and a crash. B.C. noticed

tire tracks leading from the damaged garage to Mastrey’s driveway. Both B.C. and M.D.

saw Mastrey’s blue pickup return to his house, and both identified Mastrey as the driver.


                                              9
Immediately after observing Mastrey return home and exit from the driver’s side of his

vehicle, M.D. spoke to Mastrey, who slurred his speech and smelled of liquor. Officer

Englund also observed that Mastrey had slurred speech and watery eyes, and Mastrey

admitted to Officer Englund that he had consumed two beers. Finally, Mastrey failed a

field sobriety test, consented to a blood sample, and had an alcohol concentration of .19

at 5:13 a.m.

       Mastrey argues that the circumstances proved are consistent with the rational

hypothesis that he drank alcohol only after driving. But we identify the circumstances

proved “in the light most favorable to the verdict and assume that the jury believed the

[s]tate’s witnesses and disbelieved the defense witnesses.” Silvernail, 

(quotation omitted). Viewing the circumstances proved in the light most favorable to the

verdict, the jury disbelieved A.H.’s testimony that Mastrey drank only after driving.

A.H.’s testimony is therefore not a proved circumstance, and the proved circumstances

are inconsistent with Mastrey’s hypothesis that he drank alcohol only after driving.

       Finally, Mastrey argues that, because the jury found him not guilty of failure to

notify an owner of property damage, the jury must have concluded that someone else was

driving the pickup. The jury was instructed that the elements of this charge were that

(1) Mastrey drove a vehicle that collided with property; (2) there was some damage to the

property as a result of the collision; (3) Mastrey knew he was involved in an accident;

(4) Mastrey failed to take reasonable steps to locate and notify the owner; and (5) the act

took place on or about July 28, 2012 in Hennepin County. See 

,

subd. 5. In acquitting Mastrey of this charge, the jury simply concluded that the state


                                            10
failed to produce sufficient evidence of Mastrey’s guilt beyond a reasonable doubt. The

jury did not necessarily conclude that Mastrey was not driving. Given the fact that the

jury convicted Mastrey of two DWI charges and careless driving, Mastrey’s hypothesis

that the jury concluded he was not driving for the failure-to-notify charge is not rational.

See Silvernail, 

.

       Affirmed.




                                             11