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Berry v. State6/25/1992
The opinion of the court was delivered by: LUMPKIN, Vice Presiding Judge.
Appellant Bobby Merrill Berry was tried by jury and convicted of Driving Under the Influence of Intoxicating Liquor, Second Offense, in violation of 47 O.S.Supp. 1986 § 11-902 [47-11-902], in the District Court of Carter County, Case No. CRF-87-351. The jury recommended punishment of one (1) year imprisonment and a two hundred dollar ($200.00) fine. The trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals.
Appellant contends in his first assignment of error that the evidence was insufficient to sustain a conviction for driving under the influence . While admitting that the evidence is entirely circumstantial, the State responds that the evidence was sufficient to sustain a guilty verdict. The standard of review in a criminal case based entirely on circumstantial evidence is whether the State's evidence tends to exclude every reasonable hypothesis other than guilt. However, the circumstantial evidence need not exclude every possibility other than guilt. When implementing this standard, we must consider the evidence and its inferences in a light most favorable to the State. Rudd v. State, 649 P.2d 791, 794 (Okl.Cr. 1982).
Mr. Dan Dvorak testified at trial that on October 24, 1987, at approximately 8:00 a.m., he was in bed when he heard a vehicle driving along the street which sounded like it was dragging something. As the noise passed his house, he heard a loud bump and the sound of the engine dying. Looking out his window he saw a white pickup which had jumped the curb and run up against a tree. He observed only one person in the vehicle and assumed that it was a man by the short length of hair visible. Mr. Dvorak stated that he immediately got dressed and, less than five minutes after having first seen the vehicle from his window, left his house. As he did so, he noticed that the front hood of the pickup was raised and that there was no longer anyone in the pickup. Walking around beside the vehicle, he encountered the Appellant. Appellant told Mr. Dvorak that something was wrong with his vehicle. Mr. Dvorak then talked with the Appellant for approximately ten minutes. During that time no cars drove by the pickup, nor did anyone else approach the pickup. Mr. Dvorak testified that when he put his head inside the pickup he smelled alcohol and observed a beer can on the front seat. Mr. Dvorak testified that he and Appellant were the only two people at the pickup until the police arrived.
Johnny Johnson, Ardmore Police Department, testified that he arrived to find a pickup up against a tree, approximately three (3) feet off the roadway. As the Appellant emitted a strong odor of alcohol, had bloodshot eyes, slurred speech and very poor balance, Officer Johnson arrested him for driving under the influence . At a subsequent breathalyzer test Appellant registered a. 17.
Appellant testified at trial that his exwife had been driving the pickup when she hit the curb. Following in a car behind her, Appellant pulled the pickup off the road. While he attempted to repair the pickup, she drove off in his car. Although Appellant was not actually seen to have driven the pickup, we find the evidence and the logical inferences therefrom, to be inconsistent with any reasonable hypothesis other than the defendant's guilt. Finding sufficient evidence to support the jury's verdict, this assignment of error is denied.
In his second and third assignments of error, Appellant argues that the State failed to introduce evidence, at the preliminary hearing, to support the prior convictions allege
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