Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2011-167

                                         APRIL TERM, 2012

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Grand Isle Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Matthew J. McGrath                                    }    DOCKET NO. 56-5-10 Gicr

                                                            Trial Judge: Ben W. Joseph

                          In the above-entitled cause, the Clerk will enter:

       Defendant appeals a jury conviction of driving under the influence of intoxicating liquor
(DUI). On appeal, defendant argues that the trial court erred in denying his motion for acquittal
because there was no corroborating evidence to support defendant’s statement that he was
driving while intoxicated. We affirm.

        Defendant was charged with DUI following a single-car accident. At trial, the State
presented the following evidence concerning the accident and the events occurring thereafter.
Early in the morning on May 14, 2010, State Trooper Timothy Woch responded to a call
reporting a single-car accident in South Hero. He arrived about 45 minutes after the call and met
defendant, who was in a rescue vehicle being treated for injuries to his hands. The vehicle
sustained damage after going through some mailboxes and was in a field.

        Trooper Woch testified that defendant had bloodshot, watery eyes and that his speech
was slurred. Defendant told the officer that he fell asleep and drove off the road. The officer
suspected defendant was intoxicated and asked him to perform dexterity tests. Defendant failed
the walk-and-turn exercise and the one-leg-stand test. Based on these results, Trooper Woch
arrested defendant for DUI and transported defendant to the police station for further processing.
Defendant told Trooper Woch that he had consumed one alcoholic drink, but Trooper Woch did
not question defendant about when or where he consumed his first and last drink. During the
transport to the police barracks, defendant was pleading with the officer to release him. After the
officer refused, defendant became agitated and was yelling in the vehicle. According to the
officer, defendant stated that he was a “high functioning alcoholic” and admitted he had been
“driving under the influence.”

       At the police barracks, Trooper Woch read defendant his rights and defendant became
very agitated that he had not been given a Miranda warning earlier. Due to defendant’s behavior,
Trooper Jeff Smith took over processing defendant. At trial, Trooper Smith testified that in his
opinion defendant was intoxicated based on the odor of alcohol coming from defendant,
defendant’s bloodshot and watery eyes, and his slurred speech and volatile behavior. After
reading defendant the DUI form, defendant refused to submit to an evidentiary breath test. The
jury viewed the video recording of the road-side testing and the processing at the police station.

         At the close of the State’s case, defendant moved for judgment of acquittal. He argued
that although there was evidence to show defendant was intoxicated when police observed him at
the side of the road, there was no evidence to indicate when the accident occurred or when
defendant had consumed alcohol. Therefore, defendant claimed that the State failed to present
evidence that defendant had been intoxicated while driving. The court denied the motion,
concluding that there was sufficient circumstantial evidence to support that element of the
offense. Defendant did not present any evidence, and the jury found him guilty.

        On appeal, defendant argues that his confession of operating under the influence was
insufficient to support the charge because under the corpus delicti rule there must be
corroborating evidence of the crime. According to defendant, his own statement to police was
the only evidence showing that he drove while intoxicated. He maintains that this evidence is
insufficient under the corpus delicti rule, and that his conviction must therefore be reversed.
Defendant argues that the issue was adequately preserved or, in the alternative, that there was
plain error. The State contends that the corpus delicti issue was not preserved, and there was no
plain error.

        We do not reach the preservation issue because, even assuming that the issue was
adequately preserved, we find no grounds for reversal. “At common law, corpus delicti means
the body of the crime.” State v. FitzGerald, 165 Vt. 343, 350 (1996). In the context of DUI, the
body of the crime is that a vehicle was operated on a highway while the driver was intoxicated.
23 V.S.A. § 1201(a)(2). “The purpose of the corpus delicti rule is to foreclose the possibility of
conviction based on false confession where, in fact, no crime has been committed.” FitzGerald,
165 Vt. at 350. Thus, when the State’s case is based on a confession, “the corpus delicti must be
corroborated by independent evidence.” Id. Such evidence “need not independently prove
commission of the crime beyond a reasonable doubt, however; even slight corroboration may be
sufficient.” Id.

        Here, there was adequate corroborating evidence to show that a DUI had been
committed. The following evidence was introduced: defendant was involved in a single-car
accident; defendant was the only individual found at the scene; defendant exhibited signs of
intoxication following the accident including exuding an odor of alcohol, having bloodshot,
watery eyes and slurred speech, and failing roadside tests; and two law enforcement officers
expressed their opinion that defendant was intoxicated.∗ The evidence was sufficient to support

       ∗
          The State also argues that defendant’s refusal to submit to an evidentiary breath test can
be used as evidence to corroborate his confession. See 23 V.S.A. § 1202(b) (providing right to
refuse to take an evidentiary breath test, but allowing refusal to be introduced as evidence in
criminal proceeding). Defendant challenges the use of his refusal as corroborating evidence,
arguing that his refusal does not necessarily demonstrate a consciousness of guilt and that his
own statement cannot corroborate his confession. We need not resolve this issue because we
conclude that there is enough other corroborating evidence even absent defendant’s refusal to
submit to an evidentiary breath test.


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a logical and reasonable inference that defendant was intoxicated when he was driving his car,
and the court did not err in denying the motion for acquittal.

       Affirmed.
                                             BY THE COURT:


                                             _______________________________________
                                             Paul L. Reiber, Chief Justice

                                             _______________________________________
                                             Marilyn S. Skoglund, Associate Justice

                                             _______________________________________
                                             Beth Robinson, Associate Justice




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