     THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE,                      )
                                        )
                                        )
      v.                                )         I.D. No. 1609000851
                                        )
                                        )
FRANCIS E. BYRNE,                       )
                          Defendant.    )


                          Submitted: March 8, 2017
                           Decided: April 27, 2017
                           Corrected: May 8, 2017

              ORDER ON DEFENDANT’S MOTION FOR
                  JUDGMENT OF ACQUITTAL

      This 27th day of April, 2017, having considered Defendant Francis E.

Byrne‟s Motion for Judgment of Acquittal (D.I. 24); the State‟s Response

thereto (D.I. 27); Defendant Byrne‟s Reply (D.I. 28); and the record in this

matter; it appears to the Court that:

      (1)    On September 1, 2016, Delaware State Police arrested

Defendant Francis E. Byrne (“Byrne”) for multiple charges stemming from a

traffic stop conducted that same evening.

      (2)    After a one-day trial, on February 23, 2017, a unanimous jury

found Byrne guilty of Driving Under the Influence of Alcohol (“DUI”);

Aggressive Driving; Speeding; Failure to Maintain Lane; Improper
Signaling; and Following a Motor Vehicle Too Closely.1 Byrne has filed a

timely Motion for Judgment of Acquittal under Superior Court Criminal

Rule 29(c) alleging insufficiency of the evidence.2

         (3)    Specifically, Byrne argues that the State failed to prove beyond

a reasonable doubt that he was “impaired by alcohol.”3 Noting that he was

only convicted under an impairment theory, Byrne contends that the

evidence presented at trial was “not sufficient to support any rational jury‟s

finding of alcohol causation beyond a reasonable doubt.”4

         (4)    The State counters that the evidence, both direct and

circumstantial, when viewed in the light most favorable to its case, was

sufficient to allow a reasonable jury to convict the defendant.5

         (5)    A brief recounting of the evidence relevant to this motion

follows. On the evening of September 1, 2016, Corporal Andrew Pietlock

(“Cpl. Pietlock”) of the Delaware State Police was in a fully marked police

1
         Verdict Form, State v. Byrne, I.D. No. 1609000851 (Del. Super. Ct. Feb. 23,
2017).
2
       See Def. Francis E. Byrne‟s Mot. for J. of Acquittal, at 3 (D.I. 24) (Del. Super. Ct.
Mar. 2, 2017) [hereinafter “Byrne Mot.”].
3
         Byrne Mot. at 3.
4
         Id.
5
       State‟s Resp. to Def.‟s Mot. for J. of Acquittal, at 4 (D.I. 27) (Del. Super. Ct. Mar.
8, 2017) [hereinafter “State‟s Resp.”].


                                            -2-
car patrolling northbound Route 202 in North Wilmington. He there saw

Byrne‟s black Nissan pickup truck traveling at a high rate of speed, making

several unsafe lane changes both with and without a turn signal, cutting off

other drivers, and tailgating far too closely behind others. After observing

these traffic infractions, Cpl. Pietlock was able to use moving radar to

determine that Byrne was traveling at approximately 70 miles per hour in a

posted 45 mile-per-hour zone. Cpl. Pietlock activated his emergency lights

and Byrne pulled over into a parking lot, though not immediately.

      (6)      Cpl. Pietlock went to the driver‟s door of Byrne‟s pickup and

asked for Byrne‟s identification and proof of insurance. As he was speaking

to Byrne, the trooper smelled alcohol coming from the vehicle and took

notice of Byrne‟s glassy, bloodshot eyes and slurred speech. Cpl. Pietlock

asked Byrne if he had been drinking that evening. Byrne told him that he

thought he had had just two beers approximately 30 minutes before being

pulled over.

      (7)      At this point, Cpl. Pietlock had Byrne exit the pickup to

perform sobriety tests. While alighting from the cab, Cpl. Pietlock noticed

that Byrne had difficulty maintaining his balance and it appeared that he had

urinated in his pants. Cpl. Pietlock instructed Byrne to complete several

standard field sobriety tests designed to indicate impairment.         After

                                      -3-
administering four different sobriety tests, Cpl. Pietlock characterized

Byrne‟s performance as failures for all tests. He concluded that Byrne was

impaired. At this point, Cpl. Pietlock arrested Byrne and transported him to

Troop 1 where Byrne took an Intoxilyzer test.

       (8)     At trial, the State presented evidence of that Intoxilyzer test.

Byrne produced an alcohol concentration of .177 grams per 210 liters of

breath – more than twice the legal limit. Based upon this test result, the

failed field sobriety tests, and his prior observations of Byrne, Cpl. Pietlock

cited him for DUI and other charges.

       (9)     After all evidence was presented at trial, Byrne made an oral

Motion for Judgment of Acquittal, contending that the State presented

insufficient evidence for the jury to properly consider the DUI charge. The

Court heard arguments from the parties outside the presence of the jury and

subsequently denied the Motion, finding that there was sufficient evidence

for the jury to properly consider the DUI count. Byrne was convicted of

DUI under 21 Del. C. § 4177(a)(1)6 and numerous other traffic charges.




6
       DEL CODE ANN. tit. 21, § 4177(a)(1) (2016) (“No person shall drive a vehicle . . .
[w]hen the person is under the influence of alcohol.”)


                                           -4-
       (10) A criminal defendant must meet a high bar to succeed on a

Motion for Judgment of Acquittal under Superior Court Criminal Rule 29.7

The Court may enter a judgment of acquittal on a specific count only if “the

evidence is insufficient to sustain a conviction of such offense.” 8 When

evaluating the motion, the Court considers the evidence, “together with all

7
       See generally Jackson v. Virginia, 443 U.S. 307, 318–19 (1979) (explaining that
the inquiry on review of a motion for sufficiency of the evidence.

              does not require a court to „ask itself whether it believes
              that the evidence at the trial established guilt beyond a
              reasonable doubt.‟      Instead, the relevant question is
              whether, after viewing the evidence in the light most
              favorable to the prosecution, any rational trier of fact could
              have found the essential elements of the crime beyond a
              reasonable doubt. This familiar standard gives full play to
              the responsibility of the trier of fact fairly to resolve
              conflicts in the testimony, to weigh the evidence, and to
              draw reasonable inferences from basic facts to ultimate
              facts. Once a defendant has been found guilty of the crime
              charged, the factfinder‟s role as weigher of the evidence is
              preserved through a legal conclusion that upon judicial
              review all of the evidence is to be considered in the light
              most favorable to the prosecution. The criterion thus
              impinges upon „jury‟ discretion only to the extent necessary
              to guarantee the fundamental protection of due process of
              law. (citations omitted) (emphasis in original).

See also Williams v. State, 539 A.2d 164, 166-69 (Del. 1988) (discussing development of
Delaware‟s sufficiency-of-evidence standard and adoption of Jackson standard); id. at
167 (“Thus, prior to 1972, if the evidence was purely circumstantial and there was an
alternate explanation of innocence that was consistent with the evidence, the conviction
could not be sustained.”); Henry v. State, 298 A.2d 327, 330 (Del. 1972) (Delaware
Supreme Court “reconsider[ed and rejected] the rule as to circumstantial evidence long
followed in this State. That rule has been to the effect that such evidence, in order to
support a finding of guilt, must be inconsistent with any other reasonable finding.”).
8
       Del. Super. Ct. Crim. R. 29(a). See also Vouras v. State, 452 A.2d 1165, 1169
(Del. 1982).


                                           -5-
legitimate inferences therefrom . . . from the point of view most favorable to

the State.”9 “[T]he standard of review is „whether any rational trier of fact,

viewing the evidence in the light most favorable to the State, could find [the

defendant] guilty beyond a reasonable doubt of all the elements of the

crime.‟”10 “For purposes of reviewing a claim of insufficient evidence there

is no distinction between direct and circumstantial evidence.”11

       (11) To prove Byrne‟s guilt as to Driving Under the Influence of

Alcohol, the State had to demonstrate he was: (a) driving a motor vehicle;

(b) when he was under the influence of alcohol.12

       (12) One is under the influence for the purposes of § 4177(a)(1),

when the “person is, because of alcohol . . . , less able than the person would

ordinarily have been, either mentally or physically, to exercise clear

judgement, sufficient physical control, or due care in the driving of a
9
       State v. Biter, 119 A.2d 894, 898 (Del. Super. Ct. Dec. 28, 1955). See also State
v. Council, 2016 WL 3880781, at *1 (Del. Super. Ct. July 12, 2016) (citing Biter and
Vouras).
10
         Brown v. State, 967 A.2d 1250, 1252 (Del. 2009) (emphasis in original)
(alteration in original) (quoting Priest v. State, 879 A.2d 575, 577 (Del. 2005) (emphasis
added) (citation omitted)). See also Williamson v. State, 113 A.3d 155, 158 (Del. 2015).
11
        Desmond v. State, 654 A.2d 821, 829 (Del. 1994) (citing Shipley v. State, 570
A.2d 1159, 1170 (Del. 1990)). See also Council, 2016 WL 3880781, at *1 (“It is
irrelevant if most of the State‟s evidence is circumstantial since the Court does not
distinguish between direct and circumstantial evidence.”).
12
       DEL CODE ANN. tit. 21, § 4177(a)(1) (2016). See also Stevens v. State, 110 A.3d
1264, 1270–71 (Del. Super. Ct. Jan. 20, 2015), aff’d, 129 A.3d 206 (Del. 2015).


                                           -6-
vehicle.”13 The State is not required to establish the driver was “drunk” or

“intoxicated.”14     “Nor is it required that impaired ability to drive be

demonstrated by particular acts of unsafe driving.”15 Under Delaware law,

“[a] chemical test is not necessary to prove [the] impairment” required by

the statute.16 The State may meet its burden by producing circumstantial

evidence of alcohol‟s influence, and a jury may properly infer that influence

from the defendant‟s conduct, demeanor, and statements.17 And the State

may present lay or other probative testimony to establish the defendant was

under the influence of alcohol as defined by Delaware‟s statute.18 Lastly,

just as with the finding of any other necessary element, the jury may

13
       DEL CODE ANN. tit. 21, § 4177(c)(11) (2016).
14
       See Stevens, 110 A.3d at 1271. See also Lewis v. State, 626 A.2d 1350, 1355
(Del. 1993) (describing same “under the influence” element pre-codification); State v.
Baker, 720 A.2d 1139, 1142 (Del. 1998); Bennefield v. State, 2006 WL 258306, at *3
(Del. Super. Ct. Jan. 4, 2006) (citing Lewis).
15
       Lewis, 626 A.2d at 1355.
16
       Church v. State, 2010 WL 5342963, at *2 (Del. Dec. 22, 2010) (citing DEL. CODE
ANN. tit. 21, § 4177(g)(2) (2013) (“Nothing in this section shall preclude conviction of an
offense defined in this Code based solely on admissible evidence other than the results of
a chemical test of a person‟s blood, breath or urine . . . .”)); Shaw v. State, 2007 WL
866196, at *1 (Del. Jan. 25, 2007) (“Chemical testing is not required to prove
impairment.”).
17
       Church, 2010 WL 5342963, at *1–2.
18
        See State v. Durrant, 188 A.2d 526, 529 (Del. 1963) (“[T]he sobriety of a person .
. . can be determined by the direct answers of those who have seen him, and that they
may express their opinion in relation thereto, as intoxication may fairly be considered in
the realm of common knowledge”).

                                           -7-
properly infer that alcohol was the influencer of the driver‟s ability and

conduct from all evidence presented – direct and circumstantial.

      (13) When viewing the totality of the evidence and the reasonable

inferences drawn therefrom in the light most favorable to the State, it is clear

that a reasonable trier of fact could find Byrne was influenced by alcohol

when he drove. The jury was presented evidence: (a) of Byrne‟s erratic

driving, including numerous moving violations; (b) of the odor of alcohol on

Byrne‟s breath; (c) of Byrne‟s glassy and bloodshot eyes; (d) of Byrne‟s

slurred speech; (e) of Byrne‟s admission to drinking alcohol, specifically

beer, approximately thirty minutes prior to being pulled over; (f) that Byrne

urinated in his pants prior to exiting the vehicle and a second time during

field testing; (g) that Byrne stumbled upon exiting the vehicle; (h) that Byrne

was unable to follow instructions during field testing; (i) of Byrne‟s

complete and utter failure on the field tests; (j) that a chemical test, at the

very least, showed Byrne had alcohol in his system; and, (k) of Cpl.

Pietlock‟s observations as one experienced in DUI detection and

enforcement.    Much of this evidence the jury saw firsthand from the

roadside video of Byrne‟s actions and demeanor.

      (14) The jury derived these facts and circumstances from the trial

evidence, drew reasonable inferences therefrom, and found Byrne was guilty

                                      -8-
beyond a reasonable doubt of driving under the influence. No doubt, it was

proper to do so.

       (15) Byrne admitted at trial and admits now that he was impaired at

the time he was stopped by Cpl. Pietlock.19 But Byrne goes on to make the

peculiar argument that, because he was only convicted on an impairment

theory, the evidence presented was not sufficient to support the jury‟s

finding beyond a reasonable doubt that he was under the influence of

alcohol as opposed to any other possible influencing factor. Specifically,

Byrne suggests: (a) that the Horizontal Gaze Nystagmus (“HGN”), a field

sobriety test used to assess whether a driver is impaired by alcohol, was not

administered; (b) that the field sobriety tests that were administered to

determine impairment were not specific to show that alcohol caused his

impairment; and, (c) that the only evidence suggesting his admitted

impairment was caused by alcohol was a moderate odor of alcohol and an

admission of prior consumption of two beers.20 Byrne contends that the

19
       Byrne Mot. at 2. (“On this Record, it was uncontested that Defendant was
impaired at the time he was stopped by Corporal Pietlock.”).
20
        Byrne Mot. at 2–3. While he doesn‟t expressly say so, Byrne seems to be under
the misimpression that the jury must credit his claim of “just two beers” as true. Not so.
The jury was solely responsible for judging the credibility of Byrne‟s statements
presented and resolving any conflict in the testimony and evidence at trial. See Tyre v.
State, 412 A.2d 326, 330 (Del. 1980) (“[I]t was the duty of the jury to determine if the
State had proved each necessary element of the charges beyond a reasonable doubt and,
in making such determination, it does not have to accept the total testimony of one

                                           -9-
State must affirmatively prove alcohol as the cause of his impairment as

opposed to any other possible cause and that it did not do so on the facts

presented. While he protests otherwise, Byrne does, in effect, posit that the

State must disprove any other theoretical cause of impairment, even when

there is no evidence of any other cause.21 The State need not. And Byrne‟s

suggested articulation of the sufficiency-of-evidence test is one rejected

almost four decades ago.22




witness. . . . It has long been our law that the jury is the sole judge of the credibility of
the witnesses and responsible for resolving conflicts in the testimony.”). See also Chao
v. State, 604 A.2d 1351, 1363 (Del. 1992); Vouras, 452 A.2d, at 1169.
21
       Byrne Mot. at 3–4.
22
        See supra note 7. Byrne‟s principal authority in support of this argument is an
extreme outlier in Delaware‟s sufficiency-of-evidence jurisprudence where a burglar
gained entrance to a commercial establishment by smashing a glass door and the State
relied on latent fingerprint evidence on a location accessible to the public to obstain his
conviction. Monroe v. State, 652 A.2d 560, 562 (Del. 1995). The deciding three-justice
panel of the Delaware Supreme Court observed certain weakness in the State‟s case and
concluded that

               Though the State no longer needs to disprove every
               possible innocent explanation in pure circumstantial
               evidence cases, the range of abundant, innocent
               explanations for the presence of Monroe‟s prints on the
               plexiglass shards is too vast for „any rational trier of fact‟ to
               have found beyond a reasonable doubt an essential element
               of both charged offenses – namely, identity.

Id. at 567 (internal citation omitted). The Monroe Court applied its very fact-specific
sufficiency-of-evidence standard to the unique circumstances in that case and limited its
holdings to the facts presented before it. Id. Research bears out that the result in Monroe
is singular in Delaware law.


                                            -10-
       (16) While in his closing Byrne suggested to the jury that there are

multiple other theoretical possible causes of his impairment, Byrne

presented no evidence suggesting impairment by anything other than

alcohol. The State, on the other hand, presented substantial evidence from

which a rational trier of fact could infer both consumption of and

impairment by alcohol. Notably, this evidence included video footage of

Byrne‟s erratic driving, video footage of Byrne stumbling and failing to

complete four separate field sobriety tests, Cpl. Pietlock‟s testimony

describing Byrne‟s slurred speech, glassy eyes and odor of alcohol, and

Byrne‟s own admission that he had been drinking. Again, one can always be

convicted of DUI by circumstantial evidence.23 And circumstantial evidence

may be that upon which the jury relies to identify the cause of impairment in

such a case.

       (17) Byrne‟s bald assertion that the State cannot use the Intoxilyzer

reading to support this DUI conviction “because the jury logically did not

unanimously find the reading was reliable beyond a reasonable doubt”

certainly is not dispositive.24 Even without the Intoxilyzer reading, there is


23
        State v. Pritchett, 173 A.2d 886, 889 (Del. Super. Ct. Sept. 13, 1961) (“It has long
been established in this State that any conviction of any criminal charge may be sustained
on circumstantial evidence.”).
24
       Byrne Mot. at 5.

                                           -11-
sufficient evidence from which any rational trier of fact could have found

Byrne to have consumed and been impaired by alcohol while driving his

pickup.25     His jury‟s guilty verdict for Byrne‟s violation of 21 Del. C.

§ 4177(a)(1) is well-supported by the evidence presented.

      (18) The Court finds that the jury, having heard and seen all of the

evidence offered by the State and the Defense, could, and did, reasonably

conclude that there was sufficient evidence to support Byrne‟s DUI

conviction.

      IT IS HEREBY ORDERED, that Defendant‟s Motion for Judgment

of Acquittal is DENIED.


                                         /s/ Paul R. Wallace
                                         Paul R. Wallace, Judge


Original to Criminal Prothonotary

cc:   Dominic A. Carrera, Jr., Esquire, Deputy Attorney General
      Edmund Daniel Lyons, Esquire




25
      See, e.g., Stevens, 129 A.3d at 210–12; Church, 2010 WL 5342963, at *2; Shaw,
2007 WL 866196, at *1–2.


                                       -12-
