                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-1915

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                    Daniel Gebreamlak,
                                        Appellant.

                                Filed December 12, 2016
                                       Affirmed
                                      Ross, Judge

                              Ramsey County District Court
                                File No. 62-CR-13-1057

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

John J. Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Appellate Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Smith, Tracy M., Presiding Judge; Ross, Judge; and

Rodenberg, Judge.

                         UNPUBLISHED OPINION

ROSS, Judge

       A jury learned that a police officer saw Daniel Gebreamlak speeding, temporarily

losing control of his car, failing to signal a lane change, and failing to promptly stop when
the officer signaled him to stop. The jury also learned that the officer noticed that

Gebreamlak smelled like an alcoholic beverage, fumbled for his driver’s license, had

bloodshot and watery eyes, and slurred his speech. The officer administered both the

horizontal- and vertical-gaze nystagmus tests, which indicated that Gebreamlak was

intoxicated. The jury found Gebreamlak guilty of driving under the influence of alcohol,

and Gebreamlak asks us to reverse his conviction because, he maintains, the evidence was

insufficient to prove him guilty. We are unpersuaded by his argument and affirm.

                                          FACTS

       The state charged Daniel Gebreamlak with one count of first-degree driving while

impaired and one count of first-degree refusal to submit to a chemical test. The district

court dismissed the test-refusal charge and held a jury trial for the impaired-driving charge.

       St. Anthony Police Officer Kiel Rushton testified that he was on overnight patrol in

Falcon Heights in February 2013 when he saw a car moving fast on snow-covered Snelling

Avenue. The car turned onto Larpenteur Avenue, temporarily fishtailing out of control.

The officer followed the car on Larpenteur. He watched the car move between lanes

without signaling. The officer activated his emergency lights, but the car continued on

without immediately stopping. He followed a short distance further, and the car turned into

a parking lot and stopped.

       Officer Rushton told the jury that he approached the car and spoke to the driver,

Gebreamlak. The officer smelled the odor of an alcoholic beverage. Gebreamlak’s eyes

were watery and bloodshot. Gebreamlak slurred his words when he spoke. After Officer

Rushton asked Gebreamlak to produce his driver’s license, it appeared that Gebreamlak


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was having difficulty dividing his attention and had “an overall delay in motor skills.” The

officer perceived that Gebreamlak was intoxicated. He directed Gebreamlak to step out of

the car so he could administer field sobriety tests. Because of the unsafe surface conditions,

the officer forewent the balance tests and administered only the nystagmus tests.

       Officer Rushton described the horizontal-gaze nystagmus test, including how he

administered each of its three segments. He observed that Gebreamlak exhibited a “lack of

smooth pursuit” in the first segment, an “almost immediate[]” nystagmus in the second

segment, and a “very prevalent” nystagmus in the third segment. He said that he decided

to also administer the vertical-gaze nystagmus test. He explained that “the person who is

exhibiting vertical nystagmus has a high blood alcohol concentration for what their body

is used to.” Again the officer observed a “present and prevalent” nystagmus. Based on what

the officer saw in Gebreamlak’s driving, his odor and behavior, and his pronounced

nystagmus, he concluded that Gebreamlak was intoxicated and arrested him.

       Gebreamlak cross-examined Officer Rushton. The officer acknowledged that

drivers are sometimes nervous and have trouble finding their licenses or handling their

wallets. And he acknowledged that eye redness can result from conditions other than

alcohol consumption, that Gebreamlak spoke with an accent, and that nystagmus might

result from other depressants or natural conditions unrelated to alcohol intoxication. He

also acknowledged that Gebreamlak did not appear to have difficulty following directions

or maintaining his balance during the nystagmus test.

       The jury found Gebreamlak guilty of driving under the influence of alcohol.

Gebreamlak appeals.


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                                     DECISION

       Gebreamlak argues that the state failed to produce evidence sufficient to prove his

guilt beyond a reasonable doubt. We analyze a challenge to the sufficiency of the evidence

differently depending on whether the state relied on direct or circumstantial evidence. State

v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). Generally, we will not reverse a jury’s

guilty verdict if the jury, acting with due regard for the presumption of innocence and the

requirement of proof beyond a reasonable doubt, could reasonably conclude that the

defendant was guilty. State v. Vang, 847 N.W.2d 248, 258 (Minn. 2014). But when a

conviction rests on circumstantial evidence, we scrutinize more strictly, considering

whether the proved circumstances and the reasonable inferences drawn from those

circumstances are consistent with a defendant’s guilt and inconsistent with any other

rational hypothesis. State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010).

       Gebreamlak argues that we should apply the circumstantial-evidence standard of

review because the jury had to infer that alcohol impaired his ability to drive. The state

suggests that we should apply the direct-evidence standard. We are convinced that the

conviction withstands our review under either standard.

       Under the heightened-scrutiny test, we first identify the circumstances proved,

which are those circumstances that are consistent with the guilty verdict. Id.; State v.

Hawes, 801 N.W.2d 659, 668–69 (Minn. 2011). We next independently examine the

reasonableness of any inferences that might be drawn from those proved circumstances,

including inferences consistent with any rational hypotheses other than guilt. Al-Naseer,

788 N.W.2d at 473–74.


                                             4
       Officer Rushton’s testimony consistent with the guilty verdict informs us that

Gebreamlak was speeding, temporarily lost control of his car while turning, failed to signal

a lane change, failed to immediately stop when signaled, and had the tell-tale signs of

intoxication—bloodshot and watery eyes, slurred speech, delayed and fumbling motor

skills, divided-attention difficulties, and the strong odor of an alcoholic beverage. He also

failed every segment of both nystagmus tests administered by the officer, and the jury’s

verdict informs us that the jury was satisfied that intoxication, and not some other source,

caused the nystagmus.

       Given that the jury accepted the inference that alcohol impairment caused

Gebreamlak’s nystagmus, the second question in the analysis—whether the circumstances

allow for a rational hypothesis other than Gebreamlak’s guilt—presents a clear answer: no.

Gebreamlak argues that speeding, multiple lane changes, failing to signal, and failing to

pull over are behaviors that sober drivers might engage in. He points to the poor road

conditions as the innocent cause of his losing vehicular control, and he has answers for the

officer’s observations of his person. He urges, for example, that watery, bloodshot eyes

might have resulted from alcohol consumption that fell short of consumption necessary for

impairment. He adds that his perceived slurred speech might really have been his foreign

accent. And he suggests that his nystagmus might have resulted naturally. His argument

fails based on the circumstance, inferred from the verdict, that intoxication and not

Gebreamlak’s natural physiology, caused Gebreamlak’s nystagmus.

       Even putting aside the jury’s conclusions drawn from the nystagmus tests, however,

Gebreamlak’s supposed innocent hypothesis rests on an improbable series of coincidences.


                                             5
We do not review each circumstance proved in isolation, but as a whole. State v. Andersen,

784 N.W.2d 320, 332 (Minn. 2010). And it is not the state’s burden to remove all doubt,

only all reasonable doubt. State v. Hughes, 749 N.W.2d 307, 313 (Minn. 2008). It is

certainly possible, but it is not plausible, that every one of the various indicators of

Gebreamlak’s apparent intoxication was caused by something other than intoxication. We

would have to accept as reasonable that, although Gebreamlak undisputedly had been

drinking, his failing to drive a speed consistent with the weather conditions, failing to signal

lane changes, failing to maintain control, failing to immediately respond to emergency

lights, and fumbling for his driver’s license were all caused by something other than

excessive alcohol consumption. And we also would have to accept as reasonable that a

trained and experienced police officer cannot distinguish between an accent and slurred

speech. The hypothesis that Gebreamlak was not under the influence of alcohol is not

reasonable under all the circumstances proved and taken as a whole.

       The conviction easily satisfies standard scrutiny in our review for proof beyond a

reasonable doubt, as it also easily survives heightened scrutiny.

       Affirmed.




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