State of Minnesota v. Bret Emery Vansickel ( 2016 )

This opinion will be unpublished and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
A16-0053
State of Minnesota,
Respondent,
vs.
Bret Emery Vansickel,
Appellant.
Filed October 24, 2016
Affirmed in part and remanded
Hooten, Judge
Aitkin County District Court
File No. 01-CR-15-262
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota; and
Jim Ratz, Aitkin County Attorney, Aitkin, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender (for appellant)
Considered and decided by Bratvold, Presiding Judge; Peterson, Judge; and Hooten,
Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
Appellant challenges his conviction of first-degree driving while impaired (DWI),
arguing that the evidence is insufficient and that the district court improperly entered
convictions on two counts that arose from a single act. We affirm appellant’s conviction
and remand for correction of the warrant of commitment.
FACTS
On the evening of March 8, 2015, C.L., who was ill and in bed, heard a snowmobile
approach her residence. Appellant Bret Emery Vansickel argued with C.L. about her son.
Although their conversation lasted at least 20 minutes, C.L. never saw Vansickel because
he remained outside and they spoke through two different doors of her residence. C.L. did
not hear or see anyone else outside with Vansickel. At 9:23 p.m., after Vansickel refused
to leave at her request, C.L. telephoned 911 to report that Vansickel was on her property
and refused to leave. Near the end of her conversation with law enforcement, C.L. stated
that she thought that Vansickel had just left her residence, possibly on a snowmobile.
At approximately 9:25 p.m., upon receiving information regarding C.L.’s call,
Aitkin County Deputy Sheriff Gregory Payment began heading toward Vansickel’s
residence, which was known to Deputy Payment. Approximately seven minutes later,
while en route to Vansickel’s residence, Deputy Payment came across a fresh set of
snowmobile tracks and noticed a strong odor of snowmobile exhaust. Deputy Payment
followed the tracks, which led to Vansickel’s residence, and, upon driving past the
residence, noted that the tracks did not extend past the residence. After turning around,
Deputy Payment approached Vansickel’s residence and did not see any cars or persons on
foot leaving the residence. When Deputy Payment approached, Vansickel was standing
outside his residence, approximately 15 to 20 feet away from a snowmobile, and was
wearing snow pants, a heavy winter jacket, and a scarf. Deputy Payment noticed that
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Vansickel’s eyes were watery and bloodshot, his speech was slurred, he was uneasy on his
feet, his speech was rambling and inconsistent, and he was emitting a very strong odor of
alcohol. Based on these indicia, Deputy Payment believed that Vansickel was impaired by
alcohol.
Vansickel refused to submit to standardized field sobriety testing or a preliminary
breath test, but admitted that he had been at C.L.’s residence and that he was drunk. Deputy
Payment then placed Vansickel under arrest for DWI. After placing Vansickel in the squad
car, Deputy Payment walked over to the snowmobile and noticed that water was dripping
off the track of the snowmobile and that the engine exhaust was very warm. Vansickel was
transported to the county jail and was read the implied consent advisory. Video of the
booking process at the jail and the reading of the implied consent advisory was recorded.
During the booking process at the jail, Vansickel stated, “And I’m going to lie to the judge,
tell him I wasn’t driving. I’m going to lie. I have to lie or I’m going to f--king prison, you
know what I mean?” During the reading of the implied consent advisory, Vansickel said
“I’m going to say I didn’t drive the f--king snowmobile . . . I’m going to lie and say I
didn’t.” Vansickel agreed to take a breath test, which reported an alcohol concentration of
0.21.
Vansickel was charged by complaint with two counts of first-degree DWI, for
operating a snowmobile under the influence of alcohol and for operating a snowmobile
while having an alcohol concentration over .08. Following a jury trial, Vansickel was
found guilty of both counts. The district court sentenced Vansickel to 36 months but stayed
execution of the sentence. This appeal followed.
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DECISION
I.
Vansickel argues that the evidence was insufficient to support his conviction.
Vansickel does not dispute that there was sufficient evidence that he was intoxicated upon
his arrest, but argues that the evidence was insufficient to prove that he operated or was in
physical control of a snowmobile when he was under the influence of alcohol.
We must first determine the applicable standard of review. Ordinarily, when
reviewing a claim of insufficient evidence, we undertake “a painstaking analysis of the
record to determine whether the evidence, when viewed in the light most favorable to the
conviction, was sufficient to permit the jurors to reach the verdict which they did.” State
v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). We assume that the jury
disbelieved any evidence conflicting with the verdict. Id. Appellate courts “will not
disturb the 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 of the charged offense.” Id.
If, however, circumstantial evidence is necessary to support a conviction, we apply
a heightened standard of review. State v. Sam, 859 N.W.2d 825, 833 (Minn. App. 2015).
In determining whether to apply the traditional standard of review or the heightened
circumstantial evidence standard of review, we ask whether the state presented direct
evidence sufficient to support the defendant’s conviction. “Direct evidence is evidence
that is based on personal knowledge or observation and that, if true, proves a fact without
inference or presumption,” while circumstantial evidence is “evidence based on inference
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and not on personal knowledge or observation.” Bernhardt v. State, 684 N.W.2d 465, 477
n.11 (Minn. 2004) (alterations omitted) (quotations and citation omitted).
Vansickel argues that this court should use the circumstantial evidence standard of
review, while the state argues that the traditional standard of review applies because it
presented sufficient direct evidence to sustain Vansickel’s conviction. Vansickel’s
statements that he was going to lie and say that he did not drive the snowmobile constitute
an admission that he was driving the snowmobile. “A confession is any statement by a
person in which he explicitly or implicitly admits his guilt of a crime.” State v. Vaughn,
361 N.W.2d 54, 56 (Minn. 1985). A confession is direct evidence of guilt. State v. Weber,
272 Minn. 243, 254, 137 N.W.2d 527, 535 (1965); State v. Battin, 474 N.W.2d 427, 430
(Minn. App. 1991), review denied (Minn. Oct. 23, 1991). Therefore, a confession may be
sufficient to sustain a defendant’s conviction if the defendant admits to conduct that
satisfies each element of the charged offense.
Because the state presented direct evidence that Vansickel operated a snowmobile
while impaired, we begin our analysis by applying the traditional standard of review to the
state’s direct evidence. The direct evidence presented by the state regarding whether
Vansickel drove the snowmobile consists of his statements that he was going to lie and say
that he was not driving the snowmobile. In light of Vansickel’s admissions, and the fact
that he does not challenge the sufficiency of the state’s evidence on the other elements, the
state’s direct evidence is sufficient to support his conviction.
Moreover, Vansickel’s admissions are corroborated by the following circumstantial
evidence. C.L. heard a snowmobile approach her residence and spoke with Vansickel for
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at least 20 minutes. C.L. did not hear anyone else outside with Vansickel. C.L. called law
enforcement when Vansickel would not leave her residence. Law enforcement responded
within minutes and were subsequently updated that Vansickel had left C.L.’s residence,
possibly on a snowmobile. En route to Vansickel’s residence, Deputy Payment observed
a fresh set of snowmobile tracks and a strong odor of snowmobile exhaust. The tracks led
to Vansickel’s residence and did not extend past Vansickel’s residence. Deputy Payment
did not notice any cars or persons on foot coming to or leaving from Vansickel’s residence.
When Deputy Payment approached the residence, Vansickel was standing outside,
approximately 15 to 20 feet away from a snowmobile and wearing snow pants and a heavy
winter jacket. After putting Vansickel under arrest for DWI, Deputy Payment noticed that
water was dripping off the track of the snowmobile and that the engine exhaust was very
warm. We conclude that the evidence was sufficient to support Vansickel’s conviction.
II.
Vansickel argues that the district court improperly entered convictions on both
counts of first-degree DWI because both of the charges arose from the same act. Minn.
Stat. § 609.04, subd. 2 (2014) provides that “[a] conviction or acquittal of a crime is a bar
to further prosecution of any included offense, or other degree of the same crime.” The
statute “bars multiple convictions under different sections of a criminal statute for acts
committed during a single behavioral incident.” State v. Jackson, 363 N.W.2d 758, 760
(Minn. 1985).
The warrant of commitment indicates that the district court entered judgment of
conviction on both counts and that Vansickel was sentenced on count two. The register of
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actions also indicates that Vansickel was convicted of both counts. And, we agree with
Vansickel that both charges arose from a single act, namely, his operation of a snowmobile
while under the influence of alcohol. However, at the sentencing hearing, the district court,
acknowledging that Vansickel was there “for sentencing on a count one, DWI first[-]degree
charge,” adjudicated and sentenced Vansickel only on that count. This court held in State
v. Staloch, 643 N.W.2d 329, 329 (Minn. App. 2002), that “[w]hen an orally pronounced
sentence varies from a written sentencing order, the orally pronounced sentence controls.”
Therefore, despite the clerical mistakes in the warrant of commitment, the district court
only entered judgment of conviction on one of the two guilty verdicts.
However, we remand to the district court to correct the clerical error in the warrant
of commitment. Although the district court only convicted Vansickel of one count of DWI,
the warrant of commitment states that Vansickel was convicted of both counts. The
Minnesota Supreme Court has instructed district courts to include only the offense of which
the defendant is being adjudicated guilty in the judgment of conviction order. State v.
Pflepsen, 590 N.W.2d 759, 767 (Minn. 1999). We direct the district court to
correct the warrant of commitment to reflect that Vansickel was only convicted and
sentenced on count one.
Affirmed in part and remanded.
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