Opinion
A-13353
09-29-2021
NELSON JOSE DEL ROSARIO, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
Henry E. Graper III, Denali Law Group, Anchorage, for the Appellant. Heather A. Stenson, Assistant Municipal Prosecutor, and Kathryn R. Vogel, Municipal Attorney, Anchorage, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the District Court, Trial Court No. 3AN-17-04095 CR Third Judicial District, Anchorage, Michael B. Logue, Judge.
Henry E. Graper III, Denali Law Group, Anchorage, for the Appellant.
Heather A. Stenson, Assistant Municipal Prosecutor, and Kathryn R. Vogel, Municipal Attorney, Anchorage, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
SUMMARY DISPOSITION
Nelson Jose Del Rosario was convicted, following a jury trial, of operating under the influence and refusing to submit to a chemical test in violation of the Anchorage Municipal Code. On appeal, Del Rosario argues that the evidence was insufficient to support his convictions. Specifically, he argues that there was insufficient evidence that he was under the influence and that he knowingly refused to submit to a chemical test.
Anchorage Municipal Code (AMC) 09.28.020(A) & (B)(1) and AMC 09.28.022(A) & (C), respectively.
When we evaluate the sufficiency of the evidence supporting a conviction, we view the evidence - and all reasonable inferences arising from that evidence - in the light most favorable to the verdict and ask whether a reasonable juror could have concluded that the defendant was guilty beyond a reasonable doubt. We do not evaluate the weight of the evidence or witness credibility, as those are questions for the factfinder.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012) (citing Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009)).
Morrell, 216 P.3d at 576 (citing Ratliff v. State, 798 P.2d 1288, 1291 (Alaska App. 1990)).
At trial, Anchorage Police Captain Sean Case testified that he initiated a traffic stop after observing Del Rosario's vehicle drift across lanes and bounce off the curb. During the stop, Case and a backup officer, Officer Pamela McClure, noticed that Del Rosario had bloodshot, glazed-over eyes, and McClure saw Del Rosario swaying when he exited his car. They arrested Del Rosario after he performed poorly on field sobriety tests and took him to the police station to be processed for driving under the influence.
McClure and Officer Jose Badillo testified that, at the station, Del Rosario received instructions on how to provide a breath sample in both English and Spanish (his first language), as well as three opportunities to do so. But Del Rosario struggled to follow the instructions and vomited after his second try - which, according to Badillo, made the processing room smell strongly of alcohol. Ultimately, Del Rosario failed to provide a useable breath sample.
Taken together, this evidence - viewed in the light most favorable to the verdicts -was sufficient for a reasonable juror to conclude that Del Rosario drove while under the influence and that he knowingly refused to submit to a chemical test.
On appeal, Del Rosario argues that, given his testimony at trial, there was insufficient evidence to support his convictions. He emphasizes his testimony that his car had alignment issues (which, he says, affected his driving) and that he did not understand some of the instructions regarding the field sobriety tests because they were given to him only in English. He further notes that he told the jury that he suffers from asthma and that he was unable to provide a breath sample because the process induced an asthma attack; he also contends that the asthma attack caused him to vomit.
But Del Rosario's testimony about alignment issues with his car was contradicted by Captain Case's testimony that he observed Del Rosario's cousin drive the car away from the scene without incident after Del Rosario was arrested. And Del Rosario's testimony about asthma was contradicted by the testimony of a paramedic who examined Del Rosario at the police station and observed no signs of an asthma attack.
Ultimately, Del Rosario's argument that there was insufficient evidence requires viewing the evidence in the light most favorable to him, rather than in the light most favorable to upholding the verdicts, as we must do on appeal. We conclude that the jury could reasonably reject Del Rosario's explanations and find him guilty of the charged offenses.
The judgment of the district court is AFFIRMED.