Opinion
A174705
06-23-2022
STATE of Oregon, Plaintiff-Respondent, v. Tory Ricardo PANGELINAN, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Bruce A. Myers, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, filed the brief for respondent.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Bruce A. Myers, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.
PER CURIAM Defendant was convicted of driving under the influence of intoxicants, ORS 813.010 (2020), amended by Or Laws 2021, ch 253, § 6, ch 480, § 1. He received an enhanced fine for driving with a blood alcohol concentration (BAC) of 0.15 or higher, pursuant to ORS 813.010(6)(d) (2020). He appeals, assigning error to the trial court's denial of his motion for judgment of acquittal (MJOA). We affirm.
"We review the denial of an MJOA for whether a rational factfinder could find, after viewing the evidence in the light most favorable to the state and making reasonable inferences and credibility choices, that the state proved every element of the offense beyond a reasonable doubt." State v. Davis , 261 Or.App. 38, 39, 323 P.3d 276 (2014). Defendant was found off the side of a highway with his car stuck in a snowbank, perceptibly intoxicated. His BAC was 0.24 approximately three to three-and-a-half hours after he was found. Because a reasonable factfinder could believe defendant's initial statements that the accident had just happened and that he had last consumed alcohol over an hour before and disbelieve his subsequent conflicting statements and testimony that he only started drinking after the accident, the trial court did not err. See State v. Dollman , 303 Or.App. 168, 169-70, 463 P.3d 607, rev den , 366 Or. 827, 470 P.3d 365 (2020) (concluding that "symptoms of impairment" shortly after driving coupled with a later BAC test can "support an inference of BAC at the time of driving").
Affirmed.