State v. Braun

DUNN, Justice.

This is an appeal from a judgment of conviction and sentence for driving while under the influence of alcohol. We affirm.

On the evening of February 4, 1983, a Redfield, South Dakota, city policeman observed appellant Larry H. Braun back his vehicle across a city street and apparently hit another vehicle. The officer stopped appellant, who was coming from a bar, and questioned him about the alleged accident. During the conversation the officer noticed a strong odor of alcohol coming from appellant. The officer then had appellant perform some sobriety tests, which appellant failed. The officer also noticed that appellant swayed and grabbed the vehicle for balance.

The officer arrested appellant for DWI and took him to the Spink County Sheriff’s Office. Three other officers who came in contact with appellant that evening testified that appellant’s speech was slurred, his eyes were dilated and bloodshot, and he smelled of alcohol; they all agreed that he was drunk at the time. Appellant, who refused to take a blood test, testified that he did not believe he was intoxicated that evening.

An information was filed on March 18, 1983, charging appellant with driving while under the influence of alcohol. Appellant pleaded not guilty and requested a jury trial. Following a one-day trial, appellant was found guilty. The trial judge imposed a fine of $300.00, liquidated costs of $12.00, and other costs of $286.53; he also sentenced appellant to sixty days in jail, with forty days suspended upon compliance with certain terms, and he revoked appellant’s driving privileges for forty-five days.

Appellant raises two issues on appeal. His first contention is that there was *151insufficient evidence produced at trial to support his conviction. It is well settled that in determining the sufficiency of evidence on appeal, the question presented is whether or not there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt. In making such a determination, this court will accept that evidence, and the most favorable inferences that can be fairly drawn therefrom, which will support the verdict. State v. Jorgensen, 333 N.W.2d 725 (S.D.1983); State v. Moeller, 298 N.W.2d 93 (S.D.1980).

The record in this case is replete with competent, direct evidence of appellant’s guilt. Of particular importance is the testimony of four different law enforcement officers as to appellant’s condition on that evening. Therefore, we find appellant’s claim to be without merit.

Appellant’s second contention is that the trial judge abused his discretion when sentencing appellant, and in doing so, violated appellant’s constitutional and statutory rights. Specifically, appellant complains that his sentence is more severe than the sentence given to other first-time DWI offenders. He believes the sentence was issued to punish him for exercising his rights to refuse a chemical test and to have a jury trial, and for allegedly committing perjury at trial.

Appellant’s contention fails for the following reasons: First, a trial judge has broad discretion to fix a sentence within the limits outlined by statute. A sentence which is within the statutory limits is not reviewable on appeal unless it is so offensive as to shock the conscience. State v. Antelope, 304 N.W.2d 115 (S.D.1981); State v. Curtis, 298 N.W.2d 807 (S.D.1980); State v. Padgett, 291 N.W.2d 796 (S.D.1980). The sentence given here fails to shock the conscience of the court. Second, there is no evidence in the record to indicate that the sentence was given to punish appellant for exercising his rights. The sentencing judge simply gave no reasons for the specific sentence which appellant received. Furthermore, as to the allegation of punishment for possible perjury, we have specifically held that a court can consider its belief that a defendant lied at trial when sentencing the defendant. State v. Carsten, 264 N.W.2d 707 (S.D.1978). This factor may be considered by the sentencing judge in addition to numerous other factors. See State v. Conger, 268 N.W.2d 800 (S.D.1978).

The judgment of conviction and sentence are affirmed.

FOSHEIM, C.J., and MORGAN, J., concur. WOLLMAN, J., concurs specially. HENDERSON, J., dissents.