This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA

IN COURT OF APPEALS

A13-2309

State of Minnesota,

Respondent,

vs.

Joseph Ricardo Mastrey,

Appellant.

Filed December 15, 2014

Affirmed

Reyes, Judge

Hennepin County District Court

File No. 27-CR-12-31036

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

Susan L. Segal, Minneapolis City Attorney, Zenaida Chico, Assistant City Attorney, 

Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Bethany L. O’Neill, Special 

Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Reyes, Judge; and 

Crippen, Judge.

*

 

 

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to 

Minn. Const. art. VI, § 10.
2

U N P U B L I S H E D O P I N I O N

REYES, Judge

Appellant challenges his DWI convictions, arguing that the evidence was 

insufficient to prove that he drove while under the influence of alcohol. We affirm.

FACTS

This case arises from property damage that occurred in the early morning hours of 

July 28, 2012, after which the state charged appellant Joseph Ricardo Mastrey with 

(1) third-degree DWI in violation of Minn. Stat. § 169A.20, subd. 1(5) (2010); (2) thirddegree DWI in violation of Minn. Stat. § 169A.20, subd. 1(1) (2010); and (3) careless 

driving in violation of Minn. Stat. § 169.13, subd. 2 (2010). The state later amended the 

complaint to include a misdemeanor charge of failure to notify an owner of property 

damage in violation of Minn. Stat. § 169.09, subd. 5 (2010).

M.D. testified that he was sleeping in the front bedroom of his mother’s home 

when he heard Mastrey (the next-door neighbor), his wife, and two other people get into 

a car around 2:00 a.m. M.D. heard the group return 15 to 20 minutes later and observed 

the group “[d]rinking [beer], talking, laughing, [and] making noise” outside. He then saw 

Mastrey “and his male friends” leave “through the gate,” and heard an engine start, “a 

revving of the motor,” “wheels spinning, screeching tires, [and] a crash or smash-type 

sound.”

B.C. testified that he was watching a movie at his grandmother’s house when he 

heard the crash. He ran outside to see if anyone was injured and saw “a nice new hole on 

the corner” of his grandmother’s garage. B.C. also observed “black tire marks going 
3

directly from [Mastrey’s] driveway across the alleyway and directly into [the] garage.” 

B.C. spoke with M.D., who had exited his mother’s home after the crash and called 911. 

During the call, B.C. stated that his neighbor’s husband (Mastrey) had crashed into the 

garage and had taken off because that was “what everybody else who heard it said.” B.C. 

also indicated that Mastrey was drunk, but admitted at trial that he had heard this from 

M.D. and that he did not know whether Mastrey was actually drunk at the time of the 911 

call.

While on the phone with the dispatcher, B.C. observed Mastrey “pulling up right 

now” in a blue pickup truck and parking in front of Mastrey’s house. B.C. knew that the 

vehicle belonged to Mastrey because he had “seen him enter and exit the vehicle on the 

driver’s side many times over the years.” He identified Mastrey as the driver and 

recognized the passenger, but did not know the passenger’s name. M.D. also saw the 

blue pickup that he had seen Mastrey drive on prior occasions. M.D. saw two men in the 

vehicle, was “100 percent positive” that Mastrey was the driver, and was “very sure” that 

he saw Mastrey exit from the driver’s side of the vehicle.

M.D. then approached Mastrey and asked him “what happened.” According to 

M.D., Mastrey responded “[t]hat he just didn’t do it.” While they were talking, M.D. 

observed that Mastrey “appeared to be drunk [and] smelled of liquor.” Mastrey’s speech 

was “slurred” and his walk was “[a] little side to side.”

Mastrey’s friend, A.H., provided a different version of events. A.H. testified that 

he was at Mastrey’s home on July 28 with “maybe three other people.” He thought that 

“someone asked [Mastrey] for a ride to a store or something.” When Mastrey returned, 
4

he told A.H. that he “was in a fight with his neighbor.” A.H. then saw Mastrey pour 

himself two small glasses of whiskey and go back outside. These drinks were the only 

drinks that A.H. saw Mastrey consume that evening. A.H. admitted on the stand that 

“some of this has kind of been reminded to me.” A.H. explained that conversations with 

Mastrey and Mastrey’s wife helped him remember what happened during the night in 

question and stated, “I know what I’ve been told. I can’t really say for myself.”

Minneapolis Police Officers Nicholas Englund and Jesse Standal responded to a 

call from dispatch around 3:00 a.m. “regarding a property damage accident.” Officer 

Englund observed damage to the front passenger side of the blue pickup “that would be 

consistent with it running into a building” along with glass and pieces of the truck on the 

ground. He also observed damage to the garage that “matched the same height” as the 

pickup’s headlight. The officers ran the truck’s license plate and learned that Mastrey 

was the registered owner. Officer Standal took pictures of the pickup and the damage to 

the garage. While doing so, he “placed [his] hand on the hood and the engine area was 

still radiating heat, which led [him] to believe that the vehicle had recently been driven.” 

According to Officer Englund, he located Mastrey and asked him if he had driven 

his truck “within the last 20 or 30 minutes, and he said that he hadn’t driven his truck, nor 

had anyone driven his truck, in that time.” During this conversation, Officer Englund 

observed “slurred speech and watery eyes.” He asked Mastrey if he had been drinking, 

and Mastrey responded that he had had two beers. Officer Englund then conducted a 

field sobriety test and concluded that Mastrey was intoxicated. Mastrey refused to take a 

preliminary breath test and was arrested.
5

Officer Englund transported Mastrey to the Minneapolis Chemical Testing Unit 

and read him the implied-consent advisory at 4:10 a.m. Mastrey consulted with a lawyer 

and agreed to provide a urine sample. After he was unable to provide a sample, Mastrey 

agreed to provide a blood sample. At trial, the parties stipulated that Mastrey agreed to 

provide a blood sample at 5:13 a.m. and that the sample revealed an alcohol 

concentration of .19. The jury found Mastrey guilty of all three counts in the original 

complaint and not guilty of the failure-to-notify charge. This appeal followed.

D E C I S I O N

Mastrey argues that his two DWI convictions must be reversed because the 

evidence was insufficient to prove that he drove while under the influence of alcohol.1 

“In reviewing a claim of insufficiency of the evidence, we are limited to ascertaining 

whether, given the facts in the record and the legitimate inferences that can be drawn 

from those facts, a jury could reasonably conclude that the defendant was guilty of the 

offense charged.” State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). “[T]his court 

views the evidence in the light most favorable to the jury’s verdict, assuming the jury 

believed the state’s witnesses and disbelieved any evidence to the contrary.” State v. 

Moore, 438 N.W.2d 101, 108 (Minn. 1989). “This is especially true where resolution of 

the case depends on conflicting testimony, because weighing the credibility of witnesses 

 

1 Mastrey does not challenge his careless-driving conviction on appeal. He only argues 

that the evidence was insufficient to show that he drove while under the influence of 

alcohol. A conviction for careless driving does not require evidence of driving under the 

influence. See Minn. Stat. § 169.13, subd. 2.
6

is the exclusive function of the jury.” State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 

1980).

The parties disagree regarding the test we should apply on appeal. Mastrey argues 

that the circumstantial-evidence analysis applies, while the state argues that there is direct 

evidence supporting Mastrey’s convictions. Direct evidence is “[e]vidence that is based 

on personal knowledge or observation and that, if true, proves a fact without inference or 

presumption.” Black’s Law Dictionary 636 (9th ed. 2009). Circumstantial evidence is 

“[e]vidence based on inference and not on personal knowledge or observation.” Id. “[A] 

conviction based entirely on circumstantial evidence merits stricter scrutiny than 

convictions based in part on direct evidence.” State v. Jones, 516 N.W.2d 545, 549 

(Minn. 1994).

I. Third-Degree DWI – Alcohol Concentration of .08 Within Two Hours

To convict Mastrey under Minn. Stat. § 169A.20, subd. 1(5), the state must prove 

that (1) Mastrey drove a motor vehicle; (2) his alcohol concentration was .08 or more 

within two hours of driving the motor vehicle; and (3) the driving occurred on or about 

July 28, 2012 in Hennepin County. See 10A Minnesota Practice, CRIMJIG 29.12 

(2006).

Mastrey challenges the sufficiency of the evidence for the first element and argues 

that the evidence of his driving a motor vehicle was only circumstantial.2 We disagree. 

The record contains direct evidence that Mastrey drove a motor vehicle. While he was on 

 

2

Even though Mastrey’s blood test appears to have occurred more than two hours after 

the period of Mastrey’s driving, Mastrey does not challenge the timing of the blood test. 

Mastrey therefore does not challenge the second element under subdivision 1(5).
7

the phone with the 911 dispatcher at 3:02 a.m., B.C. observed Mastrey driving his blue 

pickup back to his house and identified Mastrey as the driver. M.D. also saw Mastrey’s 

pickup return home. M.D. was “100 percent positive” that Mastrey was the driver and

“very sure” that Mastrey exited from the driver’s side of the pickup. B.C. and M.D. 

provided direct evidence that Mastrey drove a motor vehicle on July 28. See State v. 

Williams, 337 N.W.2d 387, 389 (Minn. 1983) (“Direct evidence is the testimony of a 

person who perceived the fact through his senses, and testifies to it, or physical evidence 

of the fact itself.”). This direct evidence is sufficient to sustain Mastrey’s conviction 

under section 169A.20, subdivision 1(5).3

II. Third-Degree DWI – Operating a Motor Vehicle Under the Influence of 

Alcohol

To convict Mastrey under Minn. Stat. § 169A.20, subd. 1(1), the state must prove 

that (1) Mastrey drove a motor vehicle; (2) while under the influence of alcohol; and 

(3) on or about July 28, 2012 in Hennepin County. See 10A Minnesota Practice, 

CRIMJIG 29.02 (2006). As stated above, there is direct evidence that Mastrey drove a 

motor vehicle on July 28.

 

3

There is some reference in the parties’ briefs to an affirmative defense that Mastrey’s 

test result was caused by his consumption of alcohol after driving. See Minn. Stat. 

§ 169A.46, subd. 1 (2010). Because Mastrey did not provide the required notice below, 

see id., or raise this defense before the district court, Mastrey has waived this affirmative 

defense to the charge under subdivision 1(5). See Roby v. State, 547 N.W.2d 354, 357 

(Minn. 1996) (explaining that an appellate court will not consider issues that were not 

raised before the district court). But Mastrey can introduce evidence of his post-driving 

consumption of alcohol as a defense to the charge under subdivision 1(1). See Minn. 

Stat. § 169A.46, subd. 1; State v. Bashaw, 531 N.W.2d 203, 207 (Minn. App. 1995) 

(analyzing previous versions of the statutes).
8

Mastrey argues that the evidence of his driving under the influence of alcohol was 

circumstantial and insufficient. For example, Mastrey points to B.C.’s admission that he 

told the 911 dispatcher that Mastrey was drunk based on his conversation with M.D. and 

that he did not actually know whether Mastrey was drunk at that time. See id. (“It is not 

unlawful to drink alcoholic beverages and then drive a motor vehicle. The prohibition is 

against driving a motor vehicle while under the influence of alcohol.”).

But we conclude that the record not only contains direct evidence that Mastrey 

drove a motor vehicle on July 28, but also that he was under the influence of alcohol

while doing so. M.D. testified that he saw the group at Mastrey’s home drinking beer. 

He then saw Mastrey leave “through the gate” and heard an engine start and then a crash. 

M.D. later saw Mastrey drive home and exit from the driver’s side of his pickup. 

Immediately after observing Mastrey return home, M.D. spoke to Mastrey and 

determined that Mastrey “appeared to be drunk.” M.D. testified that he smelled liquor, 

that Mastrey’s speech was “slurred,” and that Mastrey’s walk was “a little side to side.” 

These observations are direct evidence that Mastrey was under the influence of alcohol. 

See Williams, 337 N.W.2d at 389 (defining direct evidence); see also State v. Stokes, 354 

N.W.2d 53, 56 (Minn. App. 1984) (characterizing testimony that a witness smelled 

alcohol and observed slurred speech, bloodshot eyes, and unsteady movements as direct 

evidence of these conditions).

Mastrey also argues that A.H. provided direct evidence that Mastrey drank only 

after driving. But, in convicting Mastrey under section 169A.20, subdivision 1(1), the 

jury necessarily believed the state’s witnesses and disbelieved A.H.’s conflicting 
9

testimony. See Moore, 438 N.W.2d at 108. Viewing the evidence in the light most 

favorable to the jury’s verdict, see id., we conclude that there was sufficient direct 

evidence to convict Mastrey under section 169A.20, subdivision 1(1).

Even if the direct evidence was insufficient, the remaining evidence satisfies the 

heightened test for circumstantial evidence. See State v. Al-Naseer, 788 N.W.2d 469, 473 

(Minn. 2010) (stating that circumstantial evidence “warrants heightened scrutiny”). We 

apply a two-step analysis when examining the sufficiency of circumstantial evidence. 

State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). “The first step is to identify the 

circumstances proved. In identifying the circumstances proved, we defer to the jury’s 

acceptance of the proof of these circumstances and rejection of evidence in the record 

that conflicted with the circumstances proved by the [s]tate.” Id. at 598-99 (citation and 

quotation omitted). “The second step is to determine whether the circumstances proved 

are consistent with guilt and inconsistent with any rational hypothesis except that of 

guilt.” Id. at 599 (quotation omitted). “Circumstantial evidence must form a complete 

chain that, in view of the evidence as a whole, leads so directly to the guilt of the 

defendant as to exclude beyond a reasonable doubt any reasonable inference other than 

guilt.” Al-Naseer, 788 N.W.2d at 473 (quotation omitted).

Viewing the evidence in the light most favorable to the verdict, the circumstances 

proved are as follows. M.D. saw the group at Mastrey’s home drinking beer. He then 

saw Mastrey leave “through the gate” and heard an engine start and a crash. B.C. noticed 

tire tracks leading from the damaged garage to Mastrey’s driveway. Both B.C. and M.D. 

saw Mastrey’s blue pickup return to his house, and both identified Mastrey as the driver. 
10

Immediately after observing Mastrey return home and exit from the driver’s side of his 

vehicle, M.D. spoke to Mastrey, who slurred his speech and smelled of liquor. Officer 

Englund also observed that Mastrey had slurred speech and watery eyes, and Mastrey 

admitted to Officer Englund that he had consumed two beers. Finally, Mastrey failed a 

field sobriety test, consented to a blood sample, and had an alcohol concentration of .19 

at 5:13 a.m.

Mastrey argues that the circumstances proved are consistent with the rational 

hypothesis that he drank alcohol only after driving. But we identify the circumstances 

proved “in the light most favorable to the verdict and assume that the jury believed the 

[s]tate’s witnesses and disbelieved the defense witnesses.” Silvernail, 831 N.W.2d at 599

(quotation omitted). Viewing the circumstances proved in the light most favorable to the 

verdict, the jury disbelieved A.H.’s testimony that Mastrey drank only after driving. 

A.H.’s testimony is therefore not a proved circumstance, and the proved circumstances 

are inconsistent with Mastrey’s hypothesis that he drank alcohol only after driving.

Finally, Mastrey argues that, because the jury found him not guilty of failure to 

notify an owner of property damage, the jury must have concluded that someone else was 

driving the pickup. The jury was instructed that the elements of this charge were that

(1) Mastrey drove a vehicle that collided with property; (2) there was some damage to the 

property as a result of the collision; (3) Mastrey knew he was involved in an accident; 

(4) Mastrey failed to take reasonable steps to locate and notify the owner; and (5) the act 

took place on or about July 28, 2012 in Hennepin County. See Minn. Stat. § 169.09, 

subd. 5. In acquitting Mastrey of this charge, the jury simply concluded that the state 
11

failed to produce sufficient evidence of Mastrey’s guilt beyond a reasonable doubt. The 

jury did not necessarily conclude that Mastrey was not driving. Given the fact that the 

jury convicted Mastrey of two DWI charges and careless driving, Mastrey’s hypothesis 

that the jury concluded he was not driving for the failure-to-notify charge is not rational. 

See Silvernail, 831 N.W.2d at 599.

Affirmed.