United States v. Mirelez

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS NOV 27 2002
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-3153
v. D.C. No. 01-CR-20116-GTV
(D. Kansas)
RICHARD MIRELEZ,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, HENRY, and BRISCOE, Circuit Judges.
Richard Mirelez was convicted by a jury of driving under the influence and
driving while his license was suspended. 1 He now challenges the sufficiency of
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
1
The conduct underlying these convictions occurred at Fort Riley, Kansas, a
federal military installation. Mr. Mirelez was charged with DUI in violation of 18
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the evidence on the conviction for driving while under the influence and also
argues that the district court erred in admitting his driving record as a self-
authenticating document. For the reasons set out below, we affirm.
I
This court reviews the sufficiency of the evidence by determining whether,
“taking the evidence - both direct and circumstantial, together with the reasonable
inferences to be drawn therefrom - in the light most favorable to the government,
a reasonable jury could find the defendant guilty beyond a reasonable doubt.”
United States v. McKissick, 204 F.3d 1282, 1289 (10th Cir. 2000) (internal
quotation omitted). We do not consider the credibility of witnesses, weigh
conflicting evidence, or draw inferences ourselves. United States v. Pappert, 112
F.3d 1073, 1077 (10th Cir. 1997). Such determinations are the exclusive province
of the jury. United States v. Nieto, 60 F.3d 1464, 1469 (10th Cir. 1995).
In this case, the jury considered the direct and circumstantial evidence to
weigh more heavily for the prosecution than for defendant. That evidence
indicated that defendant crossed the center line while driving, drove at a high rate
1
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U.S.C. § 13, the Assimilative Crimes Act, and K AN . S TAT . A NN . § 8-1567(a)(5),
and driving with a suspended license in violation of 18 U.S. C. § 13 and K AN .
S TAT . A NN . § 8-262.
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of speed, failed to signal upon making a turn, smelled of an alcoholic beverage,
and had trouble with his balance in a field sobriety test. Defendant chose not to
take a breathalyzer test, so no evidence was available from that source.
On appeal, defendant presents arguments as to why these facts should not
result in the conclusion that he was driving under the influence. He contends the
inferences which led the jury to that conclusion were drawn from circumstantial
evidence and were drawn incorrectly. However, a DUI conviction may be
sustained solely through circumstantial evidence. See State v. Ward, 660 P.2d
957, 959 (Kan. 1983). Furthermore, Kansas courts have sustained DUI
convictions based on even less evidence than was presented in this case. See,
e.g., State v. Blair, 974 P.2d 121 (Kan. App. 1999) (affirming DUI conviction
where defendant was stopped for erratic driving, had smell of alcohol on breath,
failed sobriety tests, admitted having been drinking, and refused chemical tests).
If a reasonable trier of fact could find defendant guilty based on the evidence and
the inferences it could draw from that evidence, we cannot reverse a conviction
based on insufficiency of evidence. The jury in this case simply found the
prosecution’s version of the case more compelling than defendant’s version. We
cannot disturb that determination.
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II
Defendant also challenges the district court’s admission of his driving
record as a self-authenticating document under F ED . R. E VID . 902. However, we
cannot determine whether this exhibit was properly admitted under Rule 902
without reviewing a copy of the document. The document admitted by the trial
court was not included in the record on appeal and was not attached to either
party’s brief. Under 10th Cir. Rule 10.3(D)(4), the record must contain any trial
exhibits that are relevant to an issue raised on appeal and are referred to in the
brief. See also United States v. Adams, 271 F.3d 1236, 1242 (10th Cir. 2001).
Furthermore, “[t]he court need not remedy any failure by counsel to designate an
adequate record. When the party asserting an issue fails to provide a record
sufficient for considering that issue, the court may decline to consider it.” 10th
Cir. Rule 10.3(B). Accordingly, we decline to consider defendant’s argument on
this issue.
Based on the foregoing, we AFFIRM.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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