State of Minnesota v. Daniel Gary Mason ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1010
State of Minnesota,
Respondent,
vs.
Daniel Gary Mason,
Appellant.
Filed April 13, 2015
Affirmed
Chutich, Judge
Hennepin County District Court
File No. 27-CR-13-6648
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijó, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Chutich, Presiding Judge; Rodenberg, Judge; and
Reyes, Judge.
UNPUBLISHED OPINION
CHUTICH, Judge
Appellant Daniel Mason appeals his conviction of first-degree test refusal,
contending that the district court committed plain error in instructing the jury on the
elements of the charge and abused its discretion by crafting an argumentative and
unnecessary instruction regarding his defense. He also argues that the test-refusal statute
is unconstitutional. Because the district court properly instructed the jury and because the
statute is constitutional, we affirm.
FACTS
In February 2013, Minnetonka Police Officer Corey Schmidt was on patrol around
9:00 p.m. when he received a dispatch about a possible drunk driver on Excelsior
Boulevard. The information concerned a suspected drunk driver who pulled into an
Enterprise car rental lot just off Excelsior, got out of the car, and urinated. Officer
Schmidt did not see any occupied or running cars in the lot when he arrived. It had
snowed that afternoon, but Officer Schmidt did not see any tire tracks in the Enterprise
lot. But past Enterprise, in the same parking lot, Officer Schmidt saw a car in front of
Sunshine Car Wash with its headlights on. Officer Schmidt noticed tire tracks in the
snow-covered lot as if the car had just pulled in, and he also saw snow underneath the car
but no snow on it.
As Officer Schmidt approached the car, he noticed a man in the passenger seat but
no one in the driver’s seat. He then saw a man swaying back and forth and attempting to
unlock a door to the car wash. He identified this man as appellant Daniel Mason. Officer
Schmidt smelled alcohol and urine on Mason and noticed that Mason had a large wet spot
on the front of his pants.
Mason told Officer Schmidt that he had been drinking that night at the VFW and
that he stopped at the car wash, his place of employment, to pick up some beer. Based on
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the tracks in the lot, the cold weather, and the distance from the bar to the car wash,
Officer Schmidt believed that Mason had driven from the bar to the car wash. Officer
Schmidt asked if Mason would take a field sobriety test. Mason indicated that he would,
but that it would not go well. Officer Schmidt was not sure that Mason could safely
complete the test, and he also did not know if Mason’s answer meant that he would
physically resist the test. Based on Mason’s slurred speech, odor of alcohol, and red
eyes, Officer Schmidt arrested Mason for driving while impaired.
Officer Schmidt took Mason to the Minnetonka Police Department where he read
Mason the implied-consent advisory. Mason said that he wanted to speak to an attorney,
and Officer Schmidt provided him with a telephone and phonebooks. Mason called his
mother and then said they could continue the process. When Officer Schmidt asked
Mason to take a breath test, Mason again said he wanted to talk to an attorney; Officer
Schmidt again gave Mason a telephone and phonebooks. Mason made no attempt to call
anyone, however. About 19 minutes later, Officer Schmidt asked Mason to take a breath
test for the third time; Mason again asked to talk to an attorney. Officer Schmidt treated
this request as a test refusal. Mason was charged with first-degree driving while
impaired-test refusal. See Minn. Stat. § 169A.20, subd. 2 (2012).
At trial, Mason testified that he had worked at the car wash that day until around
noon, and then he and a friend went to a casino and then to the VFW. When Mason ran
out of money, the two drove to the car wash around 6:00 p.m. so that Mason could take
money from the car wash’s petty cash. Mason said that after he took the money, he and
his friend walked to a different bar down the street from the car wash. The two then left
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that bar to walk back to the car wash for more money. Mason said that his friend waited
in the car and turned on the headlights because he was having trouble opening the door.
He also said that he urinated outside the car wash. Mason said that while he was inside
getting money, a police car pulled into the lot. Mason admitted telling the officer that he
was coming from the VFW to get more beer.
The jury found Mason guilty of first-degree test refusal. The district court
sentenced Mason to 48 months in prison. Mason appealed.
DECISION
I. Jury Instructions
A district court is allowed “considerable latitude in the selection of language for
jury instructions.” State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002). This court views
jury instructions in their entirety to determine whether they fairly and adequately explain
the law. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). The instructions must
define the crime charged. Ihle, 640 N.W.2d at 916. If the instructions, read as a whole,
correctly state the law “in language that can be understood by the jury, there is no
reversible error.” State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998). A jury instruction
that misstates the law is error. State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).
The district court instructed the jury on the elements of test refusal as follows:
The elements of refusal to submit to testing are: First a
peace office[r] has probable cause to believe that Mr. Mason
drove, operated or was in physical control of a motor vehicle
while impaired by alcohol.
Probable cause means that the officers, based on their
observation, information, experience and training can testify
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to the objective facts and circumstances in the particular
situation that lead the officer to believe that Mr. Mason was
driving, operating, or in physical control of a motor vehicle
while impaired by alcohol.
The State does not have to prove beyond a reasonable
doubt that Mr. Mason was driving or impaired by alcohol,
rather, the State must prove that there w[ere] sufficient
objective facts to support an officer’s reasonable belie[f] that
Mr. Mason was driving while impaired by alcohol.
Second element. The peace officer placed Mr. Mason
under lawful arrest for driving while impaired. An arrest is
lawful when the officer has probable cause to believe that the
defendant is in violation of the law.
A. Plain error
Mason first argues these instructions improperly explained probable cause in a
subjective manner. He next contends that the instructions did not inform the jury to
determine probable cause based on the totality of the circumstances, and they did not
define probable cause as an “honest and strong suspicion.” He further asserts that the
second element did not properly define “lawful arrest.”
Because Mason did not object to the instructions at trial, we review for plain error.
See State v. Prtine, 784 N.W.2d 303, 316 (Minn. 2010). To establish plain error, “there
must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.” State
v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). If all three prongs are met, we must
assess whether we “should address the error to ensure fairness and the integrity of the
judicial proceedings.” Id.Mason bases his argument on the Minnesota Supreme Court’s decision in State v.
Koppi, 798 N.W.2d 358 (Minn. 2011). In Koppi, the district court, in instructing the jury
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on the elements of test refusal, defined probable cause as “the officer can explain the
reason the officer believes it was more likely than not that the defendant drove, operated
or was in physical control of a motor vehicle while under the influence of alcohol.” Id. at
363. The Koppi court identified three flaws with that instruction: (1) it did not require the
officer to articulate specific facts and circumstances supporting probable cause, (2) it did
not require the jury to determine if an objective officer would have probable cause based
on the totality of the circumstances, and (3) it misstated the probable cause standard as
“more likely than not” rather than the correct “honest and strong suspicion.” Id. at 363–
64.
Applying the principles of Koppi here, we do not agree with Mason’s claim that
the instruction incorrectly charged the jury with considering probable cause from a
subjective standpoint. The instruction directed the jury to consider “the objective facts
and circumstances in the particular situation.” Although the district court did not
specifically instruct the jury to consider the viewpoint of a reasonable officer, it did
instruct them to consider “objective facts.” The viewpoint of a reasonable person is
synonymous with objective observations. See State v. Cripps, 533 N.W.2d 388, 391
(Minn. 1995) (“The reasonable person standard is an objective standard . . . .”).
The district court further instructed the jury to consider whether “there w[ere]
sufficient objective facts to support an officer’s reasonable belie[f].” (Emphasis added.)
After listing the elements, the district court again instructed the jury to determine
“whether the officers had an objective and reasonable basis for concluding that Mr.
Mason was driving.” (Emphasis added.) When the instruction is read in its entirety, the
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district court correctly instructed the jury to consider the objective facts from a
reasonable officer’s perspective.
Mason’s claim that the instruction was subjective because it included the phrase,
“the officers, based on their observation, information, experience and training can testify
to the objective facts and circumstances in the particular situation” also fails. This aspect
of the instruction went to the first requirement of Koppi: that the officers recite actual
observations and circumstances to support probable cause rather than just a “gut feeling.”
798 N.W.2d at 363. More importantly, Koppi recognized that “because an officer’s
training and experience is the lens through which the fact-finder must evaluate the
reasonableness of an officer’s determination of probable cause, probable cause
incorporates the individual characteristics and intuitions of the officer to some extent.”
Id. at 362. Reasonableness is still an objective inquiry, but it is evaluated in light of the
officer’s training and experience. Id. This aspect of the instructions did not create a
subjective standard for probable cause.
Mason further claims that the instruction was erroneous because it did not include
the phrase “totality of the circumstances.” But the focus in Koppi was not on the phrase
“totality of the circumstances.” Instead, the supreme court focused on whether the jury
was instructed to consider the totality of the circumstances from a reasonable officer’s
viewpoint rather than from a particular officer’s perspective. Id. at 363–64. And while
the district court here did not use the phrase “totality of the circumstances,” it did direct
the jury to consider “the objective facts and circumstances in the particular situation,” and
it included that the state must prove “that there w[ere] sufficient objective facts to support
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an officer’s reasonable belie[f].” Because district courts are given “considerable latitude”
in crafting jury instructions, Ihle, 640 N.W.2d at 916, this portion of the instruction was
not erroneous.
Mason’s argument regarding the absence of “honest and strong suspicion”
language in the jury instruction similarly fails. In Koppi, the supreme court held the
instruction was incorrect not merely because it lacked the “honest and strong suspicion”
language, but because it gave an erroneous standard of “more likely than not.” 798
N.W.2d at 364. The supreme court noted, “The ‘honest and strong suspicion’ standard
requires more than mere suspicion.” Id.
The current pattern jury instruction, based on Koppi, instructs the jury to consider
whether the circumstances “would lead a reasonable officer to have an honest and strong
suspicion that the defendant was driving.” 10A Minnesota Practice, CRIMJIG 29.28
(Supp. 2014). Here, the district court instructed the jury to determine whether the
objective facts would “support an officer’s reasonable belie[f] that Mr. Mason was
driving.” Probable cause, in addition to being defined as an “honest and strong
suspicion,” has also at times been stated in terms of an officer’s “reasonable belief.” See,
e.g., In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1997) (noting that probable
cause requires police to have a “reasonable belief”). Accordingly, the language here
correctly defined probable cause.
Mason next claims that the instruction wrongly defined “lawful arrest.” The
instruction directed the jury to consider whether Mason was lawfully arrested and defined
lawful arrest as “when the officer has probable cause to believe that the defendant is in
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violation of the law.” This instruction essentially directed the jury to the previous
instruction defining probable cause, which gave a correct, objective definition.
Accordingly, because the earlier instruction was correct, this instruction was also correct.
See State v. Ouellette, 740 N.W.2d 355, 360 (Minn. App. 2007) (noting redundancy in
test-refusal instruction between probable cause in first element and lawful arrest in
second element), review denied (Minn. Dec. 19, 2007).
Because Mason has not established the first prong of the plain error test, it is
unnecessary to discuss the other prongs.
B. Abuse of Discretion
Mason asserts that the district court abused its discretion by adding language to the
jury instructions in two places. He contends that the district court’s inclusion of language
regarding the burden of proof and clarification of available defenses were unnecessary,
argumentative, and impermissibly shifted the burden of proof. We disagree.
Before the district court gave the instructions, it informed counsel that it intended
to clarify that the jury was not “bound to conclude that if [Mason] was not driving, he is
not guilty.” This addition was not an abuse of discretion. See Paulson v. Lapa, Inc., 450
N.W.2d 374, 378 (Minn. App. 1990) (“It is well established that correction of any alleged
misconception which the jury might have gained from the arguments of counsel by
further court instructions is a matter that rests largely in the discretion of the trial court.”),
review denied (Minn. Mar. 22, 1990).
Nor was this addition argumentative; it was a correct statement of the law. To
convict a defendant of test refusal, the state is not required to prove that a defendant was
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actually driving; it only need prove that the police had probable cause to believe that the
defendant was driving. See Minn. Stat. §§ 169A.51, .52 (2014); see also Minn. Stat.
§ 169A.20, subd. 2 (incorporating §§ 169A.51 and .52); Ouellette, 740 N.W.2d at 360(holding that prerequisites for testing under § 169A.51 are elements of criminal test
refusal); CRIMJIG 29.28 (elements of test refusal). Furthermore, Minnesota Statutes
section 169A.46 (2014), which lists affirmative defenses, omits “not driving” as an
affirmative defense to test refusal. And Minnesota caselaw does not suggest that “not
driving” is a defense to test refusal. Because the instructions correctly stated the law in
language that could be understood by the jury, no error occurred. State v. Cross, 577
N.W.2d 721, 726 (Minn. 1998).
Mason further contends that because the district court instructed the jury that his
claim of “not driving” was not a defense, it implied that he had a duty to provide some
defense to the charge against him. But the district court repeatedly informed the jury that
the state carried the burden to prove beyond a reasonable doubt that Mason was guilty
and that Mason did not have to prove anything. And the district court did not instruct the
jury that Mason must prove a defense, it merely clarified that his argument was not a
defense.
Because the district court’s jury instructions correctly stated the law and did not
shift the burden of proof, and given the considerable latitude district courts have in
crafting jury instructions, no abuse of discretion occurred.
Mason asserts that the cumulative effect of these alleged errors requires reversal.
Because the instructions were not error, this argument lacks merit.
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II. Constitutionality of the Test-Refusal Statute
Finally, Mason argues that the test-refusal statute is unconstitutional. The
Minnesota Supreme Court recently rejected Mason’s argument in State v. Bernard, ___
N.W.2d ___, 2015 WL 543160 (Minn. Feb. 11, 2015). In Bernard, the supreme court
held that a warrantless breath test of an arrested suspect is a constitutionally reasonable
search incident to arrest. Id. at *7. The supreme court also determined that a warrantless
breath test furthers the state’s interest in highway safety and is “reasonably related to the
government’s interest in keeping impaired drivers off the road.” Id. at *8. Because
encouraging drivers to submit to breath tests by criminalizing their refusal relates to the
state’s ability to prosecute drunk drivers and keep the roads safe, the supreme court held
that the test-refusal statute is constitutional. Id. at *9.
Given the recent decision in Bernard, Mason’s constitutional argument fails.
Affirmed.
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