State of Minnesota v. Tchad Tu Henderson , 890 N.W.2d 739 ( 2017 )

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0575
State of Minnesota,
Respondent,
vs.
Tchad Tu Henderson,
Appellant.
Filed January 30, 2017
Affirmed in part, reversed in part, and remanded
Kirk, Judge
Anoka County District Court
File No. 02-CR-14-4578
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney, Anoka, Minnesota (for respondent)
Douglas V. Hazelton, Halberg Criminal Defense, Bloomington, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Halbrooks, Judge; and
Kirk, Judge.
SYLLABUS
The manipulation of the steering wheel of a moving motor vehicle by a passenger
constitutes “operation” of a motor vehicle under Minn. Stat. § 609.21 (2012).
OPINION
KIRK, Judge
Appellant Tchad Tu Henderson appeals his criminal vehicular operation (CVO)
convictions. He argues that: (1) the district court erred when it denied his motion to
dismiss the complaint for lack of probable cause; (2) there was insufficient evidence
presented at trial to support the district court’s finding that he operated the motor vehicle;
and (3) the district court committed plain error when it convicted him of CVO as charged
in count 1 of the complaint. Appellant asks this court to reverse his convictions and dismiss
the charges against him. Since appellant was tried and convicted, his probable cause
challenge is not relevant on appeal. See State v. Holmberg, 527 N.W.2d 100, 103 (Minn.
App. 1995), review denied (Minn. Mar. 21, 1995). Because we conclude that there was
sufficient evidence presented at trial to support the court’s finding that appellant operated
the motor vehicle, we affirm. However, the district court erred when it entered a conviction
on count 1 of the complaint, and we reverse entry of that conviction and remand to the
court to amend the warrant of commitment and to determine if resentencing is necessary.
FACTS
On July 22, 2014, appellant was charged with one count of CVO causing great
bodily harm due to grossly negligent conduct, in violation of Minn. Stat. § 609.21, subd.
1(1) (2012), and three counts of CVO causing great bodily harm as a result of operating a
motor vehicle in a negligent manner while under the influence of alcohol negligent/alcohol,
in violation of Minn. Stat. § 609.21, subd. 1(2)(i) (2012). Appellant moved to dismiss the
charges, arguing that the state failed to establish probable cause that he operated the motor
vehicle. Following a contested hearing, the district court concluded that there was
sufficient probable cause to support the charges and denied appellant’s motion.
The district court held a one-day court trial on November 18, 2015. Appellant
stipulated that the injuries B.H., B.F., and A.S. sustained in the crash constituted great
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bodily harm, that the crash occurred on July 20, 2014 in Anoka County, and that he was
under the influence of alcohol at the time of the crash. The district court considered the
following evidence on the remaining contested element of whether appellant operated the
vehicle:
B.H. testified that she went to a bar with B.F. to meet appellant and A.S. B.H. did
not consume alcohol that night, but the others did. At the bar, appellant appeared to be
drunk. He was slurring his words, tripping over his own feet, and he did not seem very
coherent. When the bar closed, the group decided that B.H. would drive them to appellant’s
friend’s house because she was sober. B.H. did not have a valid driver’s license. Appellant
was the front-seat passenger and began arguing with B.H. over the directions to his friend’s
residence.
B.H. testified that she pulled over at a gas station, verified appellant’s friend’s
address, and started the navigation system on appellant’s cellphone. Before pulling out of
the gas station, B.H. instructed everyone to put on their seatbelts, which made appellant
angry and argumentative, but he complied.
After B.H. pulled out of the gas station, the arguing subsided, but then appellant told
B.H. that she missed a turn, and he “took the steering wheel and yanked it towards” himself.
This caused B.H. to lose control of the vehicle and it crashed, landing upside down. B.H.
testified that when appellant pulled the steering wheel she had both hands on the wheel but
could not resist because of the force he used.
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Officer Adam Jacobson of the Coon Rapids Police Department testified that after
the crash, B.H. provided a preliminary breath test sample in an ambulance on scene, and
that the results indicated that she did not have any alcohol in her system.
Officer William Hammes of the Coon Rapids Police Department testified that he
identified appellant at the scene of the crash. At that time, appellant told Officer Hammes
that he could not remember what happened. Officer Hammes also identified B.H. and
spoke to her in the ambulance. B.H. relayed the same version of events that she testified
to at trial.
Officer Hammes testified that he went to the hospital to obtain a statement from
appellant. Appellant told Officer Hammes that “out of nowhere they crashed” and that
after the crash B.H. yelled at him about grabbing the steering wheel. Appellant said that
he could not remember if he grabbed the steering wheel. After appellant was released from
the hospital, he was transported to the Anoka County Jail and during the drive to the jail
he began insisting to Officer Hammes that he did not grab the steering wheel.
Appellant initially testified that he was not arguing with B.H. after they left the bar,
but then he testified that they were arguing, but it was not serious. Appellant testified that
he wanted B.H. to pull over so they could figure out how to get to his friend’s house.
Appellant then described the accident, testifying that he was still arguing with B.H., who
was distracted and missing turns. Then, just before the crash, appellant saw the telephone
pole and wire and said, “look out,” because he believed the vehicle was going to hit the
pole.
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Appellant denied touching the steering wheel and claimed that B.H.’s version of the
accident was a lie. Appellant testified that he was drinking alcohol before the accident and
that he believed his alcohol concentration was a 0.15 or 0.16. He also confirmed that right
after the crash, he told law enforcement that he could not remember what had happened,
and that at the hospital he told law enforcement that he could not remember grabbing the
steering wheel.
The district court found appellant guilty of all four counts of CVO, entered
convictions on all four counts, and sentenced appellant on counts 2-4.
This appeal follows.
ISSUES
I. Was there sufficient evidence presented at trial to support the district court’s
finding that appellant operated the motor vehicle?
II. Did the district court commit plain error when it convicted appellant of CVO
as charged in count 1 of the complaint?
ANALYSIS
I. There was sufficient evidence presented at trial to support the district court’s
finding that appellant operated the motor vehicle.
When a sufficiency-of-the-evidence claim involves a question of whether the
defendant’s conduct meets the statutory definition of an offense, an appellate court is
presented with a question of statutory interpretation that is reviewed de novo. See State v.
Hayes, 826 N.W.2d 799, 803 (Minn. 2013). When interpreting a statute, we give its words
and phrases their plain and ordinary meaning. State v. Peck, 773 N.W.2d 768, 772 (Minn.
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2009). The threshold issue in a statutory-interpretation analysis is whether the statute’s
language is ambiguous. Id. In considering a claim of insufficient evidence, this court’s
review is limited to a thorough analysis of the record to determine whether the evidence,
when viewed in the light most favorable to the conviction, was sufficient to allow the jurors
to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The
reviewing court must assume that “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 when resolution of the matter depends mainly on conflicting testimony.
State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).
“[Appellate courts] use the same standard of review in bench trials and in jury trials
in evaluating the sufficiency of the evidence.” State v. Palmer, 803 N.W.2d 727, 733
(Minn. 2011). The reviewing court will not disturb the verdict if the factfinder, acting with
due regard for the presumption of innocence and for the requirement of proof beyond a
reasonable doubt, could reasonably conclude that the defendant was guilty of the charged
offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).
Appellant was charged with four counts of CVO under Minn. Stat. § 609.21, subds.
1(1) (“A person is guilty of criminal vehicular . . . operation . . . if the person causes injury
to . . . another as a result of operating a motor vehicle . . . in a grossly negligent manner[.]”),
1(2)(i) (“A person is guilty of criminal vehicular . . . operation . . . if the person causes
injury to . . . another as a result of operating a motor vehicle . . . in a negligent manner
while under the influence of . . . alcohol.”). Minn. Stat. § 609.21 (2012) does not contain
a definition of “operation.” These subdivisions have been renumbered and their language
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has been modified since appellant was charged and convicted, but the new statutory
language did not add a definition of operate. See Minn. Stat. § 609.2113, subds. 1(1),1
1(2)(i) (2014).2
Appellant argues that there was insufficient evidence presented at trial that he
operated the vehicle. Appellant argues that, even if he grabbed the steering wheel, he was
only in physical control of the vehicle and was not operating it, which is insufficient to
support a CVO conviction. Appellant argues that this court should use the definition of
“operate” provided in CRIMJIG 29.02 (driving while under the influence of alcohol
(DWI)), which provides that “[a] person ‘operates’ a motor vehicle when the person
manipulates or activates any of the controls of a motor vehicle necessary to put the vehicle
into motion.” 10A Minnesota Practice, CRIMJIG 29.02 (2016). Appellant asserts that,
under this definition, his conduct cannot be considered to be operating a motor vehicle
because moving the steering wheel of a vehicle is necessary to keep a vehicle in motion,
but is not necessary to put a vehicle into motion.
Relying on West Bend Mutual Insurance Company v. Milwaukee Mutual Insurance
Company, appellant further argues that operation of a motor vehicle under Minn. Stat.
§ 609.21 requires a person to control both the vehicle’s steering wheel and its pedals. 384
N.W.2d 877, 879 (Minn. 1986). Accordingly, because B.H. did not “invite” him to control
1
“A person is guilty of [CVO] resulting in great bodily harm . . . if the person causes great
bodily harm to another not constituting attempted murder or assault as a result of operating
a motor vehicle . . . in a grossly negligent manner.”
2
“A person is guilty of [CVO] resulting in great bodily harm . . . if the person causes great
bodily harm to another not constituting attempted murder or assault as a result of operating
a motor vehicle . . . in a negligent manner while under the influence of . . . alcohol.”
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the steering wheel while she drove, he only interfered with her operation of the vehicle, but
did not operate the vehicle himself. See West Bend, 384 N.W.2d at 880 (“Ordinarily,
however, a vehicle has only one operator, and, unless a passenger is invited to share in that
operation, or circumstances create a plausible justification for the passenger’s assisting in
the vehicle’s operation, the vehicle is not considered to be operated by the passenger.”).
Appellant asks this court to vacate his CVO convictions.
The state argues that appellant operated the vehicle when he asserted influence over
the steering wheel because “[m]oving the steering wheel is necessary to make a vehicle
function and propel forward or backward in a legal or organized manner.” Further, the
state asserts that appellant’s physical-control argument is misplaced because physical-
control cases typically involve vehicles that are not in motion at the time of the offense but
can be easily moved. See, e.g., State v. Woodward, 408 N.W.2d 927, 928 (Minn. App.
1987) (finding that evidence that appellant was standing outside a vehicle with the engine
running and a flat tire was sufficient to prove physical control). The state asserts that the
district court properly concluded that appellant’s behavior constituted operation of the
motor vehicle.
The state further argues that appellant’s conduct fits the plain meaning of
“operation” under Minn. Stat. § 609.21 and notes that appellant’s reliance on West Bend is
misplaced because the case does not apply to DWI cases. As this court recognized in Ives
v. Commissioner of Public Safety, “[w]e do not consider that West Bend controls our
decision in this case. Exclusionary clauses in insurance policies are interpreted narrowly
against an insurer. In contrast, the laws prohibiting a person from driving while intoxicated
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are given the broadest possible effect and liberally interpreted in favor of the public
interest.” 375 N.W.2d 565, 567 (Minn. App. 1985) (citations omitted). We find the state’s
argument to be persuasive that the plain meaning of operation should be applied to CVO
crimes.
Like the Ives court found in the DWI context, we find that West Bend too narrowly
construes “operate” to apply its definition to a CVO case. Although West Bend involved a
situation where the front-seat passenger grabbed the steering wheel and caused the vehicle
to crash, the West Bend court only determined the meaning of “operate” for the purpose of
establishing insurance coverage, not for the purpose of establishing criminal liability. West
Bend, 384 N.W.2d at 879. Furthermore, the West Bend court did not conclude that a front-
seat passenger’s interference with a vehicle’s steering wheel can never constitute operation
of a vehicle. See id. at 880 (“If the driver asks his passenger to assist or share in the
operation of the vehicle, as, say, by steering the moving automobile . . . perhaps it might
be said that the driver and the passenger are both ‘operating’ the automobile.”).
There is no definition of “operation” of a motor vehicle in either the CVO or DWI
statutes. See Minn. Stat. § 609.21; Minn. Stat. §§ 169A.01-.78 (2012). And although
CRIMJIG 29.02 defines “operation” as pertains to DWI offenses, CRIMJIG 11.68 does not
define “operation” as pertains to CVO offenses. 10 Minnesota Practice, CRIMJIG 11.68
(2016) (defining the elements of CVO resulting in great bodily harm). Additionally, DWI
is a traffic offense criminalized in chapter 169A, while CVO is a chapter 609 offense. CVO
is codified under the heading, “Homicide; Bodily Harm; Suicide,” a category significantly
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different than “Driving While Impaired.” Compare Minn. Stat. §§ 609.18-.22 (2012), with
ch. 169A.
In defining operation in a criminal context, this court noted in In the Matter of the
Welfare of T.J.B. that “‘[t]o drive . . . require[s] the most direct personal participation in
piloting the vehicle, ‘to operate’ would require something less, and ‘to be in physical
control’ would require the least.” 488 N.W.2d 1, 2 (Minn. App. 1992), review denied
(Minn. Sept. 30, 1992). This court concluded in T.J.B. that a defendant sitting behind the
steering wheel and starting the engine of a motor vehicle, and turning on the lights was
sufficient to establish operation of a motor vehicle. 488 N.W.2d at 3.
This court also concluded in Ives that a passenger exerts physical control over a
motor vehicle when he steps on the accelerator while another person is driving the vehicle.
375 N.W.2d at 567. But importantly, the Ives court was not asked to determine whether
interfering with the accelerator of a moving vehicle was sufficient to establish operation of
the motor vehicle, it was only asked to determine whether it established physical control.
The Ives decision does not hold that interfering with a moving vehicle’s accelerator is
insufficient to meet the definition of “operate.” Neither of these cases preclude the
conclusion that, even in a DWI case, manipulation of the steering wheel of a moving
vehicle could constitute operation. Further, they do not compel the conclusion that such
conduct could not constitute operation of a vehicle in a CVO case.
Although there is no caselaw or statutory authority directly defining “operation” of
a motor vehicle under the CVO statute, we conclude that the district court did not err when
it determined that appellant’s conduct was more than physical control and that it was
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sufficient to show that appellant was operating the vehicle as required under Minn. Stat.
§ 609.21. See Ives, 375 N.W.2d at 567 (“A drunk passenger who interferes with the safe
operation of a motor vehicle by actively tampering with its controls poses no less of a
hazard to the public safety than any other drunk driver.”). We agree that the manipulation
of the steering wheel of a moving motor vehicle by a passenger constitutes “operation” of
a motor vehicle under Minn. Stat. § 609.21. This conclusion is supported by the policy of
giving impaired driving laws the broadest possible effect in favor of public safety, the plain
meaning of the word “operate,” and the fact that the vehicle was not stationary when
appellant manipulated the steering wheel.
We also conclude that appellant’s sufficiency-of-the-evidence challenge fails under
this definition. B.H. testified at trial that she was sober at the time of the accident and that
appellant caused the accident by grabbing the steering wheel and jerking it toward him.
B.H.’s version of events remained consistent from immediately after the accident through
trial. In contrast, appellant’s version of events changed over time. Accordingly, viewing
the evidence in the light most favorable to the conviction, and assuming the district court
believed B.H.’s testimony and disbelieved appellant’s conflicting testimony, there was
sufficient evidence presented to the district court to conclude beyond a reasonable doubt
that appellant manipulated the moving vehicle’s steering wheel.
II. The district court erred when it entered a conviction on count 1 of the
complaint.
Appellant asserts, without citing to any legal authority, that it was plain error for
the district court to convict him of all four counts of CVO because there were only three
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persons other than appellant injured in the accident, and it is improper for him to be
convicted for injuring himself. The state argues that appellant forfeited this argument on
appeal because he failed to provide sufficient legal argument. See State v. Krosch, 642
N.W.2d 713, 719 (Minn. 2002); State v. Modern Recycling, Inc., 558 N.W.2d 770, 772
(Minn. App. 1997); see also State v. Beaulieu, 859 N.W.2d 275, 278-79 (Minn. 2015). But
appellant cannot have forfeited this issue. See Spann v. State, 740 N.W.2d 570, 573 (Minn.
2007).
According to the record, count 1, CVO causing great bodily harm due to gross
negligence, was intended to be a catchall for either one or all three of the victims because
it did not require the state to prove that appellant was under the influence of alcohol as
required in counts 2-4.
We conclude that it was error for the district court to enter conviction on count 1.3
Minn. Stat. § 609.04 (2012) “bars multiple convictions under different sections of a
criminal statute for acts committed during a single behavioral incident.” State v. Jackson,
363 N.W.2d 758, 760 (Minn. 1985). “When the defendant is convicted on more than one
charge for the same act the court is to adjudicate formally and impose sentence on one
count only.” Spann, 740 N.W.2d at 573 (alteration omitted) (quotation omitted). In this
case, the district court entered three convictions, one for each victim, under Minn. Stat.
§ 609.21, subd. 1(2)(i), and also entered an additional conviction, intended to be a catchall,
under Minn. Stat. § 609.21, subd. 1(1). Entering the conviction for count 1 (the catchall)
3
The record does not contain a transcript of the sentencing hearing, but the warrant of
commitment indicates that convictions were entered on all four counts of the complaint.
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was error because it was a second conviction under a different section of a criminal statute
for crimes committed during a single behavioral incident. See Jackson, 363 N.W.2d at
760. This court “may vacate or modify a sentence on many grounds, including that the
sentence is unreasonable or inappropriate, or that such a result is in the interest of fairness
and uniformity.” State v. Bertsch, 707 N.W.2d 660, 667 (Minn. 2006) (citations and
quotation omitted); see also Minn. Stat. § 244.11, subd. 2(b) (2016); Minn. R. Civ. App.
P. 103.04 (“On appeal from or review of an order the appellate courts may review . . . any
other matter as the interest of justice may require.”). We reverse the entry of conviction
on count 1 and remand to the district court to amend the warrant of commitment, and to
resentence, if necessary. See State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984)
(holding that, although a defendant may be “convicted on more than one charge for the
same act,” the district court must only “adjudicate formally and impose sentence on one
count”).
DECISION
Because the district court did not err in finding that appellant’s conduct constituted
operation of a motor vehicle under Minn. Stat. § 609.21 and there was sufficient evidence
presented at trial to support appellant’s four CVO convictions, we affirm them. But
because count 1, CVO causing great bodily harm due to grossly negligent conduct, arose
out of the same behavioral incident and is related to the same victims as appellant’s other
CVO convictions, we reverse the entrance of conviction on count 1, remand to the district
court to amend the warrant of commitment, and to determine if resentencing is necessary.
Affirmed in part, reversed in part, and remanded.
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