State of Minnesota, Respondent, vs. Earl Hoting, Appellant.

may not be cited except as provided by

Minn. Stat § 480 A. 08, subd. 3 (1996)

 STATE OF MINNESOTA

 IN COURT OF APPEALS

C5-97-1489

State of Minnesota,

Respondent,

vs.

Earl Hoting,

Appellant.

Filed June 9, 1998

Affirmed

Lansing, Judge

Kandiyohi County District Court

File No. K7961500

Hubert H. Humphrey III, Attorney General, Robert A. Stanich, John B. Galus, Assistant Attorneys General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Jennifer Fischer, Kandiyohi County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201 (for respondent)

John E. Mack, Mack & Daby, 26 Main Street, New London, MN 56273 (for appellant)

Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Foley, Judge.*

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

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

 LANSING, Judge

In an appeal from conviction and sentence for second-offense driving while under the influence of alcohol, Earl Hoting contends that the testimony of the deputy sheriff is so inherently incredible that it cannot provide a constitutional basis for the stop of his vehicle. Although the deputy's testimony conflicts with Hoting's and his passenger's, the record does not support the claim that it is inherently incredible, and we affirm.

FACTS

It is undisputed that Deputy Sheriff Richard Rolffs and Earl Hoting were both driving near the intersection of County Road 10 and Highway 23 in Spicer at approximately 2:00 a.m. on November 25, 1996. Relying on the testimony of Rolffs, the district court found that Rolffs observed Earl Hoting's brown vehicle traveling at a speed greater than the posted 30-mile-per-hour limit. The court further relied on Rolffs' testimony that he attempted to clock the speed of Hoting's vehicle by maintaining a constant distance between the vehicles, first with his speedometer at 30 miles per hour and then at 35 miles per hour. At both speeds Rolff testified that Hoting was "pulling away" from him. Based on his observations of speed and distance, Rolffs concluded that Hoting was speeding and stopped the vehicle.

At the same omnibus hearing at which Rolffs testified, Hoting testified that he was going 30 miles per hour and never exceeded 30 miles per hour. Hoting's passenger testified that he told Hoting to make sure he was going 30 miles per hour and that he leaned over to make sure he was going 30 and he was, and that he did not exceed the 30-mile-per-hour limit.

After the district court denied Hoting's motion to suppress the Intoxilyzer test result as the product of an unlawful stop, Hoting waived a jury trial and stipulated to the state's case. See State v. Lothenbach, 296 N.W.2d 854, 858 (Minn. 1980) (procedure for expediting appellate review of suppression issue). The stipulated facts included that Hoting was driving the vehicle, that he admitted he had consumed alcohol, that the Intoxilyzer test produced a blood alcohol reading of .17, and that Hoting had previously been convicted of driving while under the influence in March 1992.

D E C I S I O N

The standard for an investigative stop is minimal and requires only that the stop not be the product of "whim, caprice, or idle curiosity." State v. Combs, 398 N.W.2d 563, 566 (Minn. 1987). Ordinarily, if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle. See, e.g., State v. Pleas, 329 N.W.2d 329, 333-34 (Minn. 1983) (upholding stop based on officer's observation of broken windshield, no front license plate, and rear plate upside down); State v. Barber, 308 Minn. 204, 207, 241 N.W.2d 476, 477 (1976) (upholding stop based on officer's observation that license plate was wired on rather than bolted on). The district court's findings on fact issues raised at an omnibus hearing will not be reversed on appeal unless they are clearly erroneous. State v. Buchanan, 431 N.W.2d 542, 552 (Minn. 1988). And it is for the factfinder, not the appellate court, to determine the credibility of witnesses. See State v. Lodermeier, 539 N.W.2d 396, 397 (Minn. 1995).

Hoting's sole argument on appeal is that Rolffs' testimony was "inherently incredible" and therefore could not provide a basis for stopping his vehicle. "Inherently incredible" is a term used to describe evidence or testimony that is seemingly impossible under the circumstances. State v. Florence, 306 Minn. 442, 459 n.24, 239 N.W.2d 892, 903 n.24 (1976) (citations omitted). Although inherent improbability may be a basis for disregarding testimony, it is a basis to be applied by the finder of fact, not an appellate court. First Trust Co. of St. Paul v. McLean, 254 Minn. 75, 79, 93 N.W.2d 517, 520 (1958). Only in an exceptional case and when the question is free from doubt will an appellate court declare that a witness's testimony is so inherently improbable that it is unworthy of belief. Id.

Hoting advances a mathematical formula in an attempt to establish that Rolffs' version of the "clocking" sequence could not possibly be accurate. But the calculations presuppose specific time spans and distances that are not predicated on actual testimony. Furthermore, all of Hoting's calculations start from a dubious interpretation of Rolffs' answers to two questions:

  Question (by Hoting's attorney): So you must have exceeded thirty miles an hour prior to setting your speedometer at thirty. Correct--because you gained on him?

  Answer (by Rolffs): I did not exceed thirty miles an hour at that time, no.

  Question: At no time?

  Answer: Well, just when I was pacing him, sir.

The answer is ambiguous, but it appears that Rolffs is saying that during the 30-mile-per-hour clocking sequence, he did not exceed 30 miles per hour. Hoting asks us, instead, to accept that answer as a blanket statement that at no time in the entire sequence did Rolffs exceed 30 miles per hour. We reject that interpretation of the testimony.

Hoting has failed to demonstrate that Rolffs' testimony that he stopped Hoting's car because he believed he was speeding is unbelievable, much less inherently incredible. He has demonstrated that Rolffs' testimony was in conflict with his and his passenger's. But the district court was free to assess credibility, and we are required to defer to that assessment. It is within the province of the district court as the finder of fact, not the appellate court, to determine credibility of witnesses, the weight to be given to witnesses' testimony, and to make reasonable inferences from the evidence that it credited. See State v. Linder, 304 N.W.2d 902, 906 (Minn. 1981).

  Affirmed.