State of Minnesota, Respondent, vs. Michael Bruce Van Mill, Appellant.

State of Minnesota, Respondent, vs. Michael Bruce Van Mill, Appellant. A05-347, Court of Appeals Unpublished, May 9, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-347

 

State of Minnesota,

Respondent,

 

vs.

 

Michael Bruce Van Mill,

Appellant.

 

Filed May 2, 2006

Affirmed Willis, Judge

 

Polk County District Court

File No. K8-04-951

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Gregory A. Widseth, Polk County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN  56716 (for respondent)

 

John M. Stuart, State Public Defender,  Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            This is an appeal from a conviction of refusing to submit to chemical testing.  Appellant challenges a jury instruction given by the district court and the admission of certain evidence, and contends that he was denied effective assistance of counsel.  We affirm.

FACTS

 

            When Susan McKenzie returned to her home in rural Polk County on the evening of July 4, 2004, she noticed that her Buick automobile was missing from her driveway.  She assumed that appellant Michael Van Mill had taken it because he frequently used the car and had his own set of keys.  Later that evening, Van Mill arrived at McKenzie's house as she was painting the home's interior.  McKenzie concluded that Van Mill must have driven the Buick "[b]ecause it was in the driveway" when Van Mill walked into her house.  She saw that Van Mill was intoxicated.  He refused to leave, and McKenzie called the police.  She told the police dispatcher that she did not want Van Mill in her house, that he was intoxicated, and that "he's on probation."  Van Mill left the house after McKenzie placed the call, and she saw him reenter the Buick.  McKenzie resumed painting.  She did not watch to see if the Buick left her driveway.

            About 15 minutes later, Van Mill reentered McKenzie's house while drinking a beer.  McKenzie looked outside and saw headlights, which she first thought were the Buick's headlights, but then realized that they belonged to a squad car driven by Polk County Sheriff's Deputy Phillip Juve.  Deputy Juve entered the house and saw Van Mill lying on the couch.  Deputy Juve smelled a strong odor of alcohol, and he noticed that Van Mill "was slurring, had bloodshot watery eyes" and that he was "really belligerent."  He instructed Van Mill to stand, and, after a brief struggle, Deputy Juve placed Van Mill under arrest.  A set of keys was found in Van Mill's pocket and left on McKenzie's table.  Deputy Juve then asked McKenzie if she saw Van Mill drive up to her house.  According to Deputy Juve, "[McKenzie] said that right before I pulled into the yard, [Van Mill] had pulled in and she said she watched him get out of his vehicle and walk towards the house."  Deputy Juve then transported Van Mill to jail and read him the implied-consent advisory.  Van Mill declined to take a breath test. 

Van Mill was charged with refusing to submit to chemical testing under Minn. Stat. § 169 A. 20, subd. 2 (Supp. 2003).  At trial, McKenzie testified that she did not actually see Van Mill drive the Buick and that she only saw him walk up to her door.  But she also testified that on the night of the incident, she told Deputy Juve that she had in fact seen Van Mill driving.  She testified that the keys found in Van Mill's pocket belonged to the Buick, but the record does not indicate whether she informed Deputy Juve of this fact.  On direct examination by the state regarding her call to the police, McKenzie testified that she told the police dispatcher that Van Mill was on probation, which prompted Van Mill's attorney to object that her answer was not responsive to the question.  The district court overruled the objection.  McKenzie referred once more to Van Mill's probation in her testimony, and Van Mill's attorney did not object.  

Deputy Juve testified that the dispatcher told him that Van Mill was intoxicated, refused to leave McKenzie's house, and was "on probation."  Deputy Juve testified that "[t]here was also a report that [Van Mill] had used the victim's vehicle at some time, or had taken it and then had returned with it" and that Deputy Juve "verified that [Van Mill] was on probation."  When asked why he arrested Van Mill, Deputy Juve testified that he "arrested [Van Mill] for a number of different issues . . . .  [DWI] was one of the charges, I guess, that I had arrested him for."  Van Mill's attorney, who did not object to Deputy Juve's testimony that Van Mill was on probation, twice referred to Van Mill's probation during his closing argument.  Van Mill did not testify, and no witnesses testified on his behalf. 

The district court denied Van Mill's request that the jury be instructed to find that Van Mill was lawfully arrested for DWI and was read the implied-consent advisory.  The district court instructed the jury regarding the refusal to submit to chemical testing as follows:

            First, a peace officer had probable cause to believe that the defendant drove, operated or was in physical [control] of a motor vehicle while under the influence of alcohol.  "Probable cause" means that 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.

            Second, the defendant was requested by a peace officer to submit to a chemical test of the defendant's blood, breath or urine.

            Third, the defendant [r]efused to submit to the test.

            Fourth, the defendant had three previous driving impairment convictions within 10 years of July 5, 2004.

            And, fifth, the defendant's act took place on or about July 5, 2004, in Polk County, Minnesota.

            If you find that each of these elements has been proved beyond a reasonable doubt, the defendant is guilty.  If you find that any element has not been proved beyond a reasonable doubt, the defendant is not guilty.

 

The district court patterned the instruction on CRIMJIG 29.28.  See 10A Minnesota Practice, CRIMJIG 29.28 (1999).  The jury found Van Mill guilty, and this appeal follows.

D E C I S I O N

I.

            Van Mill contends that the jury instruction given by the district court on the charge of refusing to submit to chemical testing was erroneous because it failed to include "all [of] the elements of the offense" and that he is thereby entitled to a new trial.  Van Mill argues that the district court erred by not instructing the jury that it had to find that Van Mill was lawfully arrested for DWI and that Van Mill was read the implied-consent advisory.

A jury instruction must be viewed in its entirety to determine whether it fairly and adequately explains the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  "An instruction is in error if it materially misstates the law.  Furthermore, it is well settled that the court's instructions must define the crime charged."  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001) (citations omitted).  The refusal to give a requested instruction will not be reversed absent an abuse of discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).

Van Mill claims that the district court should have instructed the jury to determine whether Van Mill had been lawfully arrested for DWI.  We agree.  Under the criminal-refusal statute, "[i]t is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169 A. 51."  Minn. Stat. § 169 A. 20, subd. 2 (Supp. 2003).  Under section 169 A. 51, which is the implied-consent statute, when a test is requested, a person suspected of DWI "must be informed" that Minnesota law requires that the person take a test and that refusing to take the test is a crime.  Minn. Stat. § 169 A. 51, subd. 2 (2002).  Additionally, at the time of Van Mill's arrest, the implied-consent statute provided that a chemical test

may be required of a person when an officer has probable cause to believe the person was driving, operating, or in physical control of a motor vehicle in violation of section 169 A. 20 (driving while impaired), and one of the following conditions exist:

            (1) the person has been lawfully placed under arrest for [DWI] . . . ;

            (2) the person has been involved in a motor vehicle accident or collision . . . ;

            (3) the person has refused to take [a preliminary screening test]; or

            (4) the screening test was administered and indicated an alcohol concentration of 0.10 or more.

 

Minn. Stat. § 169 A. 51, subd. 1(b) (2002). 

            The criminal-refusal statute "incorporates to some degree the provisions of the implied consent statute into the crime of refusal."  State v. Olmscheid, 492 N.W.2d 263,  265 (Minn. App. 1992).[1]  Olmscheid concludes that the criminal-refusal statute requires, as a "procedural prerequisite," that the state has the burden of proving that "the peace officer had probable cause to believe [the defendant] was in physical control of the vehicle."  Id. "A refusal to submit to a test requested without probable cause . . . is not a refusal to submit to a chemical test."  Id. at 265-66. 

Because the implied-consent statute provides that a chemical test "may be required . . . when an officer has probable cause . . . and one of the following conditions exist," a finding of at least one of the four enumerated conditions in the implied-consent statute also is a procedural prerequisite to the crime of refusing to submit to chemical testing.  See Minn. Stat. § 169 A. 51, subd. 1.  Here, the only condition that applies is whether Van Mill was lawfully arrested for DWI, and such a lawful arrest is a prerequisite to requesting a chemical test under Minn. Stat. § 169 A. 51.  The district court abused its discretion by denying Van Mill's request to instruct the jury that it had to find that he was lawfully arrested for DWI in order for the jury to find that Van Mill criminally refused testing.

The state argues that whether Van Mill was lawfully placed under arrest for DWI is a "legal conclusion which would be inappropriate to submit to the jury for consideration."  An officer can lawfully arrest a person for DWI when the officer has probable cause to believe that the person was driving, operating, or in control of a vehicle while intoxicated.  Minn. Stat. § 169 A. 20, subd. 1; State v. Olson, 342 N.W.2d 638, 640 (Minn. App. 1984).  Whether probable cause exists is a legal conclusion.  State v. Horner, 617 N.W.2d 789, 795 (Minn. 2000).  So, by asking a jury to determine the probable-cause issue, CRIMJIG 29.28 already asks a jury to make a legal determination, as a result of the relationship between the implied-consent statute and the crime of refusal to submit to chemical testing.  Such a determination is mandated by caselaw as a prerequisite to finding a defendant guilty of criminal refusal, and we will not revisit the issue here.  See Olmscheid, 492 N.W.2d at 265; see also 10A Minnesota Practice, CRIMJIG 29.28 (1999) (stating that in a criminal-refusal-to-test case, the jury should be instructed to find that "a peace officer had probable cause to believe that the defendant drove, operated, or was in physical control of a motor vehicle while under the influence of alcohol").  The instruction given by the district court required the jury to determine whether Deputy Juve had probable cause to arrest Van Mill.  The implied-consent statute, however, requires that Van Mill be "lawfully placed under arrest for [DWI]" before Deputy Juve can request chemical testing.  See Minn. Stat. § 169 A. 51, subd. 1(b).  Of course, probable cause is what makes an arrest for DWI lawful, and the jury must have found probable cause because it found Van Mill guilty.  And if Van Mill had not been arrested for DWI, there would have been no basis for asking him to submit to chemical testing.  Nevertheless, based on the requirements of the implied-consent statute, we conclude that the jury should have been instructed that it must find that Van Mill was lawfully arrested for DWI.

Van Mill also argues that the district court should have instructed the jury to determine whether he was read the implied-consent advisory.  Olmscheid concludes that the criminal-refusal statute incorporates the procedures required by the implied-consent statute "up to the point of refusal, not to issues which may thereafter arise."  492 N.W.2d at 266 (emphasis added).  "[A] driver must have been read the implied consent advisory in order to have criminally refused chemical testing."  Id. at 265.  The implied-consent statute mandates that "[a]t the time a test is requested, the person must be informed" of the information contained in the implied-consent advisory, including the fact that refusal to take a chemical test is a crime.  Minn. Stat. § 169 A. 51, subd. 2.  Because a driver must be read the implied-consent advisory in order to be found to have committed the crime of refusing to submit to chemical testing, that requirement is incorporated into the criminal-refusal statute as a procedural prerequisite.  We conclude that the district court abused its discretion by denying Van Mill's request to instruct the jury to find whether he had been read the implied-consent advisory.

The state contends that Van Mill's argument "has already been discredited by a panel of this Court," citing as support Olmscheid and State v. Mellett, 642 N.W.2d 779 (Minn. App. 2002), review denied (Minn. July 16, 2002).  But these two cases support rather than weaken Van Mill's argument.  Olmscheid concludes that "the procedures required up to the point of refusal" are incorporated into the crime of refusing to submit to chemical testing.  492 N.W.2d at 266.  Reading the implied-consent advisory to a defendant is a procedural prerequisite to proving the crime of refusing to submit to chemical testing.  Following the reasoning of Olmscheid, Mellett concludes that the district court did not need to "instruct the jury on all of the elements of the civil implied-consent statute."  642 N.W.2d at 786.  Further, as the state points out, Mellett notes that the "legislature has not acted to substantively amend the refusal statute since the Olmscheid decision."  Id.  Because Olmscheid concludes that the implied-consent procedures required up to the point of refusal are incorporated into the crime of refusing to submit to chemical testing, the fact that the legislature has not substantively amended the criminal-refusal statute since that decision suggests that all such procedural prerequisites are incorporated into the statute.  See State v. Anderson, 666 N.W.2d 696, 700 (Minn. 2003) (stating that when the legislature does not amend an appellate court's construction of a statute, the court's construction stands).

But an abuse of discretion by the district court in a jury instruction does not necessarily require a new trial.  "We evaluate the erroneous omission of a jury instruction under a harmless error analysis."  State v. Lee, 683 N.W.2d 309, 316 (Minn. 2004).  Improperly omitting an "element" of an offense from a jury instruction is subject to harmless-error analysis.  Neder v. United States, 527 U.S. 1, 10, 119 S. Ct. 1827, 1834 (1999).  When faced with an erroneous refusal to give a jury instruction, the reviewing court must "examine all relevant factors to determine whether, beyond a reasonable doubt, the error did not have a significant impact on the verdict."  State v. Shoop, 441 N.W.2d 475, 480-81 (Minn. 1989).

            We conclude that the error here is harmless.  Deputy Juve knew before he arrived at McKenzie's home that McKenzie had called the police and reported that Van Mill was intoxicated and had been driving.  Deputy Juve asked McKenzie if she had seen Van Mill driving, and McKenzie testified that she told Deputy Juve that she had.  See Minn. Stat. § 169 A. 40 (2002) (providing that a police officer can lawfully arrest a person for DWI "upon probable cause [and] without regard to whether the violation was committed in the officer's presence").  Deputy Juve observed that Van Mill was intoxicated before placing him under arrest and testified that he arrested Van Mill for DWI.  Furthermore, Deputy Juve testified that he read Van Mill the implied-consent advisory and that Van Mill refused to consent to testing.  All of this testimony was uncontested.  Because the error from the instruction is harmless, we affirm Van Mill's conviction of refusing to submit to chemical testing.

            But we hope that the Minnesota District Judges Association Committee on Criminal Jury Instruction Guides recommends appropriate revisions to CRIMJIG 29.28. 

II.

            Van Mill argues that the district court abused its discretion by permitting testimony that he was on probation.  "Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).  If the district court errs in admitting evidence, the reviewing court determines "whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict."  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, then the error is prejudicial.  Id. 

            At trial, McKenzie and Deputy Juve each made two references to the fact that Van Mill was on probation.  McKenzie first referred to Van Mill's probation as follows:

[State]: And what did you tell them when you called the police?  What did you tell the police?

[McKenzie]: I just told them that he was there and I didn't want him there, and that he was drinking that he was drunk.  I just wasn't going to put up with it anymore.  And it was a violation that he's on probation and it's

[Van Mill's attorney]: Objection.

[McKenzie]: -- a violation of his probation.

[Van Mill's attorney]: It's not responsive to the question, I believe, and

The Court: The question was, "What did you tell the police?"

[State]: Yes.

The Court: The objection is overruled.  You may answer.

 

When later asked what she reported to law enforcement, McKenzie testified, "I called [the police] because I wanted to get [Van Mill] out of my house, but that he's driving and he's on probation and he's not supposed to be drinking . . . and he doesn't have a license."  Van Mill did not object.  Both of Deputy Juve's references to probation were in response to questions regarding what information he received regarding McKenzie's report to the police dispatcher.

            Van Mill argues that the district court erred by permitting testimony of his past acts in the form of testimony regarding probation because the evidence was "irrelevant and prejudicial."  He contends that his objection to McKenzie's first reference to probation was sufficient.  But he objected only on the ground that McKenzie's answer was not responsive to the question.  He did not object on grounds of relevance, prejudice, or evidence of prior bad acts.  See Minn. R. Evid. 402-404.  "Error may not be predicated upon a ruling which admits . . . evidence unless a substantial right of the party is affected, and . . . a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context . . . ."  Minn. R. Evid. 103(a); accord State v. Tovar, 605 N.W.2d 717, 726 (Minn. 2000) (stating that "[a]bsent clear and specific objections raised before the district court, we will generally not consider issues of the admissibility of evidence raised for the first time on appeal").  

"Generally, if a defendant fails to object at trial to a particular error, [he] is deemed to have forfeited his right to have the alleged error reviewed on appeal."  State v. Quick, 659 N.W.2d 701, 717 (Minn. 2003).  Notwithstanding Van Mill's failure to object on the grounds of relevance, prejudice, or evidence of prior bad acts, this court has the discretion to consider plain error affecting substantial rights.  See id.  "The plain error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights."  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002).  If this test is met, an appellate court "may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings."  Id. (quotation omitted).  A defendant's failure to object implies that the statements were not prejudicial.  State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984).

The district court's failure to exclude references to Van Mill's probation was not plain error.  The testimony referred only to "probation"; neither McKenzie nor Deputy Juve testified about why Van Mill was on probation.  The questioning did not solicit testimony regarding probation but rather asked generally what McKenzie reported to law enforcement.  Cf. State v. McNeil, 658 N.W.2d 228, 232 (Minn. App. 2003) (stating that a "reviewing court is much more likely to find prejudicial misconduct when the state intentionally elicits impermissible testimony").  Additionally, Van Mill's attorney twice referred to Van Mill's probation in closing argument.  The district court did not clearly abuse its discretion by permitting the testimony.

III.

            In his pro se brief, Van Mill claims that he was denied effective assistance of counsel at trial.  Van Mill "must affirmatively prove that his counsel's representation ‘fell below an objective standard of reasonableness' and ‘that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.'"  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  

Van Mill offers no evidence that his trial counsel's representation fell below an objective standard of reasonableness.  A review of the record shows that Van Mill's attorney was prepared and represented Van Mill with appropriate skill.

Affirmed.

[1] Olmscheid interpreted Minn. Stat. § 169.121 (1990) and Minn. Stat. § 169.123 (1990), the predecessors to the current criminal-refusal (Minn. Stat. § 169A.20) and implied-consent (Minn. Stat. § 169A.51) statutes, respectively.  The legislature recodified chapter 169 in 2000, but the substance of the provisions at issue here remains unchanged.  See 2000 Minn. Laws ch. 478, art. 1, § 31.  Compare Minn. Stat. § 169.121, subds. 1 and 1a (1990), with Minn. Stat. § 169 A. 20, subds. 1 (2002) and 2 (Supp. 2003); and Minn. Stat. § 169.123, subd. 2 (1990), with Minn. Stat. § 169 A. 51, subds. 1 and 2 (2004).