This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-99-1258

 

State of Minnesota,

Respondent,

 

vs.

 

Thomas George Condon,

Appellant.

 

Filed May 16, 2000

Affirmed

Kalitowski, Judge

 

Dakota County District Court

File No. K8982820

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN55103; and

 

James C. Backstrom, Dakota County Attorney, Charles A. Diemer, Chief Deputy County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN55033 (for respondent)

 

Mark A. Paige, 295 Marie Avenue East, Suite 200, West St. Paul, MN55118 (for appellant)

 

 

††††††††††† Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Willis, Judge.


U N P U B L I S H E D†† O P I N I O N

KALITOWSKI, Judge

††††††††††† Appellant Thomas George Condon challenges his conviction of criminal vehicular homicide in violation of Minn. Stat. ß 609.21, subd. 1(2) (1998).Appellant claims (1) the district court erred by refusing to suppress evidence of his nonconsensual blood alcohol test; (2) the district court erred by refusing to admit evidence of the victimís blood alcohol concentration; (3) insufficient evidence exists to support the conviction; (4) two subdivisions of the criminal vehicular homicide statute violate due process by creating a mandatory presumption of guilt; and (5) the district court abused its discretion by imposing an upward durational sentencing departure.We affirm.

D E C I S I O N

I.

In reviewing a pretrial order on a motion for suppression of evidence, ďwe may independently review the facts and determine, as a matter of law, whether the district court erred in suppressingóor not suppressingóthe evidence.ĒState v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citation omitted).

Condon argues that the district court erred by refusing to suppress the results of his nonconsensual blood test because the test was obtained in violation of his right to counsel, contrary to Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 833 (Minn. 1991).He also contends that under State v. Scott, 473 N.W.2d 375, 376 (Minn. App. 1991), once the officer invoked the implied consent advisory procedure, the results of a nonconsensual test could not be used even in the prosecution of a charge for criminal vehicular operation.We rejected identical arguments in Condonís appeal from his conviction for a 1991 criminal vehicular homicide.See State v. Condon, 497 N.W.2d 272, 275 (Minn. App. 1993).Condon offers no new rationale that would change our decision in Condon I.

††††††††††† Moreover, since Condonís 1991 criminal vehicular homicide, the legislature has codified the long-standing exception for nonconsensual blood testing where probable cause exists to suspect that an individual has violated the criminal vehicular operation statute.Minn. Stat. ß 169.123, subd. 4 (1998) (exempting criminal vehicular operation from implied consent requirements).The statute now expressly provides that under such circumstances, no advisory is necessary and ďa test may be required and obtained despite the personís refusal.ĒId.As we noted in Condon I, ď[I]f a driver has no choice in the matter, there is no need, and hence no right, to contact counsel.ĒCondon I, 497 N.W.2d at 275.

††††††††††† Condon also contends that the court should have suppressed his test result because the police did not affirmatively act to vindicate his right to counsel after the nonconsensual testing occurred, thereby denying his opportunity to develop exculpatory evidence.We disagree.Neither the statute nor the relevant caselaw contemplate a post-test right to counsel for purposes of developing exculpatory evidence to combat the results of a valid nonconsensual blood test.Finally, Condon argues that the test was invalid because he consented to a breath test and not a blood test.We disagree.The officer had the authority to require a blood test, and Condonís consent or lack thereof is immaterial.

II.

††††††††††† On appeal, a reviewing court will defer to the district courtís evidentiary rulings, which will not be overturned absent a clear abuse of discretion.State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).The district court has broad discretion to exclude evidence on the basis of relevancy.State v. Chambers, 589 N.W.2d 466, 475 (Minn. 1999).

††††††††††† Condon argues that the district court abused its discretion by excluding evidence of the victimís blood alcohol concentration or consumption of alcohol on the evening of the accident.We disagree.The contributory negligence of a victim is not a defense to criminal vehicular homicide, although the victimís negligence is relevant to a determination of ďwhether the defendant was negligent, and, if so, whether that negligence was the proximate cause of the victimís injuries.Ē State v. Munnell, 344 N.W.2d 883, 887-88 (Minn. App. 1984).But a victimís negligence is only relevant if it breaks the causal chain so as to constitute a superseding intervening cause of his own death.State v. Lund, 474 N.W.2d 169, 174 (Minn. App. 1991) (upholding exclusion of evidence that victim failed to wear a seatbelt, as it did not did not constitute an intervening superseding cause of death in case of criminal vehicular homicide).

††††††††††† The district court correctly determined that the victimís blood alcohol content was not a superseding cause because (1) it did not occur between the original cause and his death; and (2) it did not turn aside the natural sequence of events so as to produce a different result than would have otherwise followed from Condonís negligence.See 4 Minnesota Practice CIVJIG 27.20 (1999) (defining superseding cause).The record contains no evidence that the victimís blood alcohol content was a superseding cause of his death.†† He did not die from alcohol poisoning or some similar condition; rather, his death resulted from the injuries he suffered upon impact with Condonís vehicle.

††††††††††† The district courtís ruling did not prohibit Condon from arguing to the jury that the victimís negligence was a proximate cause of his death.In fact, the court specifically noted that evidence of the victimís actions were admissible to the extent that they showed he may have failed to maintain a proper lookout, crossed the road improperly, or had his vision obscured.Thus, the jury heard eyewitness testimony that before crossing the road, the victim hoisted a box of beer on his right shoulder without checking for oncoming traffic from Condonís direction.The jury also heard evidence that the victim had spent several hours in a bar that night and was observed walking unsteadily approximately one hour before the accident.We conclude the district court did not abuse its discretion in excluding evidence of the victimís blood alcohol content as irrelevant to the juryís consideration of whether the victimís negligence was the proximate cause of his death.


III.

††††††††††† In considering a claim of insufficient evidence, this court reviews the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict they did.State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).We must assume the jury believed the stateís witnesses and disbelieved any evidence to the contrary.State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

††††††††††† Condon asserts that the evidence was not sufficient to convict him because the victim caused his own death by negligently walking into a moving vehicle.In support, he cites evidence in the record that might permit that conclusion.But the appropriate inquiry for this court is whether sufficient evidence existed to support the conviction, not whether alternative evidence exists that could justify an acquittal.

††††††††††† The jury heard evidence that at the point of impact, the victim had traversed 22 feet across one lane of traffic to reach the center line and an additional 4 to 5 feet into Condonís lane of travel.Expert testimony indicated that the average walking pace of an adult male is five to seven feet per second and the average reaction time to a perceived danger is approximately 1.5 or 1.6 seconds.The stateís expert testified that the area was sufficiently well lit so that Condon should have been able to see the victim before he walked into Condonís lane.There was evidence that an oncoming driver in the other lane saw the victim far enough in advance that she did not need to take any action to avoid him.Moreover, this driver stated she never saw Condonís headlights swerve in a manner that would suggest he tried to take evasive action and there were no pre- or post-impact skid marks anywhere at the accident scene.Finally, several witnesses testified that after the accident, Condon was confused and unaware of what had occurred and the blood test confirmed Condonís blood alcohol content was above .10.

††††††††††† We conclude that the state presented sufficient evidence to permit the jury to determine that the essential elements of the crime had been proven beyond a reasonable doubt and that Condon caused the victimís death by negligently failing to maintain a proper lookout while driving under the influence.

IV.

††††††††††† Condon contends that two provisions of the statute under which he was charged, Minn. Stat. ß 609.21, subds. 1(3) and (4) (1998), are unconstitutional because they create a mandatory presumption of guilt.But we need not reach this claim because Condon was not adjudicated under either of these subdivisions.Although the jury convicted him of all four counts, the court only adjudicated and imposed sentence on Count I, criminal vehicular homicide in violation of Minn. Stat. ß 609.21, subd. 1(2) (1998).A person may not challenge the constitutionality of a statute that has not been applied to the personís disadvantage.State v. Jaworsky, 505 N.W.2d 638, 644 (Minn. App. 1993), review denied (Minn. Sept. 30, 1993).

V.

Finally, Condon argues that the district court abused its discretion in sentencing him to 120 months, an upward durational departure.We disagree.An upward departure is within the district courtís discretion only if substantial and compelling aggravating circumstances are present.State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).As a general rule, when aggravating circumstances are present, the upper limit on a durational departure is double the presumptive sentence.State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988).Severe aggravating circumstances may justify a sentence greater than double the presumptive sentence.Id.

Condon initially asserts that his sentence constitutes a more-than-double departure.We disagree.Using a criminal history score of one, the presumptive sentence for Condonís offense is 58 months, with a range of 54-62 months.Minn. Sent. Guidelines IV.Imposition of a sentence within the presumptive range does not constitute a departure.Minn. Sent. Guidelines cmt. II.C.02.Condon cites no authority for the proposition that doubling the maximum presumptive sentence constitutes a more-than-double departure.Moreover, our prior cases suggest otherwise.See State v. Eberhardt, 379 N.W.2d 242, 246 (Minn. App. 1986) (remanding for correction of sentence; noting presumptive sentence should be assigned ďanywhere within 71-80 month rangeĒ and that doubling is appropriate), review denied (Minn. Feb. 19, 1986).

††††††††††† The district court cited two reasons to justify departure:(1) Condonís present and prior felony convictions both involved injury to another; and (2) Condon exhibited callous disregard for the consequences of his chemical use for more than 20 years by continuing to operate a motor vehicle while impaired by the use of alcohol.

††††††††††† Condon asserts that the court erred by considering that he committed two crimes involving injury, given the general rule that a durational departure cannot be based on an element of the offense.See, e.g., State v. Brusven, 327 N.W.2d 591, 593 (Minn. 1982).He asserts that a durational departure cannot be based on these two offenses, since causing death is necessarily an element of criminal vehicular homicide.†† He also claims that any consideration of his 1991 homicide was improper because the conviction was included in determining his criminal history score.We disagree.

††††††††††† The sentencing guidelines specifically permit departure where the current conviction is for ďan offense in which the victim was otherwise injured and there is a prior felony conviction for * * * an offense in which the victim was otherwise injured.ĒMinn. Sent. Guidelines II.D.2.b.(3).The exception is written in broad terms and does not exclude prior convictions that are also included in a criminal history score.See, e.g., State v. Larson, 379 N.W.2d 165, 167 (Minn. App. 1985) (upholding departure based on injury inflicted during prior criminal sexual conduct, where criminal history score includes prior charge).The supreme court has previously rejected the argument that this exception in the sentencing guidelines impermissibly allows a departure based on an element of the current crime. See, e.g., State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985) (upholding sentencing departure for felony murder conviction based on past manslaughter conviction).The rationale is obvious:a repeat crime against the person poses a greater threat to society than a repeat property crime.Id.††

††††††††††† The district court also based the sentencing departure on Condonís long-term, callous disregard for the consequences of driving while intoxicated, as evidenced by his many DUI convictions.While Condonís use of alcohol at the time of the accident may not be used as a basis for departure, his disregard for the effects of his alcohol use may be considered when departing.Compare Minn. Sent. Guidelines cmt. II.D.201(rejecting departure based on intoxication at the time of offense) with State v. Wilkinson, 539 N.W.2d 249, 254 (Minn. App. 1995) (stating that chemical dependence and disregard for the effects of alcohol use may be used as a basis for departure).Prior DUI offenses may be used in departure decisions involving criminal negligence resulting in death, provided the DUIs are not included in the defendantís criminal history score.State v. Rasinski, 472 N.W.2d 645, 650 (Minn. 1991) (aggravating factors supporting durational departure in criminal vehicular operation case included defendantís lack of insurance and prior alcohol related offenses not considered in calculating criminal history score).Condonís prior DUIs had decayed for purposes of calculating Condonís criminal history score and were properly considered in departing.Condon offers no authority for the proposition that a chronic disregard for the consequences of oneís drinking similarly ďdecaysĒ and ceases to be a valid aggravating factor.

††††††††††† Affirmed.