This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
State of Minnesota,
Darwin Dale Ziegelmann,
Filed March 27, 2001
Polk County District Court
File No. K5-99-1121
Mike Hatch, Minnesota Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, #500, St. Paul, Minnesota 55103
Wayne H. Swanson, Polk County Attorney, Crookston Professional Center, 223 E. 7th Street, Suite 101, Crookston, Minnesota 56716 (for respondent)
John A. Winters, 107 West Second Street, Crookston, Minnesota 56716 (for appellant)
Considered and decided by Toussaint, Presiding Chief Judge, Hanson, Judge, and Huspeni, Judge.[
U N P U B L I S H E D O P I N I O N
Appellant Darwin Dale Ziegelmann challenges his convictions for fleeing a peace officer in a motor vehicle. Ziegelmann argues that the trial court erred in admitting as evidence: (1) Ziegelmann's four prior DWI convictions, (2) Ziegelmann’s entire driving record, and (3) the audiotape, videotape and testimony of conversations between Ziegelmann and the deputy. In addition, Ziegelmann challenges the trial court’s decision not to sever the fleeing charge from three other traffic charges. We affirm.
On July 24, 1999, at approximately 8:25 p.m., Polk County Deputy Sheriff Dave Emanuel received a call from a dispatcher describing a car, possibly driven by a drunk driver, that was traveling west on County Road 21 between St. Hillaire and Grand Forks. The Deputy decided to intercept the car at the intersection of U.S. Highway 75 and County Road 21. He was about a half-mile from the intersection when he saw a car that fit the description given to him by the dispatcher. When the car crossed the intersection, it was traveling approximately 50 miles per hour.
The deputy turned west onto County Road 21 and pursued the car. He turned on his red emergency lights, which project an array of rotating, flashing and “wig-wag” patterns. The car did not stop. Deputy Emanuel accelerated and caught up to the car. When he was about 75 to 100 feet from the vehicle, he turned on his sirens. At this point Ziegelmann, the driver of the car, looked at his rear view mirror and accelerated his speed to 80 miles per hour. Thereafter, Ziegelmann’s speed varied between the high 70’s and mid 80’s. During the continuing pursuit, Ziegelmann looked at his rear-view mirror a couple of times.
Ziegelmann drove through the town of Sherack, which has a 40 mile-per-hour speed limit, at 80 miles per hour. Deputy Emanuel changed the pitch of his siren several times and blew a very loud air horn. Even though Ziegelmann’s window was down, he did not stop. After an 11-mile pursuit, Ziegelmann hit the brakes, pulled over, and stopped his vehicle.
The deputy approached the car and made an audio recording of his conversation with Ziegelmann. Ziegelmann was arrested and taken into the police station, where a video tape was made. On February 8-9, 2000, Ziegelmann was tried for (1) fleeing a police officer in a motor vehicle, (2) driving with a blood alcohol level greater than .20, (3) driving drunk after revocation of a license, and (4) driving after cancellation. At the conclusion of the trial, he pleaded guilty to the last three counts. The jury found him guilty of fleeing a police officer. This appeal followed.
Ziegelmann claims that the trial court erred in admitting, (1) his four prior DWI convictions, (2) Exhibit 5 (Ziegelmann’s entire driving record), (3) Exhibit 2 (the audiotape), (4) Exhibit 3 (the videotape) and (5) the deputy’s testimony of his conversation with Ziegelmann.
In Minnesota, evidence of prior crimes or bad acts is typically termed Spreigl evidence. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998) (referring to State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965)). A reviewing court will not reverse a trial court’s admission of evidence of other crimes or bad acts absent a clear abuse of discretion. State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988).
Minn. R. Evid. 404(b) states, in relevant part:
Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith. It may however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In a criminal prosecution, such evidence shall not be admitted unless the other crime, wrong, or act and the participation in it by a relevant person are proven by clear and convincing evidence.
It is error to admit Spreigl evidence unless (1) the evidence is clear and convincing that the defendant participated in the prior act; (2) the evidence of the prior-act is relevant and material to the state’s case; and (3) the probative value of the prior act evidence is not outweighed by its potential for unfair prejudice. State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000).
In determining relevance and materiality [of Spreigl evidence], the trial court should consider the issues in the case, the reasons and need for the evidence, and whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place or modus operandi. * * * Generally, the greater the similarity of the other crime to the crime charged in time, place or modus operandi, the greater the chance that the other crime is relevant. We have been flexible in applying this test on appeal, upholding admission notwithstanding a lack of closeness in time or place if the relevance of the evidence was otherwise clear.
State v. DeBaere, 356 N.W.2d 301, 305 (Minn. 1984) (internal quotation marks and citations omitted).
[W]hen balancing the probative value of Spreigl evidence against the potential for unfair prejudice, the trial court must consider how necessary the Spreigl evidence is to the state's case. Only if the other evidence is weak or inadequate, and the Spreigl evidence is needed as support for the state's burden of proof, should the trial court admit the Spreigl evidence.
Kennedy, 585 N.W.2d at 391-92 (quotation omitted).
Ziegelmann does not dispute that he participated in the Spreigl offenses, namely the four DWI convictions and the acts listed in his driving record. However, Ziegelmann argues that the four DWIs and his complete driving record were irrelevant and immaterial.
The state introduced the four DWI convictions and Ziegelmann’s entire driving record to show that Ziegelmann, who was charged with fleeing a police officer in motor vehicle, had a motive to flee—he was drunk. See Minn. R. Evid. 404(b) (evidence of prior crimes admissible to show motive); DeBaere, 356 N.W.2d at 305 (in determining relevance and materiality of Spreigl evidence the trial court should consider the issues in the case, and the reasons and need for the evidence). Specifically, the state explained that because this was Ziegelmann’s fifth DWI conviction and his driver’s record showed that his license had been revoked, he had a greater motive to flee—he would be charged with a gross misdemeanor, not just a misdemeanor. See Minn. Stat. § 169.121, subd. 3(c)(2)(1998) (stating that a person is guilty of a gross misdemeanor if the person violated subdivision 1(a) in the past five years in addition to the current charge); id., subd. 1(a) (stating that it is a crime for a person to drive when under the influence of alcohol).
However, Ziegelmann’s motive to flee could have been established without the four DWIs and his entire driving record. Only one additional violation within the past five years is necessary to support a charge for a gross misdemeanor. See id., subd. 3 (c)(2). Similarly, it was not necessary to introduce Ziegelmann’s complete driving record because he could have been found guilty of driving after revocation of a license, and driving after cancellation, by showing his most recent license revocation. See Minn. Stat. § 169.129, subd. 1(1) (1998) (stating that it is a crime to drive without a valid license); Minn. Stat. § 171.24, subd. 5 (2000) (stating that it is a crime to drive after cancellation of a license). Therefore, three of the DWIs and the other license revocations in Ziegelmann’s driving record were cumulative and unnecessary. The trial court erred in admitting them as Spreigl evidence. Minn. R. Evid. 404(b).
“However, not every erroneous admission of evidence requires reversal.” State v. Townsend, 546 N.W.2d 292, 297 (Minn. 1996). Appellate courts are hesitant to reverse erroneous evidentiary rulings by the trial court where the evidence of guilt is strong. Id. Where the evidentiary ruling was error, appellate courts will find that the error was without prejudice where the guilt of the defendant was conclusively proven. Id. Here, while Ziegelmann claims that he never saw the police pursuing his car, the arresting deputy testified that he turned on his red lights and the siren; used a horn; saw Ziegelmann look at his rear-view mirror several times, and at one point, increased his speed to 80 miles per hour after looking at his mirror; saw that Ziegelmann’s windows were open; and that Ziegelmann did not stop his vehicle until after the deputy had pursued him for 11 miles. In light of this evidence, it is clear that Ziegelmann’s guilt was conclusively proven. Accordingly, we conclude that the error was not prejudicial.
Ziegelmann claims that the trial court erred in admitting the audiotape, videotape and testimony of his conversations with the deputy. Ziegelmann does not contest that there is clear and convincing evidence that he participated in the events and conversations covered in this evidence. See State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995) (explaining that the state must establish, by clear and convincing evidence, that the defendant participated in the prior crime). Instead, he claims that this evidence was immaterial and irrelevant. See Robinson, 604 N.W.2d at 363 (establishing that the state must prove that the evidence of the prior act is relevant and material to the state’s case).
With regard to the audiotape, Ziegelmann objects to the following statements that he made to the deputy when he was pulled over and arrested: “You wouldn’t give me a break, would you?”; “* * * ride home or something * * * do me a favor”; “Give me a break?” Ziegelmann also claims that the trial court erred in admitting into evidence the videotape made by the police at the police station, which showed him being uncooperative and his extensive swearing. With regard to the testimony of the deputy, Ziegelmann objects to the officer being allowed to read from a transcript of the recorded conversation that contained swear words and criticisms of police for not protecting little girls. The trial court found this evidence to be relevant and material to the DWI charge and admitted it. We agree.
Throughout the trial Ziegelmann maintained his innocence of the DWI charges. It was not until the end of trial, after the trial court had considered and admitted this evidence, that Ziegelmann pleaded guilty to the DWI charges. Accordingly, his state of intoxication was an issue at the time the evidence was introduced and admitted. Because this evidence established his conduct during and after his arrest, it was relevant and material to demonstrating that he was intoxicated.
Ziegelmann argues that the unfair prejudice of admitting this evidence outweighs its probative value. “[T]he trial court has broad discretion in determining if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.” State v. Shamp, 422 N.W.2d 520, 526 (Minn. App. 1988), review denied (Minn. June 10, 1988). Because the trial court gave specific cautionary instructions to the jury regarding the evidence, we conclude that the trial court did not abuse its discretion in finding that the probative value of the evidence outweighed its prejudicial effect. Id.
Ziegelmann challenges the trial court’s refusal to sever the fleeing charge from the three traffic offenses. The trial court’s ruling on severing claims, even if improper, will not be reversed unless “prejudicially erroneous.” State v. Profit, 591 N.W.2d 451, 460 (Minn. 1999).
Ziegelmann argues that the offenses should have been severed because they were not motivated by a single criminal objective. See Minn. R. Crim. P. 17.03, subd. 3(1)(a) (trial court shall sever offenses if “the offenses or charges are not related”) and Profit, 591 N.W.2d at 460. However, where intent is not a factor in a crime, such as in traffic offenses, a different test is applied. State v. Johnson, 273 Minn. 394, 404-05, 141 N.W.2d 517, 525 (1966). The crimes do not need to be severed if they “occur at substantially the same time and place and arise out of a continuous and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment.” Id. at 405, 141 N.W.2d at 525.
The facts of the present case show that all charged offenses occurred at the same time and place. See State v. Kooiman, 289 Minn. 439, 442, 185 N.W.2d 534, 536 (1971) (holding that where the petitioner was charged with drunkenness, an intentional crime, and criminal negligence, an unintentional crime, and the crimes took place at the same time and place, they need not be severed).
In addition, all four crimes arose out of a continuous and uninterrupted course of conduct—Ziegelmann’s operation of his vehicle. See Johnson, 273 Minn. at 405, 141 N.W.2d at 525 (concluding that where defendant was charged with DWI and driving over a center line, the “infractions occurred during a continuous and uninterrupted operation of his automobile”). All four offenses also manifest “an indivisible state of mind”—specifically, error in judgment. Id. Ziegelmann’s error in judgment as to the DWI charges was driving his vehicle while intoxicated. His error in judgment as to fleeing the police was driving while intoxicated, and not stopping when the police motioned him to do so. Finally, he erred in judgment when he chose to drive even though his license had been revoked.
Because the four crimes occurred at substantially the same time and place, and arose out of the continuous and uninterrupted act of driving, manifesting an error of judgment, we conclude that the trial court did not err in refusing to sever the charges. See id. at 405, 141 N.W.2d at 525.
[ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.