This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Kenneth Duane Lee,
Lac Qui Parle County District Court
File No. T102430
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
John M. Tollefson, P.O. Box 269, Dawson, MN 56232 (for respondent)
Ronald R. Frauenshuh, Jr., 129 N.W. Second Street, Ortonville, MN 56278 (for appellant)
Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Huspeni, Judge.
Appellant argues that the trial court erred (1) by concluding that there was sufficient probable cause to place appellant under arrest for driving while impaired, (2) by excluding evidence of appellant’s acquittal of a separate charge, and (3) by giving no jury instruction on entrapment. Because (1) there was probable cause for arrest, (2) the trial court did not err in determining that the evidence appellant sought to introduce was not relevant, and (3) the trial court did not err in determining that appellant did not meet the burden of showing that the government had induced the commission of the offense, we affirm.
On the evening of March 29, 2002, the Ortonville police called the dispatcher requesting that someone pick up appellant Kenneth Duane Lee, and hold him for 72 hours due to an alleged violation of an order for protection (OFP). At approximately 12:55 a.m., Deputy Ken Shule drove to appellant’s residence, knocked on the door, and then telephoned the residence, but received no answer. Deputy Shule then left the premises. Appellant testified that he had been asleep, awoke to see car lights, and jumped into his truck to chase the vehicle that had been in his yard.
Deputy Shule testified that shortly after leaving appellant’s premises (having unsuccessfully attempted to contact another officer for assistance), he made a u-turn. He then noticed a vehicle, later determined to be driven by appellant, crowding the centerline so that “I had to swerve over.” Deputy Shule clocked the vehicle traveling at 84 miles per hour in a 55 mile-per-hour zone, activated his police lights and reported the stop to dispatch at 1:09 a.m. Appellant stopped, exited his truck, and began walking toward Deputy Shule. Appellant refused to comply with Deputy Shule’s instructions to remove his hands from the pocket of his sweatshirt, and made inappropriate comments as Deputy Shule attempted to place him under arrest. Deputy Shule testified that he could smell the strong odor of alcohol on appellant’s breath and that appellant’s eyes were bloodshot. Appellant returned to his vehicle and attempted to place it in gear, and refused to exit his vehicle or to give Deputy Shule his keys when asked. Deputy Shule testified that he performed no field sobriety tests because it seemed unsafe to do so given appellant’s behavior. At the sheriff’s station, appellant agreed to a blood test. The sample was taken at 3:10 a.m. and registered a .13 alcohol concentration level.
Appellant was charged with DWI pursuant to Minn. Stat. §§ 169A.20, subds. 1(1) (driving under the influence of alcohol) and 1(5) (driving with an alcohol concentration of .10 or more as measured within two hours of driving) (2000); open bottle pursuant to Minn. Stat. § 169A.35, subds. 4, 5 (2000); and obstructing arrest pursuant to Minn. Stat. § 609.50, subds. 1(2), 2(3) (2000). After trial in July 2002, the jury returned verdicts of not guilty of driving with an alcohol concentration of .10 or more within two hours of driving, and guilty of DWI, obstructing arrest, and open bottle. The trial court denied appellant’s posttrial motions for a new trial and for dismissal of the charges. This appeal followed.
“A determination of probable cause is a mixed question of fact and of law.” Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 840 (Minn. App. 2000) (citation omitted), review denied (Minn. Sept. 13, 2000). “A reviewing court must consider the totality of the circumstances when determining probable cause.” Id. (citation omitted). “Probable cause exists when all the facts and circumstances would lead a cautious person to believe that the driver was under the influence.” Id. (citation omitted). Moreover, sometimes an officer may need no more than one indicia of intoxication for probable cause to exist. Heuton v. Comm’r of Pub. Safety, 541 N.W.2d 361, 363 (Minn. App. 1995).
Appellant argues that the trial court erred in concluding that Deputy Shule had probable cause to place appellant under arrest and to require an alcohol concentration test. We disagree. Deputy Shule testified that he clocked appellant at 84 miles per hour in a 55 mile-per-hour zone and observed appellant crowding the centerline while driving so that Deputy Shule was forced to “swerve over.” Deputy Shule further testified that he could smell the strong odor of alcohol on appellant’s breath and observed that appellant’s eyes were bloodshot and watery. Throughout the stop, appellant remained agitated and argumentative. See Martin v. Comm’r of Pub. Safety, 353 N.W.2d 202, 205 (Minn. App. 1984) (concluding that the deputy had probable cause based on the odor of alcohol on appellant’s breath and the difficulty with appellant due to her “somewhat excited” state, in addition to the speeding offense and stopping on the highway). Considering the totality of the circumstances, the trial court properly concluded that Deputy Shule observed sufficient indicia of intoxication for a cautious person to believe that appellant was under the influence.
Appellant, who was acquitted of the charge of violating an OFP, the charge on which Deputy Shule was attempting to arrest him before the trial on the DWI and related charges began, next contends that the trial court improperly excluded evidence of that acquittal. The trial court ruled that the proffered evidence of acquittal was not relevant, but did offer to give a cautionary instruction that the jury should not be prejudiced against appellant because the initial reason that the police went to appellant’s home was to arrest him for violating an OFP. Appellant declined the cautionary instruction.
Appellate courts largely defer to the trial court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).
Appellant suggests that evidence that he was found not guilty of violating an order for protection explains why he was argumentative with the deputy while being placed under arrest. We see no error in the trial court’s refusal to admit this evidence. First, appellant was not denied the opportunity to explain his argumentative state; on the contrary, he was permitted during his testimony to fully explain the circumstances surrounding his arrest. Second, this evidence at most “explained” why appellant behaved as he did during arrest. Further, the record reflects that appellant was argumentative well before he knew that the possible violation of an OFP played any role in his arrest on March 28, 2002.
The fact that appellant was later found not guilty of the charge of violating the OFP was not
evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Minn. R. Evid. 40l.
Appellant also argues that the fact the jury found him not guilty of the charge of driving with an alcohol concentration .10 or more proves that the entire case was close, thus making the exclusion of evidence of acquittal on the OFP charge prejudicial. We disagree, and see no inconsistency between a guilty verdict under Minn. Stat. § 169A.20, subd. 1(1) (2000), for driving “when the person is under the influence of alcohol,” and a not guilty verdict under Minn. Stat. § 169A.20, subd. 1(5) (2000), for driving “when the person’s alcohol concentration at the time, or as measured within two hours of the time, * * * is .10 or more.” Here, the jury reasonably could have determined that the alcohol concentration test was not taken within the two-hour window permitted by the statute, and acquitted on that basis. The trial court did not abuse its discretion in denying a new trial.
Appellant’s final contention is that the trial court abused its discretion in failing to give an entrapment instruction to the jury. We see no abuse of discretion.
Denying a requested jury instruction lies within the discretion of the trial court. State v. Daniels, 361 N.W.2d 819, 831 (Minn. 1985). A court does not err by refusing to give an instruction where the evidence does not support the proposed instruction and no abuse of discretion is shown. Id. Here, the trial court concluded that appellant had failed to prove by a preponderance of the evidence that the government induced him to drive while under the influence of alcohol. The trial court was correct in so concluding.
A successful entrapment defense requires (1) a showing by the accused that the government induced the crime and (2) a failure by the government to prove beyond a reasonable doubt that the accused was predisposed to commit the crime. State v. Johnson, 511 N.W.2d 753, 754 (Minn. App. 1994), review denied (Minn. Apr. 19, 1994). Initially, the defendant bears the burden of proving government inducement by a fair preponderance of the evidence. Id. at 755. The government’s involvement must go beyond mere solicitation; it requires “something in the nature of persuasion, badgering or pressure by the state.” Id. (quoting State v. Olkon, 299 N.W.2d 89, 107 (Minn. 1980)). Moreover, the defendant must show that the police actions went beyond those actions necessary to produce evidence of the defendant’s criminality. State v. Grilli, 304 Minn. 80, 89, 230 N.W.2d 445, 452 (1975). The burden then shifts to the government to show beyond a reasonable doubt that the defendant was predisposed to commit the crime. Id. at 96, 230 N.W.2d at 456.
Appellant claims that he met his burden by showing that because the deputy left appellant’s yard before making contact with him, the deputy lured him into driving while impaired. Here, however, Deputy Shule was not trying to induce criminality by knocking on appellant’s door and telephoning him. Instead, the deputy was merely trying to locate appellant by performing his law enforcement duties in a standard manner. Deputy Shule clearly had no knowledge that appellant had been drinking, did not have the goal of inducing him to drive, and took no action that would have required that he drive. On this record, the trial court did not abuse its discretion.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellant also testified that earlier that evening, he had consumed one or two alcoholic beverages at the Liquor Store, one or two more beers at home, and then took some Vicks 44m allergy medication.
 Appellant also claims that the court violated Minn. R. Crim. P. 9.02, subd. 1(3)(e), because appellant elected to submit the entrapment defense to the jury, but at the close of evidence, the court concluded that appellant failed to present sufficient evidence to meet his burden of persuasion for entrapment and, therefore, denied appellant’s request to instruct the jury on entrapment. Minn. R. Crim. P. 9.02, subd. 1(3)(e), states that the defendant must “elect whether to have the defense submitted to the court or to the jury,” and must also set forth a “statement of the facts forming the basis of the defense.” The defendant is required to prove by a fair preponderance of evidence inducement by the government. See Johnson, 511 N.W.2d at 755 (holding that the defendant bears the burden of proving government inducement by a fair preponderance of the evidence); Minn. R. Crim. P. 9.02, subd. 1(3)(e), comm. (commenting that procedures outlined in the rule are based on Grilli, 304 Minn. 80, 230 N.W.2d 445, requiring defendant to meet his burden of proof). Here, the trial court followed the appropriate procedure under Minn. R. Crim. P. 9.02, subd. 1(3)(e). The court properly concluded as a matter of law that appellant failed to present sufficient evidence to meet his burden of persuasion on inducement, or to warrant a jury instruction. The fact that the appellant elected to submit his defense to the jury did not remove appellant’s burden to sufficiently support the defense.