This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Jeff Lawrence Krautkremer,
Blue Earth County District Court
File No. K6-03-188
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Ross Arneson, Blue Earth County Attorney, Patrick R. McDermott, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56002 (for respondent)
Considered and decided by Kalitowski, Presiding Judge; Toussaint, Chief Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
In this appeal from his conviction of and sentence for felony driving while impaired, appellant argues that a jury instruction on refusal to test was improper, his conviction was not supported by sufficient evidence, and his sentence was an improper dispositional departure from the guidelines. Because the trial court did not err in its instruction or sentencing and the evidence was sufficient to support the conviction, we affirm.
D E C I S I O N
The refusal to give a requested jury instruction lies within the discretion of the trial court, and no error results if no abuse of discretion is shown. State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989). To establish error, the appellant must show the “instruction contained a material misstatement of law when read in the context of the instructions as a whole.” State v. Turnipseed, 297 N.W.2d 308, 312 (Minn. 1980).
Appellant challenges the trial court’s decision to deviate from a part of CRIMJIG 29.28, the jury instruction for refusal to submit to testing. 10 Minnesota Practice, CRIMJIG 29.28 (1999). The third element listed in this jury instruction is that “the defendant refused to submit to the test.” Id. Here, the trial court added the following language to element three: “An initial refusal to submit to testing cannot be considered cured by subsequent agreement to be tested.” A string of Minnesota Court of Appeals decisions have held that an initial refusal to test is not retracted by a later affirmative response to testing. See Parsons v. Comm’r of Pub. Safety, 488 N.W.2d 500, 502-03 (Minn. App. 1992); Mossak v. Comm’r of Pub. Safety, 435 N.W.2d 578, 579-80 (Minn. App. 1989), review denied (Minn. Apr. 10, 1989); Anderson v. Comm’r of Pub. Safety, 379 N.W.2d 678, 681 (Minn. App. 1986). These cases support the jury instruction given in this case; the instruction given was not a misstatement of the law.
The facts adduced at trial also supported the instruction given by the court. The jury heard the tape of the implied-consent advisory that instructed appellant “if you are unable to contact an attorney you must make the decision [on testing] on your own. You must make your decision within a reasonable period of time . . .. If the test is unreasonably delayed or if you refuse to make a decision, you will be considered to have refused the test.” When appellant stated that he understood the advisory, the officer made myriad attempts to offer him a test, and appellant repeatedly answered that he had already taken “it” twice. The jury also heard that appellant did not change his mind regarding the test for at least seven minutes after the advisory.
Appellant also argues “it was clear error to instruct the jury that they must find that there was a test refusal.” The jury was instructed that it must determine whether the state had proved beyond a reasonable doubt that the appellant refused to submit to a chemical test. Appellant misstates the transcript by alleging that the trial court instructed the jury to find refusal.
This court reviews insufficiency-of-the-evidence claims by viewing the evidence in the light most favorable to the verdict and assumes that the jury believed the state’s witnesses and disbelieved everything that contradicted their testimony. State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980). “[A]ll inconsistencies in the evidence are also resolved in favor of the state.” State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990).
Appellant argues that “even without a test, there was not enough evidence to prove beyond a reasonable doubt that appellant was under the influence of alcohol while he was driving the car.” Despite his review of the evidence and testimony, including two officers’ observations of erratic and illegal driving over several blocks, physical manifestations of intoxication (watery blood-shot eyes, alcohol on breath, unsteadiness, slurred speech), and failed field sobriety tests, appellant argues that these facts are just “an impressive facade with nothing of significance behind it.” For the officers’ testimony to be a mere facade, however, the officers would have to be disbelieved. We assume the jury believed the state’s witnesses; appellant’s insufficiency argument therefore fails.
The standard for reviewing a departure from a presumptive sentence is abuse of discretion. State v. McIntosh, 641 N.W.2d 3, 8 (Minn. 2002). “If the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.” Id. Courts may depart from the guidelines only when substantial and compelling circumstances are present. Minn. Sent. Guidelines II.D. If departure is taken, the trial court must provide written reasons “which specify the substantial and compelling nature of the circumstances, and which demonstrate why the sentence selected in the departure is more appropriate, reasonable or equitable than the presumptive sentence.” Id.
Here, the trial court departed from the presumptive sentence of a stayed 48-month sentence by executing it. In support of its upward dispositional departure, the sentencing court, which also presided at the omnibus hearing and trial, found that appellant had been uncooperative throughout the process. As the probation agent found in the presentence investigation report (PSI), in the context of the crimes committed by appellant, lack of cooperation translates into a continued threat to public safety due to lack of treatment. The agent was present at the sentencing hearing and “stood by” her recommendation that appellant’s sentence should be executed. The PSI stated that appellant was “uncooperative,” refused an interview with the probation agent, and “had no interest in what [the] agent had to say, as he made it very clear he will not cooperate.” The agent concluded that appellant would not cooperate, especially if probation were ordered.
Cooperation, attitude in court, and remorse are factors relevant to amenability to probation. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Whether a defendant constitutes a threat to public safety is also a factor that has been used to determine the appropriateness of a dispositional departure. See State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983) (supporting downward dispositional departure finding, among other reasons, that defendant was not threat to public safety). A defendant’s amenability to treatment is also a relevant factor in determining whether a dispositional departure is warranted. State v. Herrmann, 479 N.W.2d 724, 728 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). In addition, a defendant’s sincerity in seeking treatment has been considered in departure determinations. See State v. Champion, 413 N.W.2d 161, 164 (Minn. App. 1987) (denying defendant’s motion for downward departure in part because court doubted defendant’s sincerity in seeking treatment).
Appellant argued at the sentencing hearing that he had had a “change of heart” with regard to compliance with probation and treatment. He asked that he get 48 months, stayed on condition that he complete a 28-day treatment program. He admitted that he did not talk to the agent, but thought that he had been cooperative throughout the proceedings.
Appellant also argued that the agent’s recommendation was based on his prior record. While the agent stated in the PSI that she was “[t]aking into consideration his extremely noncompliant attitude and his prior record,” this alone does not establish that the court based its sentencing on his prior record.
At the sentencing hearing, the court expressly stated that it had not observed any cooperation by appellant. The court also expressly concurred with the agent’s statement of appellant’s behavior and her recommendation. Therefore, there was no abuse of discretion.
In appellant’s amended pro se supplemental brief, he contends that the 21-page memorandum included in his appellate brief was never acknowledged by the trial court and the issues therein were never ruled on. The brief was submitted after the omnibus hearing on February 7, 2003. At the omnibus hearing, appellant personally argued that the evidence was incorrect and adamantly denied having an offense in 1993.
The trial court’s March 26 order, following the omnibus hearing, is part of the record on appeal. The order states that the court considered the memoranda of counsel and held a hearing on appellant’s “motion challenging the use of Defendant’s prior license revocations to enhance his current DWI charge to a felony. In addition the Defendant raised the issue of whether the enhancement from a gross misdemeanor to a felony violates the Defendant’s due process rights.” The court’s memorandum set out the basis for its order denying the motions. Therefore, appellant’s argument that his memorandum was not considered and that he never got a ruling on the issues raised in the memorandum is unfounded.