This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





James Kuehn,



Filed March 16, 2005


Willis, Judge


Washington County District Court

File No. T9-03-20259


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


Cameron S. McLelland, Jerome P. Filla, 50 East Fifth Street, Suite 300, St. Paul, MN  55101 (for respondent)


David E. Albright, 7814 131st Street West, Apple Valley, MN  55124 (for appellant)


            Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges his conviction for passing another vehicle on the right.  He argues that the district court abused its discretion by excluding impeachment evidence showing that the officer who wrote the citation was biased against appellant’s employer, whose truck appellant was driving at the time of the incident.  Appellant also argues that the district court misconstrued the statute to prohibit crossing the white line at the right edge of his lane to pass on the right and convicted appellant of an offense with which he was not charged.  Because the district court did not abuse its discretion by excluding extrinsic evidence offered to impeach witness credibility and did not err in its construction of the applicable statute, we affirm.


On July 24, 2003, appellant James Kuehn was driving a truck owned by his employer, Midwest Fence, when he was stopped in Lake Elmo by Minnesota State Trooper Glen Knippenberg and cited with three offenses: (1) passing on the right, in violation of Minn. Stat. § 169.18, subd. 4 (2002); (2) following a vehicle too closely, in violation of Minn. Stat. § 169.18, subd. 8 (2002); and (3) failure to produce proof of insurance, in violation of Minn. Stat. § 169.791 (2002).  The state subsequently dismissed the proof-of-insurance charge, and Kuehn requested a trial on the other two counts.

            The evidence at trial included Trooper Knippenberg’s and Kuehn’s contrasting accounts of the circumstances preceding the stop.  Trooper Knippenberg stated that he was southbound on Manning Avenue, a two-lane highway with one lane of traffic in each direction, when he saw Kuehn’s truck veer completely onto the right shoulder and into a right-turn lane to pass a vehicle that was making a left turn.  Trooper Knippenberg immediately stopped Kuehn’s truck.  He testified that he decided to issue a citation for following too closely after Kuehn stated that he was forced to pass on the right to avoid a collision because he “was following so close.”

            Kuehn’s description of his driving maneuver differed from Trooper Knippenberg’s description.  When his attorney asked if he drove “on anything that could be charitably described as the shoulder,” Kuehn admitted that he crossed the white line at the right edge of his lane by “[a]bout 18 inches.”  He also denied making any statement about following too closely and stated that an avoidance maneuver was necessary because the driver in front of him applied the brakes and turn signal “basically at the same time.”  In addition, Kuehn testified that Trooper Knippenberg had begun to follow the truck, which displayed a Midwest Fence logo, before the incident because the trooper had a bias against the company.

            Kuehn based his bias theory on a lawsuit that Trooper Knippenberg had brought in conciliation court against Midwest Fence.  The suit was pending at the time of the traffic stop and alleged that a fence that the company installed on Trooper Knippenberg’s property had failed to restrain the trooper’s dog, which escaped from the yard and was later found dead.  Kuehn brought several witnesses and documents to the hearing for the purpose of impeaching Trooper Knippenberg’s testimony by providing evidence of the details and the merits of the lawsuit, going to issues such as whether the lawsuit was frivolous and whether Trooper Knippenberg had claimed damages in excess of his actual loss.  The district court sustained the state’s relevance objections to the documents and the testimony of the witnesses and to many of the questions asked by Kuehn’s attorney of Trooper Knippenberg regarding the lawsuit.  But Kuehn’s attorney was allowed to establish that Trooper Knippenberg had sued Midwest Fence and the nature of the lawsuit, and Kuehn testified that Trooper Knippenberg told him during the traffic stop that “he could write out tickets to actually anyone he wanted until his fingers got numb, to Midwest Fence or anyone.”       

            The district court found Kuehn guilty of passing on the right, stating that “the defendant has acknowledged that . . . his right tire did cross the white line.”   But the court gave Kuehn “the benefit of the doubt” with regard to the charge of following too closely and acquitted him on that count.  The district court imposed a $50 fine and subsequently denied Kuehn’s motion to vacate the conviction and enter a judgment of acquittal or order a new trial.  Kuehn appeals from the original judgment and the denial of his posttrial motion.



            Kuehn claims that the district court erred by excluding extrinsic evidence that would test Knippenberg’s credibility.  We will not reverse a district court’s evidentiary rulings on appeal absent an abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  The appellant has the burden of establishing that the district court abused its discretion and that its judgment prejudiced the outcome of the case.  Id. 

The Minnesota Rules of Evidence provide that extrinsic evidence of bias or prejudice against a party is admissible for the purpose of attacking witness credibility.  Minn. R. Evid. 616.  But “[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’[s] credibility . . . may not be proved by extrinsic evidence.”  Minn. R. Evid. 608(b).  Such conduct may be inquired into on cross-examination, in the court’s discretion, “if probative of truthfulness or untruthfulness.”  Id.; see also State v. Clark, 296 N.W.2d 359, 367 (Minn. 1980) (stating that judicial discretion governs whether probative value is outweighed by the risk of undue consumption of time, surprise, or prejudice). 

Kuehn contends that the district court’s limitation of his cross-examination and exclusion of extrinsic evidence regarding Trooper Knippenberg’s bias is of constitutional dimension, citing State v. Larson, 389 N.W.2d 872, 874 (Minn. 1986) (stating that “a defendant’s right to cross-examine an adverse witness is of constitutional dimension”).  On the ground of relevance, the district court limited Kuehn’s cross-examination of Trooper Knippenberg and excluded documents and testimony regarding details of his  lawsuit.  But Kuehn was able to ask Trooper Knippenberg a variety of questions that established the fact of and the nature of the lawsuit. 

Kuehn maintains that Larson and rule 616 “demand” that extrinsic evidence of bias be admitted.  But the evidence that the court excluded—documents and testimony relating to issues such as whether Trooper Knippenberg’s case was frivolous or whether he overstated his damages—may have been probative of the trooper’s “character for truthfulness”; it was not probative of prejudice or bias.  See Minn. R. Evid. 608(b) (providing that incidents of conduct probative of truthfulness may be inquired into on cross-examination but not proved by extrinsic evidence). 

The mere existence of the lawsuit was probative of bias.  Kuehn’s attorney was able to establish the existence of and the nature of the suit, and the state stipulated that the suit was filed before the traffic stop. Therefore, Kuehn was able to present his theory of bias to the court, and we conclude that the district court did not abuse its discretion by excluding the extrinsic evidence that Kuehn proposed to use for impeachment. 

            But even if we were to conclude that the exclusion of the extrinsic evidence was an abuse of discretion, the district court based its finding that Kuehn had illegally passed on the right on Kuehn’s admission that he crossed the white line at the right edge of his lane and drove onto the shoulder during his passing maneuver.  Therefore, any error in excluding such evidence was harmless.  See Larson, 389 N.W.2d at 875 (stating that error is not reversible if found harmless beyond a reasonable doubt).  Kuehn’s admission alone supports his conviction.


            Kuehn argues that the district court misconstrued the statute under which Kuehn was convicted by finding a violation based on Kuehn’s admission that he crossed the white line at the right edge of the lane in which he was driving.  Whether a statute has been properly construed is a question of law, which we review de novo.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).  The statute in question provides:  

The driver of a vehicle may overtake and pass upon the right of another vehicle only upon the following conditions:

(1) when the vehicle overtaken is making or about to make a left turn;

(2) upon a street or highway with unobstructed pavement not occupied by parked vehicles of sufficient width for two or more lines of moving vehicles in each direction;

(3) upon a one-way street, or upon any roadway on which traffic is restricted to one direction of movement, where the roadway is free from obstructions and of sufficient width for two or more lines of moving vehicles;

(4) the driver of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety. In no event shall such movement be made by driving off the pavement or main-traveled portion of the roadway.


Minn. Stat. § 169.18, subd. 4 (2002) (emphasis added). 

            Kuehn does not contest the fact that Manning Avenue is a two-lane highway with one lane of traffic in each direction.  Nor does he deny that he veered to the right to pass a vehicle that was making a left turn, causing his right front tire to cross the white line onto the shoulder.  Rather, he argues that “an 18 inch deviation, by one tire alone, will not support a conviction” under the statute.  He also asserts that the district court, in essence, convicted him of a lane violation under Minn. Stat. § 169.18, subd. 7 (2002), without giving him opportunity to defend against the “amendment to the charge.”

            Kuehn argues that the statute permits passing on the right if a driver does so safely and does not leave the “main-traveled portion of the roadway” but that it does not impose liability “for merely crossing over a lane line without more.”  Thus, his argument requires that the statute be read to include the shoulder of a road as part of “the main-traveled portion of the roadway.”  Without providing legal support for this interpretation other than to refer to cases that reject statutes for being unconstitutionally vague, Kuehn argues that a contrary interpretation “defies common understanding.”  But we note that Minnesota law defines “roadway” as “that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the sidewalk or shoulder.”  Minn. Stat. § 169.01, subd. 31 (2002) (emphasis added).  A “shoulder” is “that part of a highway which is contiguous to the regularly traveled portion.”  Minn. Stat. § 169.01, subd. 73 (2002) (emphasis added).  We are not convinced that the “common understanding” asserted by Kuehn is consistent with the definitions provided by the legislature.  And this court has recently held that driving on the shoulder of a roadway to pass a vehicle on the right is a violation of Minn. Stat. § 169.18, subd. 4(4).  Duncan v. Comm’r of Pub. Safety,683 N.W.2d 852, 853 (Minn. App. 2004).  Therefore, the district court did not err by finding that Kuehn violated Minn. Stat. § 169.18, subd. 4(4), when he passed on the right.

            With regard to Kuehn’s claim that the district court amended the charge to a “lane violation” without providing Kuehn an opportunity to introduce evidence or argue in his defense, we note that the district court specifically ruled from the bench that it is illegal in Minnesota to cross a solid line and pass on the shoulder, and in its order denying Kuehn’s motion to vacate, the district court stated that Kuehn “had violated the traffic laws with respect to improper passing on the right, Minn. Stat. § 169.18, subd. 4, by driving onto the shoulder.”  The Washington County court minutes list Kuehn’s offense as “pass on shoulder,” under section 169.18, subdivision 4.  We find that the record does not support Kuehn’s argument that he was convicted of anything other than passing on the right.