This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Scott W. Nace,




Filed April 5, 2005

Klaphake, Judge


St. Louis County District Court

File No. T9-02-611078



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


Bryan F. Brown, City Attorney, 410 City Hall, Duluth, MN  55802 (for respondent)


Scott W. Nace, 1328 East Second Street, Apartment 3, Duluth, MN  55805 (pro se appellant)


            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction on two counts of misdemeanor driving while impaired.  Because appellant’s brief consists of legal conclusions without accompanying support, we affirm.



            Nace states that the district court acted “under a Cowardly and unethical Practice against [him by] forcing the trial to take place, without Witnesses or Phone records being available for [his] Defense as to his whereabouts, and amount of alcohol [he] consumed.”  Nace appears to argue that the district court exhibited bias against him in conducting the trial, either by failing to grant a continuance or by excluding certain evidence.

            Prior to trial, the court discussed with Nace the possibility of his proceeding pro se and his desire to introduce additional evidence.  The district court stated “[w]e’re going ahead today, and you’ve had every opportunity to be prepared for today.”  Nace acquiesced to representation by the public defender.  Nace did not make any posttrial motions alleging judicial bias, although he had successfully moved the district court to remove the first judge assigned to his case and obtained at least one continuance prior to the trial date. 

            Nace does not address this issue in his brief after identifying it as a legal issue.  “An assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.”  Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987) (quotation omitted); see also In re Olson, 648 N.W.2d 226, 228 (Minn. 2002) (stating that issues not addressed in the argument portion of appellant's brief are deemed waived).  Because Nace’s brief does not address the indistinct legal issue that it presented, we conclude that Nace has waived this argument.


            Nace argues that the public defender showed “Deliberate Indifferences Toward [him] by not [subpoenaing] phone records that establish where [he] was the evening of August 8th.”  To prevail on an ineffective-assistance-of-counsel claim, a defendant “must affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694 104 S. Ct. 2052, 2068 (1984)).

            Again, this issue is not addressed in Nace’s brief after it was presented as a legal issue.  Included in his appendix is a copy of posttrial correspondence with his public defender denying his request for additional copies of a letter he wrote to Qwest and Qwest’s reply.  The public defender suggested that Nace obtain additional copies from the court file, and his handwritten comment on the letter states that the “court house doesn’t have file.”  The next page of Nace’s appendix is a copy of a letter from the St. Louis County court administrator stating that the file from another case involving Nace cannot be found.

            The only relevant content in Nace’s brief regarding this issue is the claim in his statement of the case that he made four or five phone calls from a particular bar on the evening of his arrest.  He does not attempt to explain the public defender’s failure to seek a subpoena or how that evidence would have resulted in a different outcome at trial, or even how the phone records are relevant.  One could infer from the brief that Nace seeks to contradict the arresting officer’s testimony that Nace said he was at one bar by using the phone records to prove that he was actually at a different establishment.  The district court ruled from the bench that the phone records were irrelevant, because the issue of which bar Nace had been at that night did not matter.  The court described the publich defender as “a zealous advocate” and stated if she did not do something Nace wanted her to do, that was up to her judgment.

            Because Nace makes no effort to explain this legal claim in the context of the case, we conclude that he has waived this argument.  Olson, 648 N.W.2d at 228. 


            Nace appears to claim that the jury erred by failing to find that the officer who administered the Intoxilyzer test tampered with the equipment in order to falsify Nace’s intoxication level.  “The trial court’s factual findings are subject to a clearly erroneous standard of review[.]”  State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996). 

            The results of an approved breath-testing instrument, such as the Intoxilyzer, “when performed by a person who has been fully trained” in its use, can be admitted in evidence “without antecedent expert testimony” that it is “a trustworthy and reliable measure of the alcohol in the breath.”  Minn. Stat. § 634.16 (2002).  The jury heard lengthy testimony from the officer who administered the test regarding the procedures he followed, the results he obtained, and his claim that “[t]he machine takes its sample and analyzes it without any external influence from us.”  Nace testified that the officer obtained false results by “tampering” with the Intoxilyzer.  Nace also alleged that a videotape of the testing would reveal the tampering, and the jury viewed the videotape. 

            Nace states several times in his appellate brief that officers are able to tamper with or “recalibrate” an Intoxilyzer machine.  But he makes no effort to convince us that this claim should lead to our conclusion on review that the jury clearly erred in finding that Nace was intoxicated on the night of his arrest.  He simply restates the facts as he did at trial, absent any legal argument.  Therefore, we uphold the jury’s factual findings.