This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Affirmed in part and reversed in part
Carlton County District Court
File No. K3031669
Mike Hatch, Attorney General, Omar A. Syed, Assistant Attorney General, Suite 1800, Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Marvin Ketola, Carlton County Attorney, Room 202, Courthouse, Box 300, Carlton, MN 55718-0300 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg,
Assistant Public Defender,
Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.
Appellant John Vern Leino challenges his convictions of one count of first-degree driving while impaired, one count of refusal to test, and one count of driving without a valid license, arguing that prosecutorial misconduct affected the verdict, and the state failed to prove one element of driving without a valid license. Appellant also challenges the district court’s failure to depart downward in the DWI sentence. Because any prosecutorial misconduct was not so serious as to require a new trial, we affirm appellant’s conviction of driving while impaired and refusal to test, and we affirm the guideline sentence imposed for DWI. Because the state failed to prove an element of driving after cancellation, we reverse appellant’s conviction of, and concurrent sentence imposed for, driving without a valid license.
Prior to trial, appellant stipulated that he had three prior DWI convictions, that the officer had sufficient basis to request testing, and that he refused to take a test. The parties also stipulated that the jury would not be informed that appellant’s license had been cancelled as inimical to public safety.
At trial, when the prosecutor asked a law-enforcement officer if he had checked to see if appellant’s license had been revoked, the officer replied that he ran the information through dispatch. The prosecutor asked, “[A]nd it came back as revoked?” The officer replied, “[C]ame back cancelled, inimical to public safety.” Appellant’s counsel objected, and the district court stated to the jury: “We show it as revoked.” Appellant did not request any additional corrective instruction or action.
After closing arguments, outside the jury’s presence, appellant’s counsel noted that normally the state would have to produce a certified copy of appellant’s driving record to show that his license was revoked on the relevant day, but he reiterated that the defense stipulated to the revocation because the driving record showed that the license was cancelled as inimical to public safety and they did not want the jury to see that. Appellant agreed with that decision on the record. The district court instructed the jurors that they did not have to decide the third element of the offense of driving without a valid license (that appellant’s license was cancelled at the time he was operating a motor vehicle), because the parties stipulated that appellant’s license was revoked at the relevant time. The jury found appellant guilty of all three charges.
At sentencing, appellant argued that despite a criminal-history score of 11, he had never had a felony DWI before and that all of his felony offenses involved property crimes with convictions in 1995 or earlier. Appellant argued he was a model prisoner and a good candidate for probation because he had learned the trade of cabinet-making and was in the process of establishing a business. The district court declined to depart downward from the sentencing guidelines and imposed the presumptive sentence of 72 months for felony DWI and a concurrent one-year sentence for driving after cancellation. This appeal followed.
I. Prosecutorial misconduct
Appellant first asserts that he is entitled to a new trial because of prosecutorial misconduct in eliciting the information that his license was cancelled as inimical to public safety despite the agreement that this information would not go to the jury.
When assessing prosecutorial
misconduct, a reviewing court first examines the challenged conduct to
determine whether the prosecutor erred, and if so, whether the conduct was so
prejudicial in light of the entire record that the defendant was denied a fair
trial. State v. Ford, 539 N.W.2d 214, 228 (
Appellant argues that the state
cannot prove beyond a reasonable doubt that the verdict was unaffected by the
officer’s statement that his license was cancelled as inimical to public
safety. And appellant argues that even
in the absence of prejudice, this court should reverse in the interests of
justice. The state argues that because
the prosecutor did not intentionally elicit the prohibited response, there was
no misconduct, and even if it was misconduct, it was the less-serious type and
not prejudicial. The supreme court has
stated that “[i]f prosecutors and police officers persist in trying to inject
into a trial indirectly matters which they know they cannot introduce directly
the only solution is to let them try the case over.” State
v. Gegen, 275
II. Notice of cancellation
Appellant was charged with driving without a valid driver’s license. The statute under which he was charged makes it a gross misdemeanor for a person to drive after driving privileges have been cancelled if“the person has been given notice of or reasonably should know of the cancellation . . . .” Minn. Stat. § 171.24, subd. 5(2) (2002)(emphasis added). Appellant argues that, although he stipulated that his license was cancelled as inimical to public safety at the time of the incident, he did not stipulate that he had received notice of the cancellation, and the state’s failure to prove such notice is fatal to his conviction of driving without a valid license.
One of the essential elements the state has to prove to get a conviction for driving after revocation is that the driver had either been given notice of revocation or reasonably should have known about it.
State v. Larson, 502 N.W.2d 60, 63
(Minn. App. 1993) (footnote omitted), reversed
on other grounds,503 N.W.2d 779
In this case, the district court
properly instructed the jury on the four elements of driving after cancellation. The third element is that the defendant’s
license was cancelled at the time he was driving, and the fourth element is
that the defendant had been given notice of the cancellation. See 10A
Appellant argues that the district
court erred by not granting his request for a downward dispositional departure
from sentencing guidelines. The decision
whether to depart from sentencing guidelines rests within the district court’s
discretion and will not be reversed absent an abuse of discretion. State
v. Givens, 544 N.W.2d 774, 776 (
Affirmed in part and reversed in part.