This opinion will be unpublished and

may not be cited except as provided by

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







Randy Newcomb,






State of Minnesota,




Filed August 2, 2005

Forsberg, Judge


Redwood County District Court

File No. K2-03-372


John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)


Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Michelle Ann Dietrich, Redwood County Attorney, P.O. Box 130, Redwood Falls, MN 56283 (for respondent)


            Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N


In this appeal from an order denying his postconviction petition challenging his felony DWI conviction, appellant Randy Newcomb argues that the district court abused its discretion in admitting the trooper’s expert-opinion testimony.  Appellant also argues that the prosecutor committed prejudicial misconduct in presenting videotape with references to appellant’s criminal record and his request for counsel.  Because the district court did not abuse its discretion and the prosecutor did not commit prejudicial misconduct, we affirm.


            Driving east on Highway 19, a state trooper noticed the lit dome light of a vehicle in the ditch on the west side of the road.  The trooper turned his car around, noticed that the dome light had been turned off, and pulled up near the vehicle.  He then observed appellant walking out of the ditch and approached him.  Appellant turned away from the trooper, who noticed that appellant was bleeding from the elbow, was unsteady on his feet, smelled of alcohol, and had bloodshot and watery eyes. 

            Most of the trooper’s contact with appellant was videotaped.   Appellant refused to perform field sobriety tests and a breath test, stating that he was not driving.  Blood was found only on the driver’s side of the vehicle, and the key was in the ignition.     

             A jury found appellant guilty of refusing to submit to testing and driving while under the influence.  Appellant was convicted, and the court stayed execution of his sentence.  He now appeals from the district court’s denial of his petition for postconviction relief. 


            “A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.”  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  A postconviction court’s decision will not be disturbed absent an abuse of discretion.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).  The same standard of review is applied to the district court’s evidentiary rulings.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). 

            1.         Trooper’s Opinion

            Appellant argues that the district court abused its discretion in allowing the trooper to provide expert opinion that appellant was the driver of the vehicle.  The postconviction court determined that the trooper’s testimony was admissible lay opinion.

            Although the parties’ dispute turns on whether appellant was driving the vehicle, appellant stated on the night of the accident, to the officer, and on videotape, that he climbed over to the driver’s side and tried to drive the vehicle out of the ditch but was unsuccessful.  Thus, even if appellant was not driving at the time of the accident, by his own admission, he had been in physical control and was trying to operate the vehicle while intoxicated.  See State v. Hendricks, 586 N.W2d 413, 414-15 (Minn. App. 1998) (setting out factors relevant to finding of physical control), review denied (Minn. Feb. 18, 1999). 

            With regard to the trooper’s testimony about driving, however, a lay witness may testify “in the form of opinion or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.”  Minn. R. Evid. 701. Opinion testimony of an officer “merely offered as a nonexpert opinion or inference drawn from his observations” is admissible.  State v. Hudspeth, 535 N.W.2d 292, 295 (Minn. 1995) (considering officer’s testimony that he suspected someone threw something out of getaway car under officer’s observation); see also State v. Stillday, 646 N.W.2d 557, 563 (Minn. App. 2002) (determining trial court did not abuse its discretion in allowing officer’s lay-witness testimony regarding characteristics of battered women).                                 Here, although the prosecutor’s question to the trooper included language about the officer’s “training” and “experience,” the prosecutor was not clearly asking for the trooper’s expert opinion based on “scientific, technical, or other specialized knowledge.”  Minn. R. Evid. 702 (experts may provide opinion testimony if “scientific, technical, or other specialized knowledge will assist the trier of fact”).  The trooper applied his training as he observed the scene, but did not testify based on expertise in accident reconstruction, forensics, or any other specialty area.  The officer, like any lay person, could rationally infer from his own observations that appellant was driving.  Because there was no expert to reconstruct the accident, it was helpful to the jury to have the officer describe what he saw and how he evaluated the scene.  Therefore, the postconviction court did not abuse its discretion in characterizing this as lay opinion.   

            Appellant also argues that the trooper’s opinion was just another way of saying that the trooper did not believe appellant’s claim that he was the passenger.  Vouching testimony is improper when a witness testifies that another witness was telling the truth or that he believed one witness over another.  See State v. Ferguson, 581 N.W.2d 824, 835 (Minn. 1998).  Neither is the case here.  The trooper’s opinion that appellant was driving was based on his observations and inferences, not on his expressed opinion that appellant was unbelievable.                                                                      

            2.         Prosecutorial Misconduct

            In his petition for postconviction relief, appellant argued for the first time that the state improperly played the videotapes of the arrest after agreeing not to refer to prior bad acts or prior DWIs. 

            When a defendant fails to object to the admission of evidence, this court’s review is under the plain error standard.  See Minn. R. Crim. P. 31.02.  “The plain error standard requires that the defendant show:  (1) error; (2) that was plain; and (3) that affected substantial rights.”  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002).  If those three prongs are met, the reviewing court may correct the error only if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.”  Id. (quotation omitted).  The failure to object or seek any cautionary instructions weighs heavily against granting any remedy.  State v. Ives, 568 N.W.2d 710, 713 (Minn. 1997).     A defendant’s failure to object to statements implies that the statements were not prejudicial.  State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984).  “A strong presumption exists that counsel’s performance fell within a wide range of reasonable assistance.”  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).

            The record is clear that the videotapes were in defense counsel’s possession well before the trial, and he had specifically reserved the right to challenge their content.  Defense counsel and the prosecutor discussed the videotapes on more than one occasion, and a part was redacted at defense counsel’s request.  The record reflects no specific reference to the videotapes in the motion or the order to exclude prior bad acts and no objection to them on that ground before or after they were played.  Considering the active part played by defense counsel in the admission of the videotapes without objection, there is no basis for appellant’s claim of misconduct by the prosecutor.  The only explanation for their admission without objection is that defense counsel strategically determined to use the videotapes to present appellant’s version of events and his defense that he was not driving. 

            In any event, appellant identifies no direct evidence in the videotapes of his prior bad acts and convictions, and, even if he had, the test for less serious misconduct is “whether the misconduct likely played a substantial part in influencing the jury to convict.”  State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).  In light of the overwhelming evidence of appellant’s intoxication on the night of the offense, his refusal to submit to tests, and his admission that he tried to drive the vehicle after it went in the ditch, it is unlikely that the suggestion that he was familiar with the criminal or implied consent process played a substantial part in influencing the jury to find him guilty of driving the vehicle and refusing to submit to a test.

            Appellant also argues that references to “invoking his right to counsel” should have been redacted from the tapes even though he did not object at trial.  When a defendant requests counsel, the context of his request determines whether the request raises a strong inference of guilt.  See State v. Roberts, 296 Minn. 347, 352-53, 208 N.W.2d 744, 747 (1973) (requesting counsel after officer asked whether he had committed crime raised strong inference of guilt).  Here, the trooper asked appellant if he wanted counsel before he decided whether to take the breath test.  Appellant stated that he did not need to call an attorney, negating any inference of guilt due to his request for counsel. 

            Finally, appellant argues that it was misconduct for the prosecutor to comment in his closing argument that appellant produced no evidence.  Appellant did not object when the prosecutor said in closing argument, “Now, what evidence is there that the defendant didn’t drive a car?  Well there is none.”   The prosecutor, however, then proceeded to comment on the evidence proffered by appellant to support his claim that someone else was driving.  In this context, the prosecutor’s comment simply meant that there was no credible evidence; saying there is no credible evidence is not misconduct. 


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.