This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Roy Vincent Aguirre,


Filed June 27, 2006


Peterson, Judge


Stearns County District Court

File No. K8-04-2130



Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Janelle P. Kendall, Stearns County Attorney, Room 448, Administration Center, 705 Courthouse Square, St. Cloud, MN  56303 (for respondent)


John M. Stuart, State Public Defender, Melissa V. Sheridan, Assistant Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN  55121 (for appellant)



            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N



            In this appeal from a conviction of first-degree driving while impaired (DWI), appellant Roy Vincent Aguirre argues that the evidence is insufficient and that the prosecutor committed misconduct while examining a witness and during closing argument.  We affirm.


            An eleven-year-old girl was in her front yard in the morning on May 18, 2004, when she saw a white van drive around the block twice, varying its speed and traveling down the middle of the road.  After hearing a bang, the girl noticed that her neighbor’s mailbox was lying in the neighbor’s yard.  Just after the bang, the white van was at the corner near the neighbor’s yard.  The girl told her mother what had happened, and her mother went outside.  A short time later, the van went by again, traveling fast on the wrong side of the road for no apparent reason.  The girl’s mother walked over to where the neighbor’s mailbox had been and clearly saw the impression of tire tracks in the grass leading right up to the mailbox post.  She called police. 

            St. Cloud Police Officer David Missell responded to the call and arrived at about 10:40 a.m.  Missell observed the tire tracks going to and from the neighbor’s mailbox post and determined that after hitting the mailbox post, the vehicle had made a wide turn and traveled into the oncoming traffic lane to get back on the roadway.  The mother noticed the van about one block away and pointed it out to Missell.  Missell immediately got into his squad car, activated its red emergency lights, and began pursuing the van.  Missell caught up to the van at a traffic light.  When the light turned green, the van proceeded through the intersection, and Missell activated the squad-car siren.  The van turned right onto a bridge, accelerated, and then suddenly slowed down.  After slowing down, the van began weaving within its traffic lane, repeatedly swerving from the cement curb to the centerline and going into the bicycle lane.  The van pulled over and stopped when it got to the other side of the bridge.  Based on his experience, training, and observations, Missell believed that the van’s driver was under the influence of alcohol or drugs.

            As Missell approached, the van’s driver rolled down his window.  Missell identified the driver as appellant.  While standing outside the van, Missell detected a strong odor of an alcoholic beverage coming from appellant.  Missell noticed a fresh scrape mark on the van’s front bumper that was consistent with the bumper having struck a post.

            Missell requested that appellant exit the van and walk to the front of the squad car.  Appellant exited the van but walked to the passenger side of the squad car and reached out like he was going to open the door and get into the back seat.  Missell stopped appellant and directed him to the front of the squad car.  Appellant admitted to Missell that he had had a couple of alcoholic drinks.  Appellant’s speech was slurred, and his manner was defiant.  He demonstrated poor motor skills, swayed when walking, and his eyes were bloodshot, watery, and glassy.

            Missell repeatedly asked appellant to perform a field sobriety test, but appellant refused.  Missell described appellant as standing with his feet apart, which gives a person greater stability than standing with his feet together, and “swaying severely from side to side.”  Missell asked appellant if he was having difficulty understanding Missell.  Appellant replied that he was not stupid and that he understood what was being asked of him, but that he was not going to cooperate and perform the coordination tests.  Missell concluded that appellant was severely impaired, arrested him for DWI, and transported him to jail. 

            Officer Jared Rathbun, who came to the scene to assist Missell, testified that he detected a much stronger odor of an alcoholic beverage coming from appellant than was consistent with a person having had only two drinks.  Rathbun noted that appellant’s speech was slurred and that appellant was swaying back and forth and needed to take steps to maintain his balance.  It was obvious to Rathbun that appellant was impaired, and Rathbun did not believe that the signs of impairment were consistent with appellant having an illness like the flu.  Rathbun testified that if he had known at that time that appellant might be ill, it would not have changed his opinion that appellant was under the influence of alcohol.

            While preparing appellant’s van for towing, Rathbun removed a bottle from under the driver’s seat.  The bottle was labeled “Phillips Blackberry Flavored Brandy,” was half full of liquid, and smelled like alcohol.

            At jail, after Missell read the implied-consent advisory to appellant for the third time, appellant said that he wanted to talk to an attorney.  Eventually, appellant refused to take a breath test and accused Missell of being drunk.  Appellant then began to create a scene, and correctional staff moved him into a holding cell.

            Appellant was charged by complaint with one count each of first-degree DWI; first-degree refusal to submit to testing; driving after cancellation; leaving the scene of an accident; and open bottle.  Appellant pleaded guilty to driving after cancellation, and the charge of leaving the scene of an accident was dismissed.  The three remaining charges were tried to a jury, which found appellant guilty of all three charges.  The district court sentenced appellant for the DWI conviction.  This appeal followed.



            Appellant argues that the evidence was insufficient to prove beyond a reasonable doubt that he was under the influence of alcohol.  In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they reached.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Circumstantial evidence is entitled to as much weight as direct evidence.  State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992).  But a stricter standard of appellate review applies when a conviction is based on circumstantial evidence.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  Circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).

            Appellant argues that the stricter circumstantial-evidence standard should be applied to this case because no one saw appellant consume any alcohol, no field sobriety tests were performed, and there was no evidence showing appellant’s alcohol concentration.  But this court has rejected the argument that eyewitness accounts of a driver’s condition and behavior are only circumstantial evidence of the driver’s intoxication and has determined that the eyewitness observations are direct evidence of the conditions the witnesses observed.  State v. Stokes, 354 N.W.2d 53, 56 (Minn. App. 1984).

            Three eyewitnesses observed appellant driving erratically.  Both Missell and Rathbun detected a strong odor of an alcoholic beverage coming from appellant.  Missell described appellant as demonstrating poor motor skills, having slurred speech and bloodshot, watery, and glassy eyes, and swaying when walking and standing.  Rathbun noted that appellant’s speech was slurred and that he swayed back and forth and needed to take steps to maintain his balance.  Appellant’s manner in the presence of the officers was uncooperative, defiant, and argumentative, and appellant failed to follow Missell’s instructions to go to the front of the squad car and to perform a field sobriety test.  All of these observations are direct evidence of appellant’s condition.  In addition to the direct evidence, there was circumstantial evidence indicating intoxication, including strong evidence that appellant’s van hit the mailbox and the half-full bottle of blackberry brandy under the driver’s seat of appellant’s van.  Also, appellant admitted consuming a couple of alcoholic drinks. 

            Viewed in the light most favorable to the conviction, the evidence was sufficient to allow the jurors to reasonably conclude that appellant was under the influence of alcohol.


            Appellant argues that the prosecutor committed misconduct while examining a witness and during closing argument.  Appellant did not object to the allegedly improper examination or argument.

Failure to object [to prosecutorial misconduct] ordinarily forfeits a criminal defendant’s right to review, although a defendant may obtain appellate review of and relief from plain errors affecting substantial rights if those errors had the effect of depriving the defendant of a fair trial.   That is, the trial error must have been so clear under applicable law at the time of conviction, and so prejudicial to the defendant’s right to a fair trial, that the defendant's failure to object--and thereby present the trial court with an opportunity to avoid prejudice--should not forfeit his right to a remedy.


Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996) (citations omitted). 

            Appellant argues that the prosecutor committed misconduct by referring to “an investigator from the public defender’s office” during redirect examination.  During cross-examination of Officer Proshek, defense counsel asked, “You did tell our investigator. . . that [appellant] was not being inconsiderate to any other staff members other than Officer Missell, correct?”  On redirect examination, the prosecutor asked, “Officer Proshek, [defense counsel] has referenced a statement that you made to an investigator from the public defender’s office on October 21st of this year.  Do you recall talking to an investigator from the PD’s office?”  During a recess following the next question and answer, the court cautioned the prosecutor that referring to the public defender’s office was improper.  The prosecutor apologized, saying, “I’m sorry.  I wasn’t --[.]”

            It appears that the prosecutor’s reference to the public defender’s office was inadvertent.  There were no other references to the public defender’s office by the prosecutor.  The improper reference was only minor misconduct and was not prejudicial to appellant.  See State v. Bonn, 412 N.W.2d 28, 30 (Minn. App. 1987) (rejecting argument that reference to public defender deprived defendant of his right to a fair trial when the misconduct was inadvertent, the prejudicial impact was both speculative and minimal, and the evidence implicating defendant was overwhelming), review denied (Minn. Oct. 21, 1987).

            Appellant also argues that the prosecutor committed misconduct during closing argument by referring to evidence as undisputed while discussing the elements of the DWI charge.  The prosecutor stated:

[H]ow do we know beyond a reasonable doubt that [appellant] drove a motor vehicle under the influence of alcohol?


            Well, the driving part, that’s part of it.  That’s very simple.  I don’t think there’s any dispute about that.  [Appellant] [w]as pulled over by Officer Missell on the Stearns County side of the bridge.  He was the only one in the vehicle.  [Appellant] doesn’t seem to have an issue with the fact that he was driving and he was pulled over.


            The Minnesota Supreme Court has cautioned against characterizing the state’s evidence as undisputed because such characterization could erroneously suggest to the jury that the defendant has an obligation to testify or call witnesses.  State v. Schneider, 311 Minn. 566, 567, 249 N.W.2d 720, 722 (1977); State v. Jensen, 308 Minn. 377, 379, 242 N.W.2d 109, 110-11 (1976).  Repeatedly referring to evidence as undisputed can constitute misconduct, particularly when the defendant does not testify at trial.  See State v. Streeter, 377 N.W.2d 498, 501-03 (Minn. App. 1985) (holding that the prosecutor’s closing argument deprived the defendant of a fair trial when the state characterized the evidence as “undisputed” or “uncontradicted” at least eight times, focusing on defendant’s failure to testify).  But a single reference, although unwise, is not likely misconduct because it does not suggest that the defendant had any obligation to call witnesses.  State v. DeVere, 261 N.W.2d 604, 606 (Minn. 1977).

            The prosecutor made only one reference to there not being a dispute about appellant driving.  The statement is consistent with appellant’s defense theory and does not indicate that appellant had an obligation to call witnesses.  During closing argument, defense counsel stated, “There is no question that [appellant] drove a motor vehicle.”  Under these circumstances, even if the prosecutor committed misconduct in characterizing evidence as undisputed, the misconduct was not prejudicial to appellant.

            Citing State v. Johnson, 672 N.W.2d 235, 239 (Minn. App. 2003), review denied (Minn. Mar. 16, 2004), appellant argues that the following argument by the prosecutor was improper:

So why not take the test?  Just take the test.


            [Appellant] said over and over and over . . . I’m not going to take your test.  I’m not going to take your test.  I’m not going to blow.  I’m not doing it.  I’m not taking your test.  Why not?  Prove Officer Missell wrong.  He called Officer Missell a whole bunch of names.  He clearly did not enjoy being arrested by Officer Missell. . . . 


            . . . .


            But show Officer Missell, that he clearly didn’t like, show him wrong.  If you are not drunk, if you just have the flu or pneumonia, if Officer Missell is wrong, if Officer Rathbun is wrong, if Officer Proshek is wrong, prove them wrong, just take the test.  Let’s find out.  Take the test.


            But that’s the problem.  That’s the inherent problem.  Take the test and show you are sick, not just drunk.  Well, why not?  Because that test tells us the exact level, the exact alcohol concentration that a person is at.  And it tells us if they are over the legal limit.


            The same day, the same hour, the same ten-minute span.  If you are sick, if you are not drunk, for heaven’s sake why wouldn’t you take the test?  But he didn’t.  He refused to take the test[.]  


            On rebuttal, the prosecutor argued:

            The defense is upset and asks you to find [appellant] not guilty because, in his words, we don’t have an objective measure of [appellant’s] intoxication.  Now why is that?  There’s no objective proof of [appellant’s] intoxication because he refused to take the test.  He refused to take the objective test to tell us his exact level of alcohol concentration.  Kind of counter-intuitive.  You can’t complain that there’s no objective evidence when you refuse to provide it.


            In Johnson, the prosecutor stated during closing argument that no medical expert had given an opinion about whether appellant had suffered an adrenal crisis or was intoxicated.  672 N.W.2d at 239.  Defense counsel argued that both appellant’s performance on the field sobriety tests and his decision not to take an alcohol-concentration test following the implied-consent advisory were attributable to confusion and other symptoms of an adrenal crisis, which were due to appellant’s Addison’s disease.  Id.  After the jury returned guilty verdicts, appellant moved for a mistrial and argued that the prosecutor's remarks constituted misconduct.  Id.  The district court noted that defense counsel had not objected during the argument and determined that the prosecutor’s comments referred to appellant’s affirmative defense of reasonable refusal and denied the motion.  Id.

            This court concluded:

            In her closing argument, the prosecutor referred to appellant’s failure to call a medical expert to testify about Addison’s disease.  In general, it is improper for a prosecutor to comment on a defendant’s failure to call a witness or contradict testimony.  But appellant had the burden of persuasion on the affirmative defense of reasonable refusal.  Appellant argued that the disease was a reason for his test refusal.  It was not error for the prosecutor to comment on appellant’s failure to produce evidence on this issue.


            But appellant was also charged with DWI, which he defended by attempting to show that the Addison’s disease was also an explanation for his display of indicia of alcohol.  This defense attempts to negate an element of the prosecutor’s case, on which the burden of persuasion rests at all times with the prosecution.  Thus, the jury could have taken the prosecutor’s comment regarding the lack of medical evidence to mean that appellant had some burden to disprove he was under the influence, and if this occurred, the comment would amount to misconduct.


Id. at 240 (citation omitted).

            Appellant’s refusal to take the test was admissible under Minn. Stat. § 169A.45, subd. 3 (2004), which states, “Evidence of the refusal to take a test is admissible into evidence in a prosecution under section 169A.20 (driving while impaired).”  It is not misconduct for a prosecutor to argue reasonable inferences from evidence in the record.  State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996).  And at trial, appellant contended that his conduct was due to pneumonia and argued that the police failed to use available testing methods to determine whether he was intoxicated and that the charges against him were not based on tangible evidence.

            The prosecutor’s argument responds to appellant’s claim that his conduct was due to pneumonia and addresses appellant’s argument that police failed to use available testing methods to determine whether he was intoxicated and did not attempt to collect tangible evidence of intoxication.  Therefore, even if the argument was misconduct because it suggested that appellant had the burden of disproving intoxication, there was also a permissible reason for allowing the argument, and allowing the argument was not so clearly erroneous that it meets the plain-error test.