This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Robert James Michener,




Filed November 21, 2006


Lansing, Judge



Hennepin County District Court

File No. 04043276


Steven M. Tallen, 4560 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)


Kenneth M. Bottema, 2915 South Wayzata Boulevard, Suite 101, Minneapolis, MN 55405 (for appellant)


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101


            Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Harten, Judge.*

U N P U B L I S H E D   O P I N I O N


            Robert Michener appeals from his conviction of operating a motorboat with an alcohol concentration of .10 or more, arguing that he is entitled to a new trial because he was not present when the district court rejected, in writing, the jury’s mid-deliberation request to review witness testimony.  Because the witness testimony requested for review related only to charges on which the jury found Michener not guilty, the error, if any, was harmless beyond a reasonable doubt, and we affirm.


            The facts of this case are not in dispute.  Hennepin County Sheriff’s deputies, on water patrol in July 2004, stopped Robert Michener’s watercraft when it approached them on Lake Minnetonka without a green navigational light.  After Michener failed field sobriety tests and a preliminary breath test, he was arrested for operating a watercraft while under the influence of alcohol.  At the police station, Michener took a breath test, which showed an alcohol concentration of .10.  The state charged Michener with operating a motorboat while under the influence of alcohol, operating a motorboat with an alcohol concentration of .10 or more as measured within two hours of the time of operation, and careless boating.  

            After the case was submitted and the jury had begun deliberations, the judge received a note from the jury asking if it was “possible . . . to review Deputy Hagen’s testimony as he described the administration and results of the horizontal gaze [nystagmus] test.”  Following a telephone conference with counsel for Michener and the state, the district court wrote on the bottom of the jury’s note, “You must rely on your recollection of the testimony.”  The bailiff returned the note to the jury, and deliberations continued. 

            The jury found Michener guilty of operating a motorboat with an alcohol concentration of .10 or more.  But he was acquitted of operating a motorboat while under the influence of alcohol and of careless boating.

            At the sentencing hearing, Michener’s substituted counsel moved for a new trial based on the district court’s failure to allow Michener to be present when the jury submitted the question and also argued that Michener’s previous attorney provided ineffective assistance of counsel by not demanding that Michener be allowed to be present.  The district court denied the motion, stating that the communication with the jury was in writing, that the court had no face-to-face communication with the jury, that the response was written only after consultation with both attorneys, and that the communication was in the nature of administrative housekeeping rather than a substantive inquiry.  Michener appeals the denial of his new-trial motion.



            When we apply the rules of criminal procedure to undisputed facts, our review is de novo.  State v. Nerz, 587 N.W.2d 23, 24-25 (Minn. 1998).  Under Minnesota law, a criminal defendant has the right to be present at all stages of his trial unless the defendant waives that right.  Minn. R. Crim. P. 26.03, subd. 1(1); Ford v. State, 690 N.W.2d 706, 711-712 (Minn. 2005).  Responding to a jury’s question is generally considered a stage of the trial.  See Minn. R. Crim. P.  26.03, subd. 19(2) (providing that jury must be called back into courtroom whenever it asks to review testimony); Ford, 690 N.W.2d at 712.  Consequently, the district court should refrain from communicating with a jury while it is in deliberations, unless the communication occurs in open court and in the defendant’s presence.  Ford, 690 N.W.2d at 712.  One exception is when the communication “relates solely to housekeeping matters.”  Id. at 713. 

            Michener argues that, because the district court’s communication was not mere housekeeping, a new trial is warranted.  We note at the outset, however, that even if a defendant is wrongfully denied the right to be present at a stage of the trial, the denial will not result in a new trial if the error is harmless beyond a reasonable doubt.  State v. Sessions, 621 N.W.2d 751, 756 (Minn. 2001).  An error is harmless beyond a reasonable doubt if the verdict was surely unattributable to the error.  Id.  Thus, even if we were to accept  Michener’s allegation that he was erroneously denied the right to be present during the exchange of written communication between the jury and the district court, the error would not require a new trial if the guilty verdict was surely unattributable to the error.

            The jury returned a guilty verdict only on the charge of operating a motorboat with an alcohol concentration of .10 or higher.  This charge requires the state to prove that Michener (1) was operating a motorboat, and (2) had an alcohol concentration of .10 or greater within two hours of operating the motorboat.  Minn. Stat. § 169A.20, subd. 1(5) (2002).  Michener did not dispute that he was operating the motorboat.  On the second element, the state presented evidence of Michener’s alcohol concentration through his test results from an Intoxilyzer, an infrared breath-testing instrument, and the testimony of a licensed peace officer who was a certified Intoxilyzer operator.  See Jasper v. Comm’r of Pub. Safety, 642 N.W.2d 435, 437 (Minn. 2002) (describing function and approval of Intoxilyzer).

The communication between the district court and the jury related solely to a request to review a deputy’s testimony on the horizontal gaze nystagmus test.  The deputy testified that the horizontal gaze nystagmus test is a standardized field sobriety test that he administered to examine Michener’s eye movement to determine whether he was under the influence of alcohol.  See State v. Klawitter, 518 N.W.2d 577, 579 (Minn. 1994) (discussing field dexterity tests, including horizontal gaze nystagmus, as method for determining whether person is under influence of alcohol).

The horizontal gaze nystagmus test is not needed to prove that a person’s alcohol concentration is .10 or higher.  The jury found Michener not guilty of careless boating and not guilty of operating a motorboat while under the influence of alcohol, charges to which the horizontal gaze nystagmus testimony were relevant.  An error in the district court’s handling of a question related only to those charges could not have affected the jury’s guilty verdict on the charge of driving a motorboat with an alcohol concentration of .10 or more. 

            Because the jury’s guilty verdict was surely unattributable to the district court’s alleged error in its limited communication with the jury, Michener has not asserted an error that would result in a new trial.  We, therefore, do not reach the issue of whether the communication was housekeeping or substantive in nature.


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