This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Kevin Jerome Johnson,



Filed January 2, 2007


Dietzen, Judge


Hennepin County District Court

File No. 05013354


Lori R. Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Michael O. Freeman, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge; Lansing, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant challenges his conviction of first-degree refusal to submit to chemical testing, arguing (1) that the district court erred in denying his pretrial motion to suppress; (2) that prosecutorial misconduct occurred during closing argument; and (3) that the implied consent statute is unconstitutional as a violation of due process.  We affirm.


In March 2005, Officers Timothy Savior and Roderick Weber observed a car backing into a parking space near Washington Avenue in Minneapolis.  Because the officers noticed that the car’s door lock had been punched out with the lock missing and the handle gone, they suspected the car may have been stolen.  The officers checked to see if the vehicle had been stolen, but the state computer system was down.  Officer Savior observed appellant behind the driver’s wheel.

              Both appellant Kevin Jerome Johnson and the passenger then exited the car on the passenger side.  Officer Savior stated that appellant got out of the car “in a nervous manner” and staggered and swayed as he walked away.  When appellant was ordered to step over to the squad car, the officers observed that appellant’s eyes were bloodshot and watery, that his breath smelled of alcohol, and that his speech was slurred.  Appellant had the keys to the vehicle in his hand and stated that he was going to a nearby bar.  The officers were then able to access the state database and learned that the car was not stolen, but that appellant’s driver’s license had been cancelled.  When the officers asked appellant to perform several field sobriety tests, he refused.

            Appellant was transported to the police station and was read the implied consent advisory, but refused to submit to testing.  Appellant was then charged with first-degree felony driving while intoxicated (DWI) and first-degree refusal to submit to chemical testing.

            Before trial, appellant moved to suppress the evidence leading up to the arrest on the grounds that the police officers lacked probable cause to stop the vehicle.  The district court denied appellant’s motion, finding that there was no stop of an automobile and that there were “grounds for a Terry stop to talk with [appellant].”

            At trial, appellant testified that he was not the driver of the vehicle, denied that he was holding the car keys, denied staggering or swaying while walking, but admitted that he drank a beer and a half that day.  He stated that he refused to take the sobriety test because he was not the driver of the vehicle and did not believe that he was required to do so.

            The jury acquitted appellant of the DWI charge but convicted him of first-degree refusal to submit to chemical testing.  Appellant received the presumptive sentence of 54 months in prison.  This appeal followed.



Appellant argues that the police officers lacked the proper grounds to stop him on the street after he exited the vehicle, and that the court erred by refusing to suppress the evidence obtained as a result of the stop.  We review de novo the legality of an investigatory stop and questions of reasonable suspicion.  Magnuson v. Comm’r of Pub. Safety, 703 N.W.2d 557, 559 (Minn. App. 2005). 

The United States and Minnesota constitutions prohibit unreasonable search and seizure.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  In Terry v. Ohio, the U.S. Supreme Court held that investigatory stops are reasonable and not in violation of the prohibition against unreasonable search and seizure where the officer has a reasonable, articulable suspicion of criminal activity.  Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).  To be valid, the officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrants the intrusion.”  Id.  In this case, after appellant exited his vehicle, the officers called him over to their squad car and initiated an investigatory stop.  Thus, we must review whether the officers had a reasonable, articulable suspicion of criminal activity at the time of the investigatory stop.

Appellant argues that the police officers lacked reasonable, articulable suspicion of criminal activity, and relies on State v. Britton,604 N.W.2d 84, 89 (Minn. 2000) to support his position.  In Britton,the supreme court held that a vehicle with a broken window covered by plastic was insufficient to afford police reasonable suspicion that the vehicle was stolen.  Id.  Appellant argues that the broken lock on his car is similar to the broken window in Britton and is insufficient to justify a reasonable suspicion. 

But the district court distinguished Britton factually, concluding that a punched-out lock is “far more of a symptom that the car has been stolen than the fact that a window is broken and covered with plastic.”  We agree.  Here, Officer Savior testified that, based on his training and experience as a police officer, a punched-out door lock supported a suspicion that the car was stolen.[1]  Unlike a broken window, which may be broken for many reasons other than car theft (e.g. road debris, hail, baseball games gone awry, or other accidental causes; or intentional damage to steal the contents of the car) a broken lock is less likely to occur for reasons other than car theft.  A missing lock, by its nature, “support[s] at least one inference” that a car is stolen.  See State v. Schrupp, 625 N.W.2d 844, 847-48 (Minn. App. 2001) (noting that furtive and evasive behavior of driver “support at least one inference of the possibility of criminal activity”), review denied (Minn. July 24, 2001). 

Next, appellant argues that when the officers questioned appellant, they improperly extended the scope of their investigation.  Both the United States and the Minnesota constitutions require that the scope and duration of a stop be limited to its original purpose.  Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983); State v. Wiegand, 645 N.W.2d 125, 136 (Minn. 2002).  “The scope of a stop must be strictly tied to and justified by the circumstances which rendered the initiation of the investigation permissible.”  State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999) (quotations omitted).  Investigations may be expanded beyond the original purpose “only if the officer has reasonable, articulable suspicion of such other illegal activity.”  Wiegand, 645 N.W.2d at 135.

            Here, the appellant demonstrated indicia of intoxication.  Id.  Specifically, Officer Savior observed that as appellant walked away from them, he “appeared to have some trouble, maybe staggering, swaying side to side.”  When appellant spoke with the officers, they observed that his eyes were bloodshot and watery, his breath smelled of alcohol, and he had the car keys in his hand.  Taken together, the circumstances provide a reasonable, articulable basis for the officers’ suspicion that appellant had engaged in an alcohol-related driving offense, and the officers’ inquiry was reasonably extended beyond its original purpose.  Cf. Wiegand, 645 N.W.2d at 135-37.  Therefore, the officers had the necessary articulable suspicion for their inquiries, and the district court properly applied the law in declining appellant’s motion to suppress evidence.


Appellant argues that unobjected-to prosecutorial misconduct at closing argument deprived him of a fair trial.  He argues that the prosecutor committed misconduct by (1) injecting race into the closing argument, and (2) improperly shifting the burden of proof to the defendant.  A conviction will be reversed for prosecutorial misconduct “only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.”  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003) (citing State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000)).  

Recently, the Minnesota Supreme Court concluded that “appellate courts should use the plain error doctrine when examining unobjected-to prosecutorial misconduct.”  State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006).  The plain error doctrine requires that there be (1) error; (2) that is plain; and (3) the error must affect substantial rights.  Ramey, 721 N.W.2d at 302 (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)). 

In Ramey, the supreme court concluded “the burden should be on the prosecution to show lack of prejudice before we will affirm a conviction.”  Id. at 301-02.  Thus, the burden continues to be on the non-objecting defendant to demonstrate both that error occurred and the error is plain, but once those two elements are satisfied, the burden then shifts to the state to demonstrate lack of prejudice, that is, that the misconduct did not affect substantial rights.  Id. at 302.

A.        Race

It is improper to inject race into a closing argument when race is not relevant.  State v. Ray, 659 N.W.2d 736, 747 (Minn. 2003).  Our supreme court has expressed a “strong commitment to rooting out bias, no matter how subtle, indirect, or veiled” and that racial bias in the courts “must be confronted whenever improperly raised in judicial proceedings.”  State v. Cabrera, 700 N.W.2d 469, 475 (Minn. 2005).

During the state’s closing argument, the prosecutor injected race by stating:

            The defendant hasn’t raised his race as an issue in this case.  There were some questions during voir dire about the fact that Mr. Johnson is an African American, and the possibility exists that one or more of you might have it in the back of your mind, well, maybe these cops are racist.  Maybe these are the O.J. cops or something.


            I would submit to you that if these officers were racist, why did they just ID Mr. McIntosh and let him go?  If Mr. McIntosh was the driver of the vehicle, if he was really the driver of the vehicle and if he didn’t have a valid driver’s license, why would they let him go?


Respondent concedes that injecting race in the closing argument was error, but argues that it did not affect appellant’s substantial rights, and was a less serious error than the cases that have reversed on the basis of the prosecutor’s discussion of race. 

            On the charge of failure to submit to testing, appellant challenged whether the officers had probable cause to believe that he drove while under the influence.  But as we previously concluded in section I, the officers had ample grounds to believe that appellant was driving under the influence.  And where significant evidence exists to support the verdict, the error does not prejudice the appellant’s rights.  See Cabrera, 700 N.W.2d at 475 (finding that “strength of the evidence” made verdict unattributable to error, despite racial comments in closing).  The prosecution has therefore met its burden of showing lack of prejudice to appellant.  Ramey, 721 N.W.2d at 302.

Appellant further argues that State v. Cabrera requires a new trial.  In Cabrera, the prosecutor stated that the defense attorney engaged in “racist speculation” and otherwise suggested that the defense attorney was drawing biased conclusions on the basis of race.  700 N.W.2dat 474.  The defense attorney repeatedly objected, but was overruled.  Id.  On appeal, the supreme court found that the combination of the prosecutor’s improper statements and the district court’s ruling “may have led the jury to conclude that defense counsel himself was racist—an implication wholly unsupported by the record.” 474-75. 

We conclude that Cabrera is factually distinguishable.  Here, the prosecutor did not affirmatively argue that the defense attorney was racist, but rather argued the negative, i.e., that the police did not exhibit racial bias.  And unlike Cabrera, appellant had the opportunity to object to the prosecutor’s argument regarding race, but chose not to do so.  Thus, the injection of race in Cabrera was far more serious. 

The prosecutor’s comments are more similar to those in State v. Taylor, 650 N.W.2d 190, 207 (Minn. 2002).  In Taylor, the appellant also challenged the prosecutor’s closing argument.  There, the prosecutor did not directly mention race, but alluded to the O.J. Simpson trial in arguing that the defense’s charge that the police had tampered with the evidence was unsubstantiated.  Id.  The prosecutor said:

This is no O.J.  She might want you to think O.J., but this is no O.J.  This is Robert Taylor, and what she’s telling you is the police in this case had the opportunity and the ingenuity and the interest and the criminal intent, let’s be clear, it would be criminal intent for these officers to do this, to tamper with evidence in this case.  That’s what she’s telling you.


Id. at 207, n.14.  The supreme court found that the “remark was made not so much to compare appellant to Simpson but rather to allege something about police officers.”  Id. at 208.  Here, the prosecutor’s comments that the police officers had not demonstrated racial bias are similar to the prosecutor’s comments in Taylor, because they too “allege something about police officers.”  Id. 

            Additionally, comments that are not a theme of the closing argument should not be given undue prominence.  Taylor, 650 N.W.2d at 208.  Here, race was mentioned only once, and only with respect to the officers’ actions.  It was not a theme of the closing argument and, therefore, should not be given undue prominence. 

            B.        Shifting the burden of proof to the defendant

Appellant argues that the prosecutor’s closing argument improperly shifted the burden of proof to the defendant.  Appellant identifies a number of statements, which include the following, “[e]ven if the defendant wasn’t driving, if he wasn’t drunk, why in the world wouldn’t he take one of these tests to prove that he wasn’t drunk . . . the reason he didn’t take a test was because he was drunk, obviously.  Case closed.”

            Due process requires the state to prove every element of a crime beyond a reasonable doubt.  State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995) (citing In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072 (1970)).  “A defendant’s due process rights are violated if the burden to disprove the existence of any element of the crime charged is impermissibly shifted to the defendant.”  Id.(citing Mullaney v. Wilbur, 421 U.S. 684, 701-04, 95 S. Ct. 1881, 1891-92 (1975)). 

Minnesota law, following U.S. Supreme Court precedent, permits the state to use a defendant’s refusal to submit to chemical testing as affirmative evidence of the defendant’s intoxication.  McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 855 (Minn. 1991) (citing South Dakota v. Neville, 459 U.S. 553, 566, 103 S. Ct. 916, 924 (1983)).  As such, statements that present the refusal as evidence of intoxication do not impermissibly shift the burden.  Rather, the statements offer a permissible inference.  Therefore, the prosecutor’s actions in this respect were neither error nor plain error.  Ramey, 721 N.W.2d at 302; Griller, 583 N.W.2d at 740.


Appellant argues for the first time on appeal that the implied consent statute unconstitutionally shifts the burden of proof to the defendant.  But when the constitutionality of a statute is not challenged in the district court, a party cannot raise the issue for the first time on appeal.  State v. Schleicher, 672 N.W.2d 550, 555 (Minn. 2003) (citing Hampton v. Hampton, 303 Minn. 500, 501, 229 N.W.2d 139, 140 (1975)).

But, even if we were to examine the issue, our standard of review is very narrow.  Minnesota statutes are presumed constitutional and our “power to declare a statute unconstitutional should be exercised with extreme caution.”  Associated Builders & Contractors v. Ventura, 610 N.W.2d 293, 299 (Minn. 2000).  Statutes should be declared unconstitutional “only when absolutely necessary.”  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).  “The party challenging a statute has the burden of demonstrating beyond a reasonable doubt a violation of some provision of the Minnesota Constitution.”  Id.; see also Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn. 1979) (holding person challenging constitutionality of a statute must “demonstrate[] beyond a reasonable doubt that the statute violates some constitutional provision”).

Appellant’s argument consists of one sentence that asserts the statute is unconstitutional and the quotation of an entire concurring opinion.  See State v. Myers, 711 N.W.2d 113, 119-20 (Minn. App. 2006) (Randall, J., concurring), review granted (Minn. May 16, 2006).  Appellant has not met his burden of demonstrating a violation of the constitution. 


[1]Here, that inference was actually correct—only appellant and his passenger were not the car thieves.  Rather, the car had previously been stolen by removing the lock and the owner had not yet repaired the lock upon the car’s return.