This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,





Kelly L. Wise,



Filed January 23, 2007


Shumaker, Judge


Meeker County District Court

File No. K8-04-610



Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Stephanie L. Beckman, Meeker County Attorney, Meeker County Courthouse, 325 Sibley Avenue North, Litchfield, MN 55355-2155 (for respondent)


John M. Stuart, State Public Defender, G. Tony Atwal, Assistant Public Defender, Suite 425, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)




            Considered and decided by Minge, Presiding Judge; Shumaker, Judge; and Hudson, Judge.



U N P U B L I S H E D   O P I N I O N


            Appellant challenges her conviction of criminal vehicular operation resulting in great bodily harm on the grounds that (1) the court improperly allowed expert testimony on the point of impact and mechanism of the collision from which the charge arose; (2) the court erred in refusing to give appropriate instructions on negligence; and (3) the court violated appellant’s Fourth Amendment rights by including a warrantless-search provision in appellant’s probation conditions.  Because the court did not err in its evidentiary rulings or its charge to the jury, and because there was no Fourth Amendment violation, we affirm.


            A jury found appellant Kelly Wise guilty of the felony of criminal vehicular operation resulting in great bodily harm for negligently driving her motor vehicle while having methamphetamine in her body and becoming involved in a collision with another vehicle.  Wise stipulated that she had methamphetamine in her system at the time of the collision and that the passenger in the other vehicle suffered great bodily harm.  The only issue presented to the jury was that of Wise’s negligence.

            The collision occurred on Highway 55 in Meeker County.  Wise had driven her van in a westerly direction along that road and she stopped on the shoulder just before the Five Mile Bridge to allow her passengers, Mark Hurd and his son Ryan Hurd, to get out so that they could go fishing.  As Wise returned to the roadway, her van was struck by a car driven by Lisa Kerzman, a 14-year-old unlicensed, inexperienced driver, who had taken over the operation of the car when her mother Karen Kerzman, the injured passenger, became too ill to drive.

            Wise contended that the traffic was clear from the east as she merged fully onto the highway to drive west when the Kerzman car came westbound around a curve and hit the van with a parallel impact as the car was attempting to pass the van.  Lisa Kerzman testified that, as she came around the curve, she saw the van on the shoulder of the highway and slowed her speed from 55 miles an hour to 45.  When she was about 10 feet away, the van began to make a U-turn, and the car struck it with a perpendicular impact. The highway in the area of the impact was a no-passing zone and had wide shoulders.

            Mark Hurd testified that he did not see the collision but that he heard the impact and saw the immediate aftermath.  He stated that when he left the van before the collision, he looked to see if there was any westbound traffic coming near.  Seeing none, he told Wise, “It’s clear.”  Immediately after hearing the impact, he looked and saw the car and the van moving parallel to each other along the highway.

            Three Minnesota Highway Patrol troopers responded to the scene and testified at trial.  Trooper Joseph Norstrom spoke with Wise at the scene and recorded her conversation:

NORSTROM:            Was there anybody else in the car—in the van with you?


WISE  :                       No, I had just dropped my boyfriend and his son off to fish.




WISE:                         And I was going to turn around.

NORDSTROM:         Okay.


WISE:                         [Indiscernible]  didn’t see them coming.


            At the hospital where Wise and the Kerzmans were taken, Wise told Norstrom that she “went to turn around” but “didn’t quite make it.”  Wise also said she was having hip pain before the collision and she tried to turn around to see westbound traffic but did not quite make it.

            Trooper Scott Urdahl questioned Mark Hurd at the scene.  Hurd told Urdahl,

[N]ext thing I remember is the noise and the car hitting.  She said to me over there that she was going to—she went to turn around and she went and didn’t see the car coming.  That’s what she told me. She was going to—she was going to make a U-turn is what she was doing.


In his trial testimony, Hurd stated that Wise had merged completely onto the highway before the collision.

            Sergeant Eric Mathwig took photographs at the scene showing skid marks, scuff marks, and Wise’s van, and he testified about the relation of the marks to the van.  When he began to testify to the “area of impact,” “where the two vehicles actually met or impacted . . . ,” defense counsel objected on the ground that Mathwig was not a trained accident reconstructionist.  The court overruled the objection, and Mathwig testified, over counsel’s continuing objection, about the mechanism of the collision.  He stated his opinions that Kerzman had tried “to swerve left to avoid the crash,” that Kerzman hit the van straight on and not at an angle, and that “the vehicles met at a right angle,” that the collision was “more of a right-angle type crash.”

            Mathwig also testified that the collision happened as the van was attempting to make a U-turn, that Wise should not have made the U-turn because of the proximity of another vehicle on the highway, and that “Wise was the primary contributing factor of the crash.”

            At the conclusion of the evidence, Wise proposed that the court instruct the jury on particular rules relating to Lisa Kerzman’s contributory negligence, but the court declined the request.

            After the jury found Wise guilty, the court stayed imposition of the sentence and placed her on probation.  One condition of her probation was that Wise would submit to a search of her residence when ordered by her probation agent.

            On appeal, Wise challenges the admissibility of expert testimony by Mathwig, the court’s refusal to instruct the jury on contributory negligence, and the requirement of warrantless searches of her residence as a condition of her probation.


Expert Testimony

            As Sergeant Mathwig testified about how the collision occurred, defense counsel asked the court for leave to ask questions for purposes of a foundational objection.  When Mathwig testified that he was not “a trained or certified accident reconstructionist,” defense counsel objected that Mathwig was “not an expert witness.”  In overruling that objection, and a continuing objection, and in permitting further testimony from Mathwig on accident reconstruction, the district court implicitly found Mathwig to be an expert and to be qualified to testify as such.

            The qualification of a witness to testify as an expert is within the trial court’s broad discretion and “[a] trial court’s decision on the qualifications of a witness to render expert testimony ‘will not be reversed unless it is based on an erroneous view of the law or clearly not justified by the evidence.’”  Block v. Target Stores, Inc., 458 N.W.2d 705, 709 (Minn. App. 1990) (quoting Hagen v. Swenson, 306 Minn. 527, 528, 236 N.W.2d 161, l62 (1975)), review denied (Minn. Sept. 28, 1990).  A witness may be qualified as an expert “by knowledge, skill, experience, training, or education . . . .”  Minn. R. Evid. 702.  “The knowledge requirement may be satisfied by either formal education or sufficient occupational experience.”  Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 761 (Minn. 1998).

            Mathwig testified that he had been to “several thousand” accident scenes and that he is a “primary investigator [of] between 75 and 100 crashes a year, and [he] probably assist[s] at another 100 crashes per year, and over 15 years that’s well over several thousand, just as a trooper.”  He also testified that he has had “advanced accident investigation training.”

            Given Mathwig’s substantial occupational experience in accident investigation, the court did not abuse its discretion in implicitly ruling that Mathwig was a properly qualified expert witness.  Furthermore, other law enforcement officers who were not formally certified accident reconstructionists have qualified to give expert testimony.  See Beckman v. Schroeder, 224 Minn. 370, 28 N.W.2d 629 (1947) (sheriff who had investigated 50 to 75 automobile accidents could render an expert opinion); May v. Strecker, 453 N.W.2d 549 (Minn. App. 1990)(officer who was 21-year veteran of police force and had investigated numerous rear-end traffic accidents could qualify as expert).

            Once qualified as an expert, a witness may testify to the subject of his expertise “in the form of an opinion or otherwise.”  Minn. R. Evid. 702.  Wise acknowledges that the admissibility of expert testimony is within the trial court’s discretion.  State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999).  But she contends that accident reconstruction testimony is disfavored; that expert reconstruction testimony is admissible only if lay testimony is nonexistent; that such testimony must be necessary; and that expert testimony on an ultimate issue is inadmissible if the testimony involves a legal conclusion or a mixed question of law and fact.

            As Wise notes, cases decided prior to the adoption of the Minnesota Rules of Evidence in 1977 seemed to disfavor expert accident reconstruction testimony.  She relies on Carmody v. Aho, 251 Minn. 19, 27, 86 N.W.2d 692, 698 (1957), for that proposition.  She then quotes a later supreme court case which held point-of-impact expert testimony admissible:

            The trend of the cases in other jurisdiction is to leave the matter to the trial court’s discretion, allowing the trial court to admit the accident reconstruction testimony if there is a need for the evidence and if the expert is qualified.  Most importantly, this is also the approach contemplated by our recently adopted Rules of Evidence.


State v. Dewey, 272 N.W.2d 355, 357 (Minn. 1978).  Wise argues that Dewey did not overrule Carmody but rather “indicated that trial courts could use the LeMieux test” for admitting accident reconstruction expert testimony.  See LeMieux v. Bishop, 296 Minn. 372, 377-78, 209 N.W.2d 379, 383 (1973) (stating that lay testimony is preferred and that reconstruction testimony as to speed is permissible if there is no lay testimony and if expert testimony is necessary).

            We do not read Dewey to impose the limitations on expert accident reconstruction testimony for which Wise argues.  Rather, the issue is governed by rule 702, which requires that the subject matter be outside the realm of ordinary knowledge; that the expert testimony be such that it can assist the trier of fact in understanding the evidence or determining a fact in issue; and that the witness purporting to provide such assistance be qualified to do so.  Minn. R. Evid. 702.  The “primary criterion for admissibility [of expert evidence] is the helpfulness requirement . . . .”  State v. Saldana, 324 N.W.2d 227, 230 (Minn. 1982).

            Here the question was whether this was a T-bone collision caused by a negligent U-turn, or a side-by-side collision that resulted from an improper attempt to pass.  Physical accident facts and expert testimony as to the significance of those facts were, in the trial court’s assessment, helpful to the jury and thus satisfied the primary criterion of admissibility.

            We also note that Wise did not object to some reconstruction evidence.  Mathwig’s use of photographs to explain the skid and scuff marks and to posit a perpendicular movement of the van in relation to the highway drew no objection.  Nor did Wise object when Norstrom gave his opinion that the collision occurred at a right angle and that the car hit the van as the van was beginning to make a U-turn.

            Thus, all of the testimony about the mechanism of the collision and the manner and point of impact were matters within the sound discretion of the trial court, and we hold that the court did not abuse its discretion in allowing that evidence.

            Wise also contends that Mathwig improperly testified to the ultimate legal issue in the case and thereby impermissibly drew a legal conclusion for the jury.  Wise was convicted of violating Minn. Stat. § 609.21, subd. 2(6) (2004).  The state was required under that statute to prove, among other elements to which Wise stipulated, that Wise operated her vehicle in a negligent manner.  Mathwig testified that Wise’s operation was the “primary contributing factor to the crash” and that “she should not have made that U-turn.”  Wise argues that this testimony merely told the jury what conclusion to reach.

            As to Mathwig’s testimony about Wise being the primary contributing factor, that opinion was not tantamount to saying Wise was negligent.  Rather, based on the physical evidence that had been properly admitted, Mathwig was identifying a causal component to explain how the collision occurred.  Such testimony is admissible in the court’s discretion.  See Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 154-55 (Minn. 1982) (stating that expert may give opinion as to cause of accident if based on facts in evidence); May v. Strecker, 453 N.W.2d 549, 555 (Minn. App. 1990) (holding that expert testimony that intoxication was major contributing factor in accident was properly admitted).  Furthermore, an admissible opinion or inference “is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”  Minn. R. Evid. 704.  The court did not abuse its discretion in allowing this testimony.

            Mathwig’s opinion that Wise should not have made the U-turn was gratuitous and improper.  But it is unlikely that the opinion merely informed the jury of what decision to make because, by the time of that testimony, the jury had heard substantial evidence from which it could conclude that Wise attempted to make a U-turn and did so negligently and caused the collision.  If the admission of the opinion was error, it was harmless.  See State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994) (stating that erroneously admitted evidence constitutes harmless error if there is no reasonable possibility that the verdict might have been more favorable to the defendant without the evidence).

Jury Instructions

            Wise argues that the court erred in refusing to give jury instructions relating to Lisa Kerzman’s negligence.  The selection of appropriate jury instructions is within the district court’s discretion and will not be reversed absent a showing of abuse of that discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  There will be no abuse of discretion if the entire charge fairly and accurately states the law that applies to the case.  State v. Flores, 418 N.W.2d 150, 153 (Minn. 1988).  A party has a right to appropriate instructions on the party’s theory of the case.  Poppenhagen v. Sornsin Constr. Co., 300 Minn. 73, 81, 220 N.W.2d 281, 286 (1974).  But it is up to the court to determine whether the evidence actually supports the party’s theory and if it does not, the requested instructions need not be given.  See Lauer v. Loecken, 295 Minn. 345, 347, 204 N.W.2d 817, 818 (1973) (“[T]here must be evidence to support the theory advanced by a litigant before he is entitled to an instruction, either specific or general, on the proposition involved in the theory.”).

            Wise acknowledges that the contributory negligence of a crime victim is not a defense to a criminal charge.  State v. Crace, 289 N.W.2d 54, 59 (Minn. 1979).  But she also correctly argues that “a victim’s negligence is relevant on the questions of whether the defendant was negligent, and, if so, whether that negligence was the proximate cause of the victim’s injuries.”  State v. Munnell, 344 N.W.2d 883, 888 (Minn. App. 1984).  She requested instructions relating to the conduct of Lisa Kerzman, who was not the victim, but whose driving was relevant to the causation question.  Wise asked that the court instruct on the prohibition against driving without a license; the rule for safely overtaking another vehicle; the absence of a rule allowing for emergency driving when the driver is ineligible to operate a motor vehicle; and the prohibition against following another vehicle too closely for safety.

            The court declined Wise’s requests for those specific instructions but did instruct the jury that “if there was negligence on the part of either Karen Kerzman or Lisa Kerzman, this can be considered by you only insofar as it tends to show that the defendant was not herself negligent or that the defendant’s acts did not constitute the cause of the injury.”  In declining to give Wise’s requested instructions, the court stated that they were not helpful on the issue of negligence and in fact could confuse the jury.

            Wise’s theory was that Lisa Kerzman’s negligent driving was the cause of the collision and of her mother’s injuries.  The instructions she proposed were particularizations of how Lisa Kerzman was negligent.

            The trial court recognized that there was evidence in the case that could support a finding of negligence on the part of each driver but that the dispositive issue was that of Wise’s negligence, if any.  Lisa Kerzman’s negligence was relevant only if the evidence was such that the only reasonable conclusion was that she was solely at fault—which clearly was not the case—or if her conduct, rather than Wise’s, was the cause of the collision.  To have given Wise’s proposed instructions would have placed undue emphasis on Lisa Kerzman’s negligence and could have created a de facto contributory- negligence defense.  The court wanted to avoid such an error and did so by refusing Wise’s instructions.  Yet the causation issue remained, and the court gave an instruction that permitted the jury to find that it was Lisa Kerzman’s conduct, rather than Wise’s, that caused Karen Kerzman’s injuries, with the result that the state would have then failed to prove an essential element of the charge.

            Because the court gave negligence and causation instructions that were supported by the evidence and that reasonably encompassed both the state’s theory and Wise’s theory of the collision, the court did not abuse its discretion in charging the jury as it did.

Warrantless Searches

            One of the conditions of Wise’s probation is that she must permit searches of her residence when her probation agent so requests.  Wise claims that such warrantless searches would violate the Fourth Amendment of the federal and Minnesota Constitutions.  The state argues that Wise did not object to this condition of probation in the trial court and thus has waived her right of review.

            Although it appears that Wise has waived this issue, Minnesota courts have overwhelmingly held that probationers may be subject to reasonable warrantless searches by their probation officers.  See State v. Kouba, 709 N.W.2d 299, 306 (Minn. App. 2006) (upholding constitutionality of warrantless searches under valid probation agreement).  In State v. Ernest, the Minnesota Supreme Court agreed

that probation searches fall within the ambit of the Fourth Amendment, and must therefore comport with a standard of reasonableness [but] we also recognize that, because of this special relationship between the probation officer and probationer, the law relating to probation searches cannot be strictly governed by automatic reference to ordinary search and seizure law.


293 N.W.2d 365, 368 (Minn. 1980) (citations omitted).  The court held that a warrantless search was reasonable for the purposes of the Fourth Amendment. 369.  Finally, “[a] consensual search is accepted as a reasonable search under the Fourth Amendment.  Thus, a [warrantless] search pursuant to a valid probation agreement generally will not violate the Fourth Amendment.”  Kouba, 709 N.W.2d at 306 (citations omitted).  Wise neither argues nor shows that her probation agreement is otherwise invalid; therefore, the search provision does not violate Wise’s constitutional rights.