This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C2-96-337

State of Minnesota,
Respondent,

vs.

Roger Franklin Meade,
Appellant.

Filed September 10, 1996
Affirmed
Lansing, Judge

Dakota County District Court
File No. K895941

Hubert H. Humphrey III, Attorney General, 445 Minnesota Street, Suite 1400, St. Paul, MN 55101 (for Respondent)

Michael J. Mayer, William L. Bernard, Grannis, Grannis, Hauge, Eide, Anderson & Keller, P.A., 1260 Yankee Doodle Road, Suite 200, Eagan, MN 55121 (for Respondent)

Daniel Guerrero, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for Appellant)

Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge
This appeal challenges the district court's denial of supplemental jury instructions on "physical control" in a D.U.I. case. Because it was within the district court's discretion to refuse the supplemental instructions, we affirm.
FACTS

A jury found Roger Meade guilty of driving while under the influence of alcohol, Minn. Stat. §subds. 1(a), 3(c)(1) (1994), and driving with an alcohol concentration of 0.10% or more, Minn. Stat. §subds. 1(d), 3(c)(1) (1994). Before trial Meade stipulated to being under the influence, and the sole issue at trial was whether or not he had been driving or had physical control of a vehicle.
A Burnsville police officer testified that he came upon Meade and his friend, David Heyer, at about 3:00 a.m. when he noticed their pickup truck off the road. The box of the truck was lying several feet from the truck's cab. As the officer approached, the two men were in the cab of the truck; Meade on the driver's side, Heyer on the passenger's side. The keys to the truck were on the floor of the cab on the passenger's side. Both men had been drinking. The officer further testified that Meade said they had been "four-wheeling" and that he (Meade) had been driving.
Meade and Heyer both testified that Heyer had been driving and that they had hit a "pothole" on their way to the river. According to their testimony, Meade was seated on the driver's side when the officer arrived because he intended to use the truck's CB radio.
In instructing the jury, the district court read the definition of physical control set out in 10A Minnesota Practice, CRIMJIG(1990). Defense counsel offered additional instructions consistent with its theory of defense, but the district court declined to change the pattern instruction. During deliberations the jury sent a note asking the trial judge: "Do the keys have to be in a truck ignition to apply [the] physical control clause?" The district court responded by re-reading the CRIMJIG definition of physical control.
D

The refusal to give a requested jury instruction rests within the discretion of the district court, and no error results absent abuse of that discretion. State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989). On review, jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).
Meade's theory of defense rests on the proposition that he was a passenger in the vehicle. His claim is that the district court's jury instructions precluded this theory by not making clear to the jury that mere presence in an automobile is not enough to prove "physical control." Meade correctly points out that under Minnesota law it is not a crime for a person who is under the influence of alcohol to be a passenger in a car and that "[m]ere presence in or about the vehicle is not enough for physical control." State v. Starfield, 481 N.W.2d 834, 838 (Minn. 1992). Nonetheless, for several reasons, Meade's argument for reversal cannot prevail.
First, the district court's instruction requires more than mere presence in the vehicle. The court instructed that "[a] person is in 'physical control' of a motor vehicle when the person [(1)] is present in a vehicle and [(2)] is in a position to either direct the movement of the vehicle or keep the vehicle in restraint." 10A Minnesota Practice, CRIMJIG 29.02 (1990) (emphasis added). A reviewing court, in interpreting jury instructions, "must 'assume that the jurors were intelligent and practical people.'" State v. Weaver, 386 N.W.2d 413, 418 (Minn. App. 1986) (quoting State v. Edwards, 269 Minn. 343, 350, 130 N.W.2d 623, 627 (1964)), review denied (Minn. June 19, 1986). An intelligent and practical interpretation of these instructions suggests that there are two elements involved in physical control. One element is presence in the vehicle. The second element is the ability to direct or restrain the vehicle, i.e., more than "mere presence."
"A party is entitled to an instruction on his theory of the case if there is evidence to support it, but the court need not give the requested instruction if it determines that the substance of the request is contained in the court's charge." State v. Persitz, 518 N.W.2d 843, 848 (Minn. 1994). Meade's rejected instruction would have emphasized that mere presence in the vehicle was insufficient evidence to convict, but the substance of his request was contained in the charge as given. Nothing in the instruction limited the jury's ability to consider the overall situation in determining physical control.
Second, these jury instructions state the law fairly and adequately. The statutory language referring to physical control is "meant to cover situations where an inebriated person is found in a parked vehicle under circumstances where the car, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property." Starfield, 481 N.W.2d at 837. By including "physical control" in the statute, "the legislature intended that the statute be given the broadest possible effect." See State v. Juncewski, 308 N.W.2d 316, 319 (Minn. 1981) (observing that statute no longer requires "actual physical control"). The CRIMJIG instruction reflects a purpose to encompass a broad range of conduct (or potential conduct) with the phrase "physical control." While we are mindful that penal statutes must be construed strictly, State v. Corbin, 343 N.W.2d 874, 875-76 (Minn. App. 1984), we find that the definition offered in the CRIMJIG instruction falls well within the intended scope of the statute.
Third, Meade's proposed jury instruction, with the exception of the first two sentences, was taken from the supplemental instructions suggested by the supreme court in Starfield, 481 N.W.2d at 839. This supplemental instruction, however, was intended for "cases where the State is claiming 'physical control' of a disabled motor vehicle." Id. (emphasis added). Meade's truck was operable and had been driven even though the cab had been separated from the box. We agree with the district court that Starfield, for this reason, is inapposite.
Finally, even had the supplemental instruction been offered, it would not have had a significant impact on the verdict. When faced with a refusal to give jury instructions, the reviewing court must "examine all relevant factors to determine whether, beyond a reasonable doubt, the error did not have a significant impact on the verdict. *[If] the omission did not have a significant impact on the verdict, reversal is not warranted." State v. Shoop, 441 N.W.2d 475, 481 (Minn. 1989) (citation omitted). The jury's question of whether the keys had to be in the ignition in order to find "physical control" demonstrates that they were considering factors other than mere presence in determining whether Meade was in physical control of the pickup truck. There is no reasonable doubt that, in arriving at their verdict, the jury considered factors in addition to Meade's mere presence in the pickup truck.
Affirmed.