This opinion will be unpublished and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

C7-96-303

State of Minnesota,

Respondent,

vs.

Robert Wayne Beyer,

Appellant.

Filed December 3, 1996

Affirmed

Peterson, Judge

Nobles County District Court

File No. T4952094

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

Gordon L. Moore, III, Assistant Worthington City Attorney, P.O. Box 517, Worthington, MN 56187 (for Respondent)

Michael F. Cromett, Assistant State Public Defender, E-1314 First National Bank Building, St. Paul, MN 55101 (for Appellant)

Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Forsberg, Judge.[*]

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

PETERSON, Judge

On appeal from a conviction for driving while under the influence of alcohol, appellant raises evidentiary and prosecutorial misconduct issues. We affirm.

FACTS

While on patrol, Worthington police officer Tim Gaul saw a semi-truck approaching his squad car. Gaul testified that when the truck was within three or four car lengths of the squad car, it quickly changed lanes and passed the squad car; the truck was exceeding the speed limit when it passed; and after passing the squad car, the truck changed lanes again and pulled closely in front of a car. A short time later, after observing the truck travel down the middle of two westbound lanes of a road, Gaul decided to stop the truck. Gaul testified that after he activated the squad car lights, the truck traveled about three blocks before stopping, whereas most cars stop within less than one block.

Gaul testified that after stopping, appellant Robert Beyer got out of the truck and began walking back towards the squad car. Gaul said that he observed several indicia of intoxication: Beyer was staggering and seemed to be having a difficult time walking; Beyer's eyes were bloodshot and watery; Beyer's speech was slurred; an odor of an alcoholic beverage came from Beyer; and Beyer had difficulty balancing while standing.

Gaul asked Beyer to get into the front seat of the squad car. There, Gaul asked Beyer to recite the alphabet, and Beyer was unable to do so correctly. When Gaul asked Beyer to count from 7 to 17 and then backward from 17 to 10, Beyer did not respond. Gaul then had Beyer step out of the squad car to perform sobriety tests. Beyer performed a balance test so badly that Gaul did not have him perform any further tests.

Gaul decided to arrest Beyer for driving while intoxicated (DWI). Gaul testified that based on his experience with DWI arrests, he believed Beyer was highly intoxicated. Gaul transported Beyer to jail. According to Gaul, at the jail, Beyer resisted Gaul's efforts to help him out of the car, swore at Gaul, and then began lunging and yelling at him. Gaul testified that when they were near the elevator, Beyer slipped while lunging at Gaul and scraped his forehead against the wall. Gaul testified that Beyer then went totally out of control, yelling, swearing, lunging, and flailing. He resisted getting on the elevator and when he got on the elevator, accused Gaul of beating him and threatened to sue for a million dollars.

An emergency medical technician (EMT) who was accompanying Gaul when Beyer was arrested and brought into jail, testified at trial. His testimony was consistent with Gaul's.

Gaul testified that Beyer continued to claim Gaul had beaten him and asked to see Gaul's supervisor, so Gaul called Sergeant Christopher Dybevick, the shift supervisor, to come and speak to Beyer. According to Dybevick, there was a strong odor of alcoholic beverage in the room where Beyer was being held, Beyer's eyes were bloodshot and watery, and Beyer was yelling profanities and acting confrontational and loud. Dybevick testified that Beyer claimed Gaul had no reason to stop him, and he should not have been arrested; when Dybevick told Beyer that he could smell that Beyer had been drinking, Beyer said he had had one drink; Beyer stood up from his chair and stepped toward Dybevick; Beyer continued to yell and swear at Dybevick; and Dybevick said he would not continue speaking with Beyer under such conditions and left the room.

Gaul read the implied consent advisory to Beyer. According to Gaul, Beyer was belligerent and unresponsive, stated that he did not understand and was not going to talk, told the officers to take him to jail, and threatened to sue for one and a half million dollars. Gaul stopped reading the advisory after 18 minutes. Dybevick concluded that Beyer had refused implied consent testing, and no test for alcohol concentration was administered.

Michael Simons, a jailer on duty when Beyer was brought into jail, testified that Beyer was being extremely loud, belligerent, and aggressive. Based on his experience as a jailer and a police officer, Simons believed Beyer was extremely intoxicated. Simons testified that Beyer would not cooperate with the booking process, jerked a telephone off a table, threw a telephone book, and refused to answer routine questions. Simons testified that he had to help Beyer get into his jail clothing because Beyer was too intoxicated to stand up and get his pants on. When Simons checked on Beyer about 15 minutes later, Beyer was passed out over a chair.

At trial, Beyer sought to introduce the testimony of eight witnesses to bolster his claim that Gaul had lied about Beyer appearing to be intoxicated and had physically assaulted Beyer. Beyer made an offer of proof that two witnesses would testify that they observed Beyer's injuries the day after his arrest and also about the way Beyer was acting the day after his arrest; one witness would testify that Gaul had threatened him, he had seen Gaul threaten others, and he had complained about Gaul; and other witnesses would testify that Gaul had stopped them for traffic offenses and then accused them of not cooperating and assaulted them. The district court excluded the evidence. A jury found Beyer guilty of driving while intoxicated and not guilty of refusing to submit to implied consent testing.

D E C I S I O N

1. Beyer argues that the district court deprived him of his right to present a defense by excluding the evidence about Beyer's appearance and demeanor the day after his arrest and about Gaul's treatment of others. The Sixth Amendment grants a defendant the right to present a defense. Washington v. Texas, 388 U.S. 14, 18-19, 87 S. Ct. 1920, 1923 (1967). But a "criminal defendant's right to present evidence in his defense is limited by the rules of evidence." State v. Medibus-Helpmobile, Inc., 481 N.W.2d 86, 91 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). "Rulings on evidentiary matters rest within the sound discretion of the trial court." Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984).

Minn. R. Evid. 401 defines relevant evidence as

evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Minn. R. Evid. 402 provides that irrelevant evidence is inadmissible.

Beyer argues that the evidence about his physical condition the day after his arrest is relevant to what occurred between him and Gaul. But it is undisputed that he scraped his forehead sometime after Gaul stopped him. Evidence about events that occurred after Gaul stopped Beyer was not relevant to whether Beyer drove while intoxicated. The district court properly determined the evidence about Beyer's physical condition and demeanor the day after his arrest was irrelevant.

Beyer sought to introduce the evidence about Gaul's treatment of others to attack Gaul's credibility. But

[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility * * * may not be proved by extrinsic evidence.

Minn. R. Evid. 608(b).

Beyer argues that, in this case, rule 608 should yield to his right to present a defense. To support this argument, Beyer cites several criminal sexual conduct cases that indicate that evidence about a victim's prior sexual conduct is admissible when the evidence establishes a pattern of behavior that is clearly or highly similar to the defendant's defense. See State v. Davis, 546 N.W.2d 30, 34 (Minn. App. 1996), review denied (Minn. May 21, 1996); State v. Crims, 540 N.W.2d 860, 868 (Minn. App. 1995), review denied (Minn. Jan. 25, 1996); State v. Goldenstein, 505 N.W.2d 332, 340 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993). Here, Beyer's offer of proof did not indicate that Gaul had a pattern of falsely accusing people of committing DWI, so the evidence about Gaul's treatment of others did not establish a pattern of behavior relevant to Beyer's defense that he had not been drinking. Cf. Goldenstein, 505 N.W.2d at 340 (evidence about prior accusations of rape relevant to complainant's credibility only when there has been determination that prior accusations were indeed fabricated). Moreover, Beyer's offer of proof was not specific enough to establish a pattern of behavior clearly similar to Beyer's claim that Gaul assaulted him and falsely accused him of being uncooperative. See Davis, 546 N.W.2d at 34 (when offer of proof did not state general content of witnesses' testimony, trial court had "no reason to believe their testimony would unveil incidents of conduct clearly similar to [defendant's] theory of consent").

Beyer argues the evidence about Gaul's treatment of others was also admissible pursuant to Minn. R. Evid. 404(b) and 406. Rule 404(b) excludes evidence of another crime, wrong or act to prove character but allows such evidence

for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

As with rule 608(b), Beyer's offer of proof was not specific enough to establish a similarity between Gaul's alleged treatment of others and Beyer's allegations that Gaul assaulted him and falsely accused him of being uncooperative. Moreover, Gaul's treatment of Beyer was irrelevant to any issue in this case other than Gaul's credibility. Even if Gaul had assaulted Beyer and falsely accused him of being uncooperative, it would not tend to prove Beyer's defense that he had not been drinking.

Minn. R. Evid. 406 provides that evidence about a person's habit "is relevant to prove that the conduct of the person * * * was in conformity with the habit." The district court determines whether a response to a situation "is sufficiently regular and whether the specific situation has been repeated enough to constitute habit." Id., 1989 comm. cmt. Beyer's offer of proof did not show a pattern of behavior that was sufficiently regular or repetitive to constitute a habit.

Even if the district court erred in excluding the evidence, a conviction will not be reversed based on the violation of a defendant's right to present evidence if the error was harmless beyond a reasonable doubt. State v. Post, 512 N.W.2d 99, 102 (Minn. 1994). Here, there was considerable evidence other than Gaul's testimony that Beyer was intoxicated. The EMT's testimony was consistent with Gaul's. Simons testified that Beyer appeared to be extremely intoxicated and that Beyer was unable to put on a pair of pants without assistance. Dybevick's testimony about the strong odor of alcohol in the room where Beyer was being held and about Beyer's appearance and behavior indicate Beyer was intoxicated. Any error in excluding the evidence about Beyer's demeanor and physical appearance and Gaul's treatment of others was harmless beyond a reasonable doubt.

2. Beyer argues the prosecutor committed misconduct in cross-examining Beyer and during closing argument. By failing to object to prosecutorial misconduct during trial, the defendant "is deemed to have forfeited his right to have the issue considered on appeal." State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980). The reviewing court, however, can reverse, notwithstanding the failure to preserve the issue, if the court deems the error sufficient to do so. Id. This court will not reverse a conviction based on prosecutorial misconduct if the error was harmless. State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974).

Beyer argues the prosecutor committed misconduct by asking whether he used to drink and whether he had been an alcoholic until the early 1980s. The state argues Beyer placed his character in issue by presenting evidence that he formerly worked as a deputy sheriff, thus, implying that he was the type of person who arrested persons for DWI, not the type of person who would commit the offense. Evidence about a defendant's character or character trait is admissible to rebut an assertion made by the defendant about a relevant character trait. Minn. R. Evid. 404(a)(1); see also United States v. Dahlin, 734 F.2d 393, 395 (8th Cir. 1984) (when defendant's alibi put at issue his reliability, responsibility, and family devotion, prosecutor entitled to ask, to a limited extent, about defendant's role in family fights and his drug dependency). Even if the questions were improper, the error was harmless. The questions were limited and did not indicate that Beyer had been drinking recently, and there was considerable evidence of Beyer's guilt.

Beyer also claims the prosecutor committed misconduct by asking Beyer about whether the officers were lying when they said Beyer admitted having something to drink and whether Gaul was lying when he said he read the entire implied consent advisory to Beyer. Assuming these questions were improper, the error was harmless. Cf. State v. Gaitan, 536 N.W.2d 11, 17 (Minn. 1995) (when defendant did not object to prosecutor asking defendant a number of times if witnesses whose testimony was contradictory to defendant's were lying, alleged prosecutorial misconduct was not basis for new trial).

Beyer finally argues the prosecutor committed misconduct by stating during closing argument:

Ask yourself if Mr. Beyer's story makes sense, and ask yourself if it's believable and fundamentally ask yourselves why three officers of the Worthington Police Department, and a civilian E.M.T. who are sworn to uphold the law in this community would, would lie and do these things and know that this would come to fruition. This is the unfortunate reality in the climate that we live today that increasingly it seems that police officers, due to a few highly publicized cases that, you know, shoot the messenger seems to be the response. Officers have a tough job and they deal with tough people. Mr. Beyer is a tough person. He had a bad night. He is guilty of DWI and refusal * * *.

This argument was not egregious enough to warrant reversal. See State v. Ture, 353 N.W.2d 502, 516-17 (Minn. 1984) (prosecutor's argument endorsing credibility of state's witnesses and injecting personal opinion about defendant's credibility was improper but not egregious enough to justify new trial when defendant did not object to argument during trial).

Even considering the cumulative effect of the claimed prosecutorial misconduct, Beyer is not entitled to a new trial given the evidence of his guilt. See Gaitan, 536 N.W.2d at 16-17 (affirming conviction when defendant alleged prosecutor committed misconduct in questioning state's witnesses, asking defendant if other witnesses were lying, and stating during closing argument that defendant had lied, but defendant did not object to most of alleged misconduct during trial).

Affirmed.

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