This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).




State of Minnesota,



James Douglas Pohl,


Filed August 26, 1997


Kalitowski, Judge

Stearns County District Court

File No. K2944405

Hubert H. Humphrey III, Attorney General, John B. Galus, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Roger S. Van Heel, Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303 (for Respondent)

John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.



Appellant James Pohl contends he is entitled to a new trial on the charge of criminal vehicular homicide because the district court erred in instructing the jury. We affirm.


District courts have considerable latitude in instructing the jury. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990). A reviewing court will not reverse a district court's jury instructions in a criminal case absent an abuse of discretion. State v. Jaworsky, 505 N.W.2d 638, 642-43 (Minn. App. 1993), review denied (Minn. Sept. 30, 1993). Challenged instructions must be assessed "in the context of the instructions as a whole." State v. Turnipseed, 297 N.W.2d 308, 312 (Minn. 1980) (citation omitted).

Pohl argues the district court erred in instructing the jury that "[t]he fact that a person under the age of 21 consumes alcohol does not in and of itself constitute causal negligence." But a party waives its right to challenge jury instructions on appeal by failing to object to them in the district court. State v. Shatto, 285 N.W.2d 492, 493 (Minn. 1979). Although Pohl claims that he objected to the instruction in the district court, we find nothing in the record to support this claim. Nor did Pohl object to the instruction in his motion for a new trial. Accordingly, we conclude Pohl waived objection to the challenged instruction.

Where a party waives an objection by failing to raise it before the district court, a reviewing court may nevertheless address the alleged error if "the error is one of fundamental law and results in substantial and material prejudice to a defendant's rights." State v. Dolbeare, 511 N.W.2d 443, 446 (Minn. 1994) (citation omitted); see Minn. R. Crim. P. 31.02 (governing plain error).

Here, Pohl does not object to the instructions as they pertain to driving under the influence. Rather, he claims the instruction that "[t]he fact that a person under the age of 21 consumes alcohol does not in and of itself constitute causal negligence" constitutes plain error because it misstates the law and is misleading.

Pohl neither explains, nor cites any authority in support of, his claim that the challenged instruction misstates the law. Moreover, the instruction that underage consumption does not alone constitute negligence is consistent with State v. VanWert, 442 N.W.2d 795 (Minn. 1989). In VanWert, the court held that evidence of driving under the influence, without more, could not establish both the driving under the influence element and the negligence element required under Minn. Stat. § 609.21 (1996). Id. at 797.

Here, underage consumption, without some evidence of impairment due to consumption, cannot satisfy the negligence requirement of section 609.21. See State v. Stark, 363 N.W.2d 53, 55 (Minn. 1985) (reviewing instruction given defining driving under the influence). Consequently, the challenged instruction did not misstate the law.

Nor was the instruction misleading. As respondent correctly notes, the prosecutor said in his opening statement that Pohl was negligent because he consumed alcohol while underage. In addition, the court instructed the jury on several statutes governing the operation of motor vehicles and stated that the violation of any of those statutes "is evidence of negligence." Thus, the challenged instruction corrected the prosecutor's misstatement of the law and prevented any assumption by the jurors that the violation of state law prohibiting underage consumption, like the violation of any of the other statutes described by the court, constituted negligence.

Even if the challenged instruction was an error of fundamental law, it did not result in substantial and material prejudice to Pohl's rights. The following evidence adequately supports a finding of negligence even without considering the evidence of Pohl's underage consumption: (1) respondent's expert witness testified that Pohl was traveling approximately 67 miles per hour at the time of impact, in violation of the applicable 55 mph speed limit; (2) despite testimony that Pohl had at least nine seconds from the time he should have seen the victims to the time that he struck them, Pohl said he never saw the victims, and failed to apply his brakes until after he had hit them; and (3) Pohl weaved onto the right shoulder of the road and into the grass just before striking the victims. Given these facts, and viewing the instructions in their entirety, omission of the challenged instruction would not have changed the verdict.

Because Pohl waived his objection to the instructions and the challenged instruction did not constitute plain error, Pohl is not entitled to a new trial.