This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



John Carl Anderson,


Filed May 4, 1999


Huspeni, Judge[*]

Stearns County District Court

File No. K2-97-4063

Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

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

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Huspeni, Judge.



Appellant argues that the trial court improperly admitted expert evidence, that a 50% upward durational departure in sentencing was unwarranted, and that the sentences were not imposed in the correct order. Because we see no abuse of discretion in either the evidentiary or sentencing decisions, we affirm.


Appellant John Carl Anderson was driving west on Highway 23 through Paynesville shortly before 6:00 p.m. on October 15, 1997. He spent much of the previous night drinking and had consumed additional alcohol that day. His driver's license had previously been revoked because of an alcohol-related incident.

Paynesville police officer Joe Schmitz, who knew of the revocation of appellant's license, noticed appellant driving past. Schmitz called dispatch to verify the status of appellant's license and pulled in two cars behind appellant.

With Schmitz behind him, appellant turned onto a street with a 30 m.p.h. speed limit and accelerated to 50 m.p.h. Schmitz turned on his lights and pursued appellant, planning to arrest him for speeding. Appellant then accelerated to 60 m.p.h. and began swerving over the centerline. When he came to a straight stretch, he accelerated to 100 m.p.h. Appellant slammed his brakes as he approached an intersection; his car spun out of control and its engine killed.

Schmitz pulled his car nose to nose with appellant's car, got out of the car, drew his gun, and told appellant to get out of his car. Appellant, however, backed down a farm driveway until stopped by a parked car. Schmitz moved his car so that it was perpendicular to the front of appellant's car, which was then trapped between Schmitz's car and the parked car. Schmitz again got out of his car with his gun drawn and told appellant to get out of his car.

Instead, appellant maneuvered his car around Schmitz's car. As appellant was pulling away, Schmitz reached into the open window of appellant's car and tried to grab the wheel. Appellant's car door knocked the gun out of Schmitz's hand. Schmitz concluded that the gun had fallen into appellant's car and set off in pursuit of appellant, who had headed back toward Highway 23.

Appellant did not see Schmitz behind him, but Schmitz did see appellant ahead. Appellant slowed down, stopped at the stop sign where the road intersected with Highway 23, crossed 23, and continued south towards his home. As Schmitz approached the intersection, he looked east and west for traffic on Highway 23, saw none, did not stop, and continued through the intersection at 50-60 m.p.h. But the brightness of the sun in the west prevented Schmitz from seeing a van going east on Highway 23. The van collided in the intersection with Schmitz's car, killing the driver, Gary Westby, and injuring his wife, Cynthia Westby, and their friend, Michael Erickson.

Appellant heard a noise and saw smoke in his rearview mirror. He drove home, hid his car in a shed under a tarp, changed clothes, took some liquor into the woods, and began drinking. The police found him there a few minutes later. Appellant told the police he had been home all day, had lent his car to a friend, and did not know where the car was. A blood test two hours later showed a blood alcohol concentration of .15. When the police later found appellant's car in the shed, Schmitz's gun was behind the driver's seat.

Appellant was charged with 13 felony gross misdemeanor and misdemeanor counts as a result of the incident. During trial, appellant's counsel attempted to impeach Schmitz by calling as a witness the retired Hennepin County chief deputy whom Paynesville had hired to conduct an independent investigation. On cross-examination, the prosecution asked this witness about his final recommendation. Over defense counsel's objection, the witness read into the record the concluding paragraphs of his summary of the accident:

Officer Joseph Schmitz has had sufficient training in pursuit driving issues and in the use of force. * * * I found no evidence of a need for additional training in either area other than an occasional refresher course in future years. I have found no evidence or indication that Officer Joseph Schmitz used anything but sound judgment in the matters relating to the decisions to pursue [appellant] on October 15, 1997; to continue that pursuit when [appellant] indicated flight; to use lethal force by drawing his weapon; and by continuing the pursuit after losing his weapon into [appellant's] vehicle; and by entering the intersection * * * at pursuit speed in light of the information and knowledge available to him at the time. All of the above resulted in the tragic death of an innocent motorist and injuries to the passengers of the Westby van and to Officer Schmitz * * * . Regardless, the events were the results of decisions made wholly by [appellant] to violate the laws of the State of Minnesota--.

At this point the court interrupted and said, "The last sentence that he read is not relevant and that is struck." Appellant's counsel then moved for a mistrial, which the court denied. At the end of the trial, the court instructed the jury that the expert's evidence was entitled to neither more nor less consideration than any other evidence.

The jury found appellant guilty on 6 of 13 counts. He was sentenced first to 108 months for criminal vehicular homicide, an upward departure of 40 months. The court explained the upward departure:

[Y]ou like in a typical [criminal vehicular homicide] case made the bad decision to drink and drive. But unlike the typical cases that I have seen, this decision went on far too long. * * * [I]mmediately upon being requested to stop you sped up to over 100 miles an hour. You went through a stop sign, which apparently you attempted to stop but couldn't because of your high speed. There was an opportunity to you, for you there to realize the craziness of your actions but you didn't * * * . You came to a curve, you knew you couldn't make the curve so you hit your brakes and lost control of the vehicle. The officer was then able to approach you and you decided not to stop. And you went back, backed into that farm and you were stopped again and you still continued to escape from that situation.

Appellant was also sentenced then to a consecutive year and a day for criminal vehicular operation resulting in substantial bodily harm and to a concurrent year for criminal vehicular operation resulting in bodily harm and aggravated driving while under the influence; the aggregate sentence was 120 months.

Appellant argues that the court abused its discretion in denying the mistrial and in admitting the expert witness's evidence. He challenges his sentence on the ground that the court abused its discretion in departing from the guidelines and erred in sentencing him first on the criminal vehicular homicide count; he also asserts various errors in his pro se brief.


1. Denial of the motion for a mistrial

"The standard of review for denial of a motion for a mistrial is abuse of discretion." State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998). Appellant argues that he was entitled to a new trial because the expert witness testified that "the events were the results of decisions made wholly by [appellant] to violate the laws of the State of Minnesota--" and the court's striking of that testimony and instructing the jurors to ignore it was ineffective. But instructing a jury to ignore certain testimony immediately after it is offered has been approved as an appropriate method of handling such testimony because "[j]urors are presumed to follow [the court's] instructions." State v. James, 520 N.W.2d 399, 405 (Minn. 1994). Because the trial court struck the challenged testimony and instructed jurors to ignore it, there was no abuse of discretion in refusing to declare a mistrial.

2. Admission of the expert witness's testimony

A trial judge is given wide latitude in determining whether there is sufficient foundation upon which an expert may state an opinion. Even if this court would have reached a different conclusion as to the sufficiency of the foundation, the decision of the trial judge will not be reversed absent clear abuse of discretion.

Benson v. Northern Gopher Enters., 455 N.W.2d 444, 446 (Minn. 1990) (citations omitted). Appellant alleges that the trial court inappropriately permitted expert testimony related to Schmitz's lack of negligence and the appropriateness of his actions. The court held that appellant's counsel had opened the door for this testimony by calling the witness and qualifying him as an expert in the field of police conduct investigations. The expert's testimony on Schmitz was factual: he testified as to Schmitz's training and competence and as to the lack of evidence that Schmitz had not used sound judgment, but not as to whether Schmitz's conduct was an intervening cause. See Minn. R. Evid. 704 (providing that expert testimony is admissible even if it embraces an ultimate fact to be determined by the jury); Minn. R. Evid. 704 cmt. (expert testimony must concern factual matters); State v. Dewald, 463 N.W.2d 741, 744 (Minn. 1990) (testimony of an officer who had not been present at the crime but who had reviewed the evidence that, in his opinion, the defendant had killed the victim, held to be "factual rather than legal" and not prejudicial to the defendant). The court did not abuse its discretion in admitting the expert's testimony.[1]

Moreover, even if the expert's testimony were erroneously admitted, the error was harmless if the verdict cannot be attributed to it. See State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996). Here, the jury heard testimony that appellant was driving without a license and without proof of insurance after having been drinking, that appellant three times refused to stop despite Schmitz's directives, and that appellant fled from Schmitz at high speed. The verdict that appellant was guilty of fleeing a police officer resulting in death and of criminal vehicular homicide is not attributable to the expert's testimony.

3. The upward departure

The decision to depart from sentencing guidelines rests within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). Generally, in determining whether to depart in sentencing, a trial court must decide "whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question." State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984). Here, in sentencing appellant to 108 months for criminal vehicular homicide, the court explained that appellant's conduct was significantly more serious than the typical case. His decision to flee the police was made first when he accelerated to 100 m.p.h. and went through a stop sign, was repeated after his car spun and died and Schmitz ordered him out of the car, and was repeated again after he backed into a driveway and maneuvered around Schmitz's car to drive away. The court also used appellant's hiding of his car and his lie to the police implicating the friend to whom he said he had lent the car as a basis for an upward departure. See State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995) (a court may consider "the offense-related conduct of trying to pin the blame for the offense on someone else * * * ."). The court did not abuse its discretion in departing upward in sentencing.[2]

4. Order of sentencing

Appellant claims Gary Westby died half an hour after the accident and uses this claim to argue that he should first have been sentenced to the presumptive 15 months on the injury-related offense, then to the presumptive 48-month consecutive sentence on the death-related offense. But appellant offers no proof for his claim that Westby lived for half an hour after the collision, and the testimony of a police officer who helped remove Westby from the van a few minutes after the collision was that Westby did not have a pulse. Appellant's argument has no basis in fact.

5. Arguments in the pro se brief

Appellant's argument that the court erred in permitting the state to amend the complaint fails because Minn. R. Crim. P. 3.04 permits liberal amendment; his argument that the court erred in delivering lengthy and confusing jury instructions fails because the jury instructions included no misstatements of law and resulted from the efforts of both attorneys and the court.

Appellant also argues that the court erred in permitting the prosecutor to elicit a statement that appellant did not have a license at the time of the accident, to argue that letting an intoxicated driver without a license or proof of insurance and with a gun elude the police is "basically anarchy," and to inflame the jury by focusing on appellant's alcohol consumption. But appellant was not asked why he did not have a license at the time of the accident; the prosecutor was refuting appellant's stated belief that Schmitz had no right to stop him for driving without a license; and referring to the state's charge that appellant was driving under the influence was not inflammatory. The arguments in appellant's pro se brief are without merit.

There was no abuse of discretion in the evidentiary decisions or the sentencing, nor did the court err in any of the ways appellant alleges.


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

[1] Appellant's argument that the expert testimony was inadmissible because it did not assist the jury, in violation of Minn. R. Evid. 702, is also without merit. The witness testified as an expert on police conduct; the jury was not equally competent to determine the reasonableness of actions taken while pursuing a fleeing suspect.

[2] Appellant argues that his lack of personal involvement in the accident weighs against the aggravating factors. But the accident would not have occurred had not appellant repeatedly chosen to flee the police. Lack of causation was not a mitigating factor.