This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Terry Lee Kline,

Filed November 23, 1999
Short, Judge

Hubbard County District Court
File No. K098477

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

John A. Masog, Park Rapids City Attorney, 201 South Main Street, Park Rapids, MN 56470 (for respondent)

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2499 Rice Street, Suite 260, Roseville, MN 55113 (for appellant)

Considered and decided by Short, Presiding Judge, Willis, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

A jury convicted Terry Lee Kline of aggravated driving while under the influence of alcohol and refusal to submit to testing in violation of Minn. Stat. §§ 169.129, subd. 1(2), .121, subd. 1a (1998). On appeal, Kline argues he is entitled to a new trial because the trial court read an outdated jury instruction and his trial counsel was ineffective. We affirm.


Kline argues the trial court committed plain error by reading the instruction on refusal to submit to testing from the main volume, rather than the pocket part, of the Jury Instruction Guide. See Minn. R. Crim. P. 31.02 (allowing review of plain errors despite no objection at trial); State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (outlining plain error test); 10A Minnesota Practice, CRIMJIG 29.17.02 (1998) (instructions updated to reflect Olmscheid); 10A Minnesota Practice, CRIMJIG 29.17.02 (1990) (instructions used by trial court); State v. Olmscheid, 492 N.W.2d 263, 265 (Minn. App. 1992) (requiring probable cause instruction for refusal to test charge).

But a failure to instruct the jury affects substantial rights only if there is a reasonable probability that giving the instruction would have substantially affected the verdict. State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990). Here, the record shows: (1) Kline was riding his motorcycle on the evening of July 30, 1998; (2) Kline accelerated quickly as he turned into the alley, throwing up gravel and rocks; (3) Kline smelled of alcohol, swayed, and slurred his speech when he spoke to Officer Burns; and (4) Officer Burns conducted field sobriety tests on Kline and came to the opinion that Kline was under the influence of alcohol. Given these facts, no reasonable jury could have found Officer Burns lacked probable cause to believe Kline was riding his motorcycle under the influence of alcohol. In contrast to Olmscheid, non-driving was not a defense. Under these circumstances, Kline failed to prove he was prejudiced by the trial court's instructions.

Kline also argues he is entitled to a new trial because his trial counsel did not object to the outdated jury instructions or Officer Burns's horizontal gaze nystagmus testimony. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984) (requiring that counsel's representation fall below reasonableness and affect outcome for new trial based on ineffective assistance of counsel); Gates v. State, 398 N.W.2d 558, 561-62 (Minn. 1987) (applying Strickland). But Kline was not charged under the section of the law dealing with a driver having .10 BAC or higher. The jury only had to determine whether Kline was "so affected by an alcoholic beverage that he [did] not possess that clearness of intellect and control of himself as he otherwise would have." 10A Minnesota Practice, CRIMJIG 29.15 (1998) (instruction given by trial court). Given Officer Burns's testimony concerning his observations and Kline's admissions, the trial counsel's failure to object to the jury instructions or the horizontal gaze nystagmus testimony would not have altered the outcome of the trial. Under these circumstances, we cannot say that trial counsel's representation fell below an objective standard of reasonableness. In his pro se supplemental brief, Kline appeals issues that are collateral to his conviction, therefore, we need not reach those issues.