This opinion will be unpublished and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


State of Minnesota,


Lawrence Richard Dolan,

Filed November 9, 1999
Holtan, Judge[*]

Dakota County District Court
File No. K19849

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

James C. Backstrom, Dakota County Attorney, Charles A. Diemer, Chief Deputy County Attorney, 1560 Highway 55, Hastings, MN 55033 (for respondent)

Howard Bass, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for appellant)

Considered and decided by Harten, Presiding Judge, Short, Judge, and Holtan, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant was convicted of second-degree assault, two counts of fleeing a peace officer, fourth-degree assault, criminal vehicular operation resulting in substantial bodily harm, driving after cancellation, four counts of fifth-degree controlled substance crimes, and one count of possession of a legend drug. Appellant challenges the trial court's denial of his motion to suppress evidence, claiming an unconstitutional search and seizure of his person, his blood and urine, and items in his car. Appellant also challenges the trial court's exclusion of expert testimony, the use of a jury instruction on the revival of an aggressor's right to self-defense, and the trial court's imposition of a 39-month, executed sentence. We affirm.


On December 24, 1997, appellant stopped at the Mega Stop truck stop in Lakeville and parked on the north side of the store. Lakeville Police Officer Eilers, while on routine patrol, noticed appellant's car back out of its parking stall and drive very slowly around the building and into a front parking space. Eilers ran appellant's license plate number on the Mobile Data Terminal (MDT) in her squad car and learned the license plate was "not on file." Eilers testified she was already suspicious of appellant's vehicle due to its very dark tinted windows, and that this driving conduct, which she considered "furtive," heightened these suspicions. Eilers parked her squad car approximately 15 feet behind appellant, shined her spotlight on the car and activated her flashing red lights. Eilers approached the car and directed appellant to roll down the window. Appellant rolled the window down a few inches, and after two more requests appellant rolled the window all the way down.

Eilers shined her flashlight into the vehicle, and requested appellant's driver's license. Appellant furnished his license and asked Eilers why she had stopped him. Eilers did not respond, and instead asked appellant why he was at the Mega Stop, where he was coming from, and where he was going. Appellant told her he was on his way to his parents' home in Burnsville, from his residence in Belle Plaine.

Eilers then went back to her squad car, and learned that appellant's driver's license had been cancelled as inimical to public safety. Eilers's supervisor, Sgt. Hakala, arrived at the scene, and Eilers requested a backup unit. Officers Parks, Bussler, and Polinski joined Eilers and Sgt. Hakala at the Mega Stop shortly thereafter. Eilers ordered appellant to exit his vehicle, but appellant did not get out, and instead asked why he had to get out of the car. Eilers repeated her order several times, and appellant remained in his car and continued asking why he had to get out of the car. When the officers began yelling at appellant, appellant began rolling up his window. Several witnesses reported hearing appellant say, as he rolled up the window, something like "Why are you asking me to do this" or "I don't want [or like] to have to do this." Eilers shoved her flashlight between the window and the frame; at the same time Sgt. Hakala began striking the front passenger window with his flashlight. Officer Parks smashed in the driver's side window. At approximately this time, appellant's car engine began to accelerate. Officer Parks motioned to people in the nearby pickup truck to take cover.

Officer Parks then began firing his gun at the car. Appellant shifted the car into reverse and the car moved backwards 14 feet and hit Eilers's squad car. Eilers also was hit and dragged backwards as the car moved, and fell onto the pavement. Officer Parks continued shooting at appellant. Appellant's car then moved forward nine feet and struck the pickup. Officer Parks stopped firing his gun when the car hit the pickup and stopped moving. Appellant left his car, Officer Polinski handcuffed him, and he was taken to the hospital. The BCA was called to investigate the incident.

The district court denied appellant's pretrial motion to suppress items seized from the car, blood and urine evidence, and his clothing and personal property. After a two-week jury trial, the jury returned a verdict on September 3, 1998, which found appellant guilty on all counts except one count of second-degree assault (involving Officer Parks). On October 16, 1998, the court denied appellant's postverdict motions and imposed concurrent, executed sentences of 13 months on count 8 (possession of cocaine), one year on count 7 (driving after cancellation) and 39 months on count 1 (assault in the second degree).


I. Seizures of Appellant, Appellant's Blood and Urine, and of Controlled Substances in Appellant's Car

Upon review of a pretrial order on a motion to suppress evidence, "we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing--or not suppressing--the evidence." State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citing State v. Othoudt, 482 N.W.2dW.2d 218, 221 (Minn. 1992)).

Appellant was seized when Officer Eilers parked behind him and activated her flashing red lights. Under Minnesota law, a

"person has been seized if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter."

Id. (quoting State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (citations omitted)).

The seizure, however, was constitutional. Brief investigatory seizures are constitutional in the absence of probable cause or a warrant if the police officer can articulate "`specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." State v. Martinson, 581 N.W.2d 846, 849-50 (Minn. 1998) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)). All that is required is that the stop not be the product of "mere whim, caprice, or idle curiosity." Marben v. State, 294 N.W.2d 697, 699 (Minn. 1980) (citation omitted). The police officer may draw inferences and deductions based on her experience, general knowledge, and personal observations, as well as on the nature of the offense suspected, the time and the location. Olmscheid v. Commissioner of Pub. Safety, 412 N.W.2d 41, 42 (Minn. App. 1987), review denied (Minn. Nov. 6, 1987).

The police officer in this case articulated several facts sufficient to justify an investigatory seizure of appellant. The police officer suspected that appellant's car windows were tinted to a sufficient degree to violate Minn. Stat. § 169.71, subd. 4(c). Prior to approaching appellant's car, the police officer learned that the car's license plates were "not on file." While "not on file" may mean different things, not all of which correspond to illegal activity, it is an articulable fact supporting a suspicion of illegal activity. Moreover, before the officer's approach, appellant drove slowly from one area of the parking lot to another. While not illegal, this driving conduct constituted an articulable fact that, in conjunction with the other factors, fulfilled the requisite constitutional standard.

Appellant's blood and urine samples were removed at the hospital, without a warrant, while he was unconscious. The constitutional prerequisite for a nonconsensual removal of blood of an unconscious driver is probable cause plus exigent circumstances. State v. Aguirre, 295 N.W.2d 79, 82 (Minn. 1980). The Minnesota Supreme Court has stated that the probable cause that is required is probable cause to believe that a crime has been committed and probable cause to believe not that the defendant is intoxicated, but rather that the test will result in the discovery of evidence that will aid in the prosecution of that crime. Tyler v. Commissioner of Pub. Safety, 368 N.W.2d 275, 279-80 (Minn. 1985). While Tyler dealt with breath tests and the crime of criminal negligence, there is no reason for the standard to differ in this case. Here, the BCA agent who ordered the test had sufficient probable cause to believe some form of assault had been committed. The agent knew appellant had attempted to leave the scene, that an officer had suffered some form of injury, and that appellant's driver's license had been cancelled. For these reasons, the agent had sufficient probable cause to believe that the tests would result in the discovery of evidence relevant to the prosecution of the crime. The exigent circumstances requirement is also met. It is well recognized that the necessity of preventing the loss of evidence due to the evanescent nature of blood and urine content can constitute exigent circumstances. See State v. Condon, 497 N.W.2d 272, 275 (Minn. App. 1993).

The search of appellant's vehicle was constitutionally valid under the automobile exception to the search warrant requirement. Police can search a car without a warrant, "including any closed containers within the vehicle, if they have probable cause to believe the search will result in a discovery of evidence or contraband." State v. Search, 472 N.W.2d 850, 852 (Minn. 1991) (citing United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157 (1982)). If the police have probable cause to believe a car was used as "an instrumentality of a crime, and that it contains evidence of a crime, it is constitutionally permissible to immediately search the car without a warrant." State v. DeWald, 463 N.W.2d 741, 748 (Minn. 1990) (citation omitted). The police knew appellant's car had been used as an instrumentality of the crime of assault, giving them probable cause to search it for evidence. The police knew of appellant's refusal to comply with officer instructions, giving them a basis for an inference that appellant had been using some form of controlled substance. The knowledge of the crime and appellant's behavior gave the police probable cause to search the car without a warrant.

II. Exclusion of Expert Testimony

The admission or exclusion of expert testimony "rests within the sound discretion of the trial court and will not be reversed unless there is clear" or apparent error. State v. Riley, 568 N.W.2d 518, 526 (Minn. 1997) (quoting State v. Koskela, 536 N.W.2d 625, 629 (Minn. 1995)). The ultimate question "is whether the expert testimony will assist the jury in resolving the factual questions presented." Id. (citing Minn. R. Evid. 702).

The defense expert was prohibited from testifying on the issue of the distances and angles of the bullets fired, based on his lack of qualification. The sufficiency of an expert's qualifications "rests within the sound discretion of the trial court." State v. Moore, 458 N.W.2d 90, 96 (Minn. 1990) (citation omitted). The expert did not have formal training on the issue of bullet trajectories. His experience with measuring angles and distances, and his one previous experience of interpreting the angles and distances of bullets, did not constitute the extensive experience that would suffice in the absence of formal training. The trial court did not abuse its discretion.

The trial court's decision to exclude a defense witness's testimony about a 911 call tape was not an abuse of discretion. The test for excluded testimony is

"whether, assuming that the damaging potential of the [excluded evidence] were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt."

State v. Starkey, 516 N.W.2d 918, 927 (Minn. 1994) (alterations n original) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986)). In this case, there had already been evidence presented on the issue of the tapes, and the fact that the tapes had been in the control of the police. With this evidence, the defense could attack the credibility of the police and make the argument that the police were covering up their actions. In addition, the witness was uncertain as to what tape he actually heard and about which he proposed to testify that the tape had been altered. For the reasons above, even if the trial court committed error in refusing the testimony, it was not reversible error.

III. Jury Instructions

Selecting jury instructions is within the discretion of the trial court. State v. Jaworsky, 505 N.W.2d 638, 642 (Minn. App. 1993), review denied (Minn. Sept. 30, 1993). "In reviewing a trial court's jury instructions, we examine the record for abuse of discretion and errors of law." State v. Lory, 559 N.W.2d 425, 427 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997) (citations omitted). This court must view the jury instructions in their entirety to "determine whether they fairly and adequately explained the law of the case." State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988) (citation omitted).

Appellant contends the police were the initial aggressors, and, as such, that the jury instruction on the revival of an aggressor's right of self-defense, CRIMJIG 7.07, was prejudicial. Cases on the revival of an aggressor's right of self-defense usually involve physical violence. See State v. Thompson, 544 N.W.2d 8, 12 (Minn. 1996) (refusing instruction where defendant was aggressor by pulling a gun on the victim); Bellcourt v. State, 390 N.W.2d 269, 272 (Minn. 1986) (refusing instruction where defendant was aggressor by holding people at gunpoint); see also State v. Graham, 292 Minn. 308, 310-11, 195 N.W.2d 442, 444 (Minn. 1972) (instruction should have been given where defendant was initial aggressor by firing shotgun, but had right to self-defense because he had withdrawn from confrontation). However, the cases do not specifically require actual physical violence for the instruction to apply. The Iowa Supreme Court commented that "an actual physical assault is not always a prerequisite to use of a deadly weapon in self-defense," demonstrating that an actual assault is not always determinative of a self-defense situation. State v. Cruse, 228 N.W.2d 28, 31 (Iowa 1975). A reasonable jury could find that appellant was an aggressor. Appellant changed parking spaces, had a revoked driver's license and questionable license plates, resisted officer instructions, rolled up the car window, and made a muttered statement along the lines of "I don't want to have to do this," all while in a car with tinted windows at night. These actions could be interpreted by the police as threatening, hostile, or as the beginning of an altercation. Given appellant's behavior, the trial court did not abuse its discretion by giving the instruction on the revival of an aggressor's right of self-defense.

IV. Sentencing

A reviewing court will not reevaluate a sentence if "the trial court's discretion has been properly exercised and the sentence is authorized by law." State v. Eaton, 292 N.W.2d 260, 267 (Minn. 1980) (citations omitted). Appellant contends that because his convictions arise out of a single behavioral incident, the multiple sentences imposed violated Minn. Stat. § 609.035, subd. 1 (1998). This statute is intended to protect defendants convicted of multiple offenses "from unfair exaggeration of the criminality of the conduct and to ensure that punishment is commensurate with culpability." State v. Soto, 562 N.W.2d 299, 302 (Minn. 1997) (citations omitted). The determination of whether offenses arise from a single behavioral incident is dependent upon the particular facts and circumstances of each case. State v. Buhl, 520 N.W.2d 177, 183 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994).

Appellant was sentenced for possession of cocaine, driving after his license was cancelled, and assault. When the offenses include both intentional and unintentional crimes, the critical question is whether the offenses "[arose] out of a continuing and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment." State v. Holland, 421 N.W.2d 382, 389 (Minn. App. 1988) (alterations in original) (citing State v. Sailor, 257 N.W.2d 349, 352 (Minn. 1977)); see also State v. Anderson, 468 N.W.2d 345, 346 (Minn. App. 1991). Appellant committed the offenses of driving after cancellation and possession of cocaine well before the incident that led to the assault charge, indicating there was no unity of time and place. The offenses had different objectives and were not even against the same person or entity. The trial court did not abuse its discretion in concluding that appellant's offenses were not a single behavioral incident.

When multiple concurrent offenses are sentenced on the same day and before the same judge, sentencing should be in the order the offenses occurred. State v. Perez, 404 N.W.2d 834, 841 (Minn. App. 1987), review denied (Minn. May 20, 1987) (citing Minn. Sent. Guidelines cmt. II.B.101). The trial court may use the Hernandez method of calculating criminal history scores, counting convictions sentenced earlier that same day as part of the criminal history, if the convictions are for separate and distinct offenses not involving the same victims and the court is not trying to manipulate the guidelines. See State v. Gould, 562 N.W.2d 518, 521 (Minn. 1997). Appellant committed the offenses of driving after cancellation and possession of cocaine before he drove into the Mega Stop parking lot. Therefore, the court correctly sentenced appellant in the order the offenses occurred.

V. Lakeville Police Stop and Identify Policy

Appellant urges this court to review, and declare unconstitutional, the Lakeville Police Department's apparent practice of routinely questioning and checking the identification of patrons of the Mega Stop. In the case before us, the police officer had sufficient individualized suspicion to justify an investigatory seizure of appellant, and we therefore decline to rule on this issue.

VI. Peremptory Challenges

The state urges this court to invalidate Minn. R. Crim. P. 26.02, subd. 6, which provides for different numbers of peremptory challenges for defendants and the state. We are invited to rule on this issue, in light of appellant's conviction on all charges but one, and notwithstanding the fact that the state did not seek immediate review of the trial court's pretrial ruling. See Minn. R. Crim. P. 28.02, subd. 11, and Minn. R. Crim. P. 28.04, subds. 1, 3. Nor did the state file a notice of review in this appeal. The state asks for prospective application of a favorable ruling. The posture of this case does not warrant discretionary review. The supreme court, the rulemaking body, is the proper forum for rule change. We decline to rule on this issue, as it is not properly before this court.


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