This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
C1-99-411

State of Minnesota,
Respondent,

vs.

Jody Thomas Goar,
Appellant.

Filed December 7, 1999
Affirmed
Holtan, Judge[*]

Carlton County District Court
File No. K8-98-954

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

Marvin E. Ketola, Carlton County Attorney, James M. Ross, Jr., Assistant County Attorney, 202 Courthouse, P.O. Box 300, Carlton, MN 55718 (for respondent)

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

Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Holtan, Judge.

U N P U B L I S H E D   O P I N I O N

HOLTAN, Judge

On appeal from his conviction for driving while under the influence, Jody Thomas Goar argues that the district court abused its discretion in denying his request for public funding for an expert witness. Because we see no abuse of discretion, we affirm.

FACTS

On July 31, 1998, the Carlton County Police Department received a report from a private citizen who witnessed erratic driving on a local highway. After seeing a car matching the description swerve twice over the centerline, a police officer stopped the car driven by appellant Jody Thomas Goar, a/k/a Jerry Lee Cruitt.

Appellant smelled of alcohol, slurred his speech, staggered, stumbled, and used the car door for support. He also refused to perform field sobriety tests. The officer arrested appellant for driving while under the influence of alcohol. Appellant again refused to perform field sobriety tests at the law enforcement center.

At the time appellant was arrested, his driverís license had been revoked as inimical to public safety for multiple alcohol-related infractions. He testified at trial that:

I had been on a bender for about ten days, almost two weeks, of drinking constantly. I was sick as a dog. I was too sick to drink more, unfortunately.

When asked how he was driving, appellant stated:

Right down, perfect. And I was sick as a dog. But I wasnít going over the line. In fact, the way I remember, which isnít too well because I was sick from drinking for so long.

When asked if he was under the influence of alcohol while driving, appellant stated:

Not at all. Well, I was under the effects of alcohol in the sense that I had been drunk for a week and a half. Constant debauchery party, wonderful time. But I was just, I was real sick. Sick to the point of complete weakness. Could barely talk.

When asked if his driving was impaired, appellant stated:

My driving wasnít impaired. My mind was. My body was. I couldnít eat for two or three days after.

Appellant admitted refusing to undergo breathalyzer and other sobriety tests. He also admitted to giving the officer an alias and an incorrect birth date. Additionally, a second police officer testified that appellant smelled of alcohol, slurred his speech, and had unsteady balance.

Prior to trial, appellant requested public funds to hire a medical expert to testify about his level of intoxication. The court denied the motion.

[S]ince there was no test, there is not the normal reliable or particularly trustworthy scientific data that would call for an expert. * * * [I]f it was a subdivision D or there were issues about the test readings and things of that nature, either the breathalyzer or the intoxilyzer, blood or urine, that would be somewhat different. But the Court will exercise its discretion at this time and not allow the delay in the trial for purposes of an expert * * * to be offered in this area * * *.

At sentencing, appellant raised the issue again. He now asks this court to reverse and remand for a new trial at which he is provided funds to hire an expert.

D E C I S I O N

1. Necessity of an Expert

Appellant argues that the district court abused its discretion by failing to provide public funds for expert witness fees. In Minnesota, an indigent defendant may request funding from the district court for necessary expert witness services. Minn. Stat. ß 611.21(a) (1998) provides that the court shall authorize expert witness fees "[u]pon finding * * * that the services are necessary and that the defendant is financially unable to obtain them." The determination of expert witness fees is a matter within the district courtís discretion. State v. Volker, 477 N.W.2d 909, 910 (Minn. App. 1991).

Appellant argues that the district court abused its discretion in ruling that the testimony of a medical expert was not necessary to his defense. A defendant must give specific reasons for needing an expert. Id. at 911. A defendant must answer the questions: Why is the expert necessary? How would the expertís testimony aid in appellantís defense? Id. Appellant stated in an affidavit that he required an expert to "testify on his behalf on the issue of his level of intoxication and lack thereof." In support of this motion, appellant argued to the district court:

I am not going to, I guess, at this point divulge the point of what we thought the expert would say. Just that it would be more on the medical lines than on challenging some sort of a test. But I just want to make that clear to the Court that it was different than the usual expert thatís requested in these sorts of cases.

At sentencing, appellant again raised this issue:

[T]he expert would have been able to testify that it was [appellantís] illness that was the reason he acted differently on the videotape than on the witness stand.

Without substantiation, these statements have little impact. Neither appellantís affidavit nor his arguments before the district court meet the Volker requirements. The district court did not abuse its discretion in concluding that expert medical testimony was unnecessary to appellantís defense.

On appeal, appellant argues that he needed a medical expert to explain to the jury that a person can exhibit the common characteristics of intoxication even when the person has not drunk any alcohol for 24 hours. Appellant did not give this explanation to the district court. Therefore, it is not properly before this court. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (party may not raise a different theory on appeal).

2. Helpful to Trier of Fact

An expertís testimony must assist the trier of fact to understand the evidence or to determine a fact in issue. See Minn. R. Evid. 702. Expert testimony must be helpful to the jury and the danger of unfair prejudice must not substantially outweigh its probative value. State v. Danielski, 350 N.W.2d 395, 396 (Minn. 1984). But the district court has "broad discretion in deciding whether testimony by a qualified expert should be received." State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980). A conviction may be reversed only where the district court abused its discretion and this error substantially influenced the jury to convict. State v. Oslund, 469 N.W.2d 489, 495 (Minn. App. 1991) review denied (Minn. July 24, 1991).

Appellant argues that a medical expertís testimony would have been helpful to the jury in determining whether the state met its burden of proving a critical element of driving under the influence. The district court found that an expert would not be helpful because appellant was not challenging a test for intoxication. The charges could be substantiated or refuted with lay witness opinions, including the testimony of the defendant himself. See, e.g., State v. Shepard, 481 N.W.2d 560, 562 (Minn. 1992) (state may obtain a conviction for driving while under the influence even if the driverís blood alcohol concentration is less than .10, provided it shows the driver had drunk enough alcohol so that the driverís ability or capacity to drive was impaired in some way or to some degree). In addition to two police officersí testimony, appellant himself testified that his mind and body were impaired from the effects of alcohol. Accordingly, the court did not abuse its discretion when it concluded that an expert would not help the jury to decide whether appellant was driving under the influence of alcohol.

Affirmed.

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