This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-01-1635

 

State of Minnesota,

Respondent,

 

vs.

 

Tabitha Natasha Adams,

Appellant.

 

Filed July 2, 2002

Affirmed

Poritsky, Judge*

 

Hennepin County District Court

File No. 01041641

 

Jay M. Heffern, Minneapolis City Attorney, Lisa M. Godon, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

 

Robert J. Kolstad, 1830 East 42nd Street, Minneapolis, MN 55407 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge, Anderson, Judge, and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge.

            A jury convicted appellant Tabitha Adams of four traffic offenses: leaving the scene of an accident, careless driving, inattentive driving (speed greater than reasonable and prudent), and unsafe passing on the left.  On appeal, Adams argues that the district court erred by: (1) failing to instruct the jury that if Adams genuinely feared being harmed, she was required by law to leave the scene; (2) failing to dismiss the charge of inattentive driving; (3) excluding the testimony of a defense witness; and (4) failing to give an instruction that the testimony of police officers is not entitled to any greater weight than the testimony of any other witness.  We affirm.

D E C I S I O N

I.

            Adam’s first and fourth arguments concern the court’s failure to give requested jury instructions.  As these arguments both concern jury instructions, we treat them together.  Specifically, Adams argues that the jury should have been given (a) a self-defense instruction — if Adams feared for her safety, she had a duty to retreat, and (b) an instruction that a police officer’s testimony is not entitled to any greater or lesser weight than that of civilian witnesses. 

Although a party has the right to have the trial court instruct the jury on matters relating to the party's theory of law of the case, the court has considerable latitude in determining the language used and need not give the exact instructions requested by the party.  Poppenhagen v. Sornsin Constr. Co., 220 N.W.2d 281, 286 (Minn. 1974).  The refusal to give a requested jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  An appellant who claims the trial court erred bears the burden of showing the error and any resulting prejudice.  State v. Shoop, 441 N.W.2d 475, 480-81 (Minn. 1989). 

A.         Self-defense

A defendant has the “burden of going forward with evidence to support his claim of self-defense.”  State v. Columbus, 258 N.W.2d 122, 123 (Minn. 1977). 

Adam’s argument that the jury should have been given a self-defense instruction is unpersuasive.  It is simply wide of the mark – the doctrine of self-defense has no application to the charge of leaving the scene of an accident.  Self-defense applies only to cases where the defendant is charged with an offense involving the use of force that would otherwise be criminal.  Adams cites Minn. Stat. § 609.06, subd. 1(3)(2000), which embodies the law of self-defense.  The statute reads:

[R]easonable force may be used upon or toward the person of another * * * when the following circumstances exist or the actor reasonable believes them to exist:

When used by any person in resisting  * * * an offense against the person.

 

 Id.  (Emphasis added.)[1]

A charge of leaving the scene of an accident does not contain an allegation that the defendant used force upon another person.  Thus we conclude that the doctrine of self-defense has no application to a charge of leaving the scene of an accident, and the instruction would only confuse the jury.  The trial court did not err in refusing to give such an instruction.

Adams informally requested the judge to instruct the jury that it could acquit Adams if it found that her actions were reasonable.  Adams offers no authority in support of her request, but even if the law recognized reasonableness as an excuse for leaving the scene of an accident, Adams would not be entitled to such an instruction:  She did not make a showing that she was in danger.  She testified that the other driver never attempted to strike her, display a weapon, or lunge at her.  The other driver, a woman, was small and alone; Adams had three teen-age nieces with her.  Adams seeks to justify her behavior with a claim that that the other driver was not showing Adams respect and was not calm.  This is not an excuse for leaving the scene of an accident without exchanging information.  Moreover, Adams never contacted law enforcement; instead, two days after the accident, the police contacted her.  Any claim that she acted reasonably would have to include a showing that as soon as she was clear of any perceived danger, she contacted the police to report the incident.  We hold that the district court did not err by refusing to give any instruction that would allow the jury to consider whether Adams acted reasonably.

B.         Police Officer Testimony

Adams argues that “there can be no doubt of the psychological effect of hearing a police officer [testify] * * *.  Police officer testimony – whether truthful or not – is devastating for a defendant.”  In voir dire, Adams had the opportunity to question prospective jurors about pro-police bias, as the defense attorney did in State v. Logan, 535 N.W.2d 320, 324 (Minn. 1995).  But she did not do so.  Thus, as the record stands there is no showing that this jury had any bias for or against police.  The matter therefore must rest in the discretion of the trial judge, and we conclude that the court did not abuse its discretion in refusing to give the requested instruction.

II.

Adams argues that the charge of inattentive driving, in violation of Minn. Stat. § 169.14, should have been dismissed.  She reasons that the statute applies only to driving on a highway, that a street is not a highway, and that she was not driving on a highway but was on a street.  Thus, she concludes, the statute has not application to her case.

Minn. Stat. § 169.14 states

[n]o person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions.  Every driver is responsible for becoming and remaining aware of the actual and potential hazards then existing on the highway and must use due care in operating a vehicle.

 

In a single definition, Minn. Stat. § 169.01, subd. 29, defines both street and highway as

the entire width between boundary lines of any way or place when any part thereof is open to the use of the public, as a matter of right, for the purposes of vehicular traffic.

 

We hold that because the legislature has defined the terms street and highway interchangeably, Adams’s argument is of no merit.

III.

            Adams argues the district court erred by not allowing a defense witness, Octavia Burks, to testify about out-of-court statements made by Adams.  As part of the prosecution’s case, Minneapolis Police Officer Glampe had testified that he spoke on the telephone with Adams and that during the conversation Adams admitted that there was a collision.  He denied that Adams ever told him there was no collision.  On behalf of Adams, Burks was to testify that when Adams had the telephone conversation with Glampe, she denied she hit the victim’s car.  The court excluded Burks’s testimony on the ground that Adams’s statements were hearsay.  Adams contends those statements were offered to impeach Glampe’s testimony that Adams admitted there had been a collision; thus, she argues, they should not have been excluded as hearsay.

            It appears to us, however, that although Burks’s testimony had a non-hearsay aspect – impeachment of Glampe – such testimony could be used to infer the truth of the matter asserted – that Adams was not involved in a collision.  Where out-of-court statements might be admissible for non-hearsay purposes but also tend to prove a fact at issue in the case, district courts must be extremely careful in admitting such evidence.  State v. Hudson, 281 N.W.2d 870, 873 (Minn. 1979).  Appellate courts generally defer to the trial court’s evidentiary rulings, which will not be overturned absent an abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  The trial court’s decision to exclude impeachment testimony is within its discretion and will not be reversed absent an abuse of discretion.  State v. Gustafson, 379 N.W.2d 81, 84 (Minn. 1985).  Finally, here the trial court noted that Burks could not hear Glampe's side of the conversation.  This meant that the jury would only hear Adams’s statements without the context of the full conversation, which fact, in our view, supports the court’s decision to exclude Burks’s testimony.

            When the court made this ruling, it was not clear if Adams would testify.  Later in the trial, after Adams testified about the telephone conversation with the officer, Burks’s testimony became non-hearsay under Minn. R. Evid. 801 (d)(1)(B), admissible to show an out-of-court statement made by Adams, consistent with her trial testimony.  At that point, the district court took the position that Burks could testify about Adams’s statements, but Burks was never called.  We find the district court’s rulings were well within its discretion.

Affirmed.