State of Minnesota, Respondent, vs. Michael Dean Cramer, Appellant. A04-1389, Court of Appeals Unpublished, July 26, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1389

State of Minnesota,

Respondent,

vs.

Michael Dean Cramer,

Appellant.

Filed July 26, 2005

Affirmed

Lansing, Judge

Stearns County District Court

File No. K8-03-660

Mike Hatch, Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101; and

Janelle P. Kendall, Stearns County Attorney, Lotte R. Hansen, Assistant County Attorney, Rm. 448, 705 Courthouse Square, St. Cloud, MN 56303-4701 (for respondent)

Michael Dean Cramer, 20123 Beaver Lake Road, Kimball, MN 55353 (pro se appellant)

Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

Michael Cramer raises seven issues in this appeal from his conviction and sentence for first-degree refusal to submit to a chemical test. We conclude that the district court did not err in determining that Cramer’s wife consented to police officers entering the residence, Cramer’s right to counsel was vindicated, and the jury’s access to an exhibit that was not admitted into evidence constituted harmless error. We also reject Cramer’s claims that police officers did not have probable cause to arrest him, the prosecutor committed misconduct, the evidence was insufficient to support his conviction, and his counsel was ineffective. We therefore affirm.

F A C T S

In the early morning of February 14, 2003, a driver in Stearns County telephoned 911 to report erratic driving of a white Jeep Cherokee that had turned onto Beaver Lake Road from Highway 15. Police officers responding to the call observed two mailboxes that had been struck down on Beaver Lake Road. Tire tracks led past the mailboxes to Michael Cramer’s residence where, in the driveway, police found a white Jeep Cherokee with a warm engine.

Upon answering the door, Cramer’s wife told the officers that her husband had been driving the Jeep and had recently returned home. The officers told her that they needed to speak with Cramer and that she needed to wake him up. According to her testimony, when she turned toward the inside of the residence, she heard one of the officers say, “We will need to come in,” and she did not stop them. Both officers testified that Cramer’s wife permitted their entry, and one officer testified that Cramer’s wife affirmatively answered, “Sure,” when asked if the officers could enter the residence.

The officers then talked with Cramer who confirmed that he had been driving the Jeep and said that he had been drinking beer after coming home. Both officers observed that Cramer smelled like alcohol, was unsteady while standing, had bloodshot and watery eyes, and spoke with slightly slurred speech. The officers further observed that Cramer could not successfully perform field sobriety tests. The officers arrested Cramer for driving while impaired. After providing Cramer with access to a telephone and telephone directory and reading Cramer the implied-consent advisory, an officer asked Cramer if he would take a breath test, and Cramer refused.

Following a four-day trial, a jury found Cramer guilty of one count of first-degree driving while impaired and one count of first-degree refusal to submit to a chemical test. The district court later vacated the driving-while-impaired conviction after discovering that the jury had been given access to a 911-call transcript that had not been admitted into evidence. Cramer appeals, challenging the (1) determination that his wife consented to police officers entering the residence, (2) determination that probable cause existed to arrest him, (3) determination that his right to counsel was vindicated, (4) prosecutor’s conduct during closing argument, (5) sufficiency of the evidence, (6) jury’s access to the 911-call transcript, and (7) effectiveness of his trial counsel.

D E C I S I O N

When a suppression order is challenged, we 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. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). The question of the constitutionality of a search is subject to de novo review. State v. Olson, 634 N.W.2d 224, 228 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001). But we defer to the district court on credibility assessments, which we will reverse only if we find clear error. State v. Doren, 654 N.W.2d 137, 141 (Minn. App. 2002), review denied (Minn. Feb. 26, 2003).

The right to be free from “unreasonable searches and seizures” is constitutionally guaranteed. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Accordingly, law enforcement must generally obtain a warrant before conducting a search of a person’s residence. See State v. Taylor, 590 N.W.2d 155, 157 (Minn. App. 1999) (observing that searches conducted without prior approval of judge are per se unreasonable), review denied (Minn. May 18, 1999). Voluntary consent is an exception to the warrant requirement. Id. To determine whether consent was voluntary, a court must examine the totality of the circumstances. State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). Consent is voluntary if a “reasonable person would have felt free to decline the officer’s requests or otherwise terminate the encounter.” Id.(quotation omitted). A third party who possesses common authority over a residence may consent to police entry of the dwelling. State v. Licari, 659 N.W.2d 243, 250 (Minn. 2003).

One officer testified that Cramer’s wife affirmatively gave permission to enter the residence. The district court found that Cramer’s wife’s testimony did not credibly rebut the officer’s testimony. See Minn. R. Civ. P. 52.01 (providing that credibility determinations are properly made by fact-finder who observed testimony). The record contains no evidence that she lacked the maturity, education, or intelligence necessary to give effective consent, nor does it indicate that she was under the influence of drugs or alcohol. There is also no objective evidence in the record of undue influence that critically impaired her judgment. See State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999) (holding consent voluntary despite defendant’s intoxication when record contained no evidence that police acted in threatening way). Cramer’s wife was in the familiar surroundings of her home, and she was objectively free to terminate the encounter by saying no and by closing the door. Considering the totality of the circumstances, we conclude that the district court did not err in determining that Cramer’s wife voluntarily consented to the officers’ entry into the residence.

Cramer contends that police officers did not have probable cause to arrest him or to require that he submit to a chemical test. Cramer did not raise this issue in the district court, and we therefore decline to consider it on appeal. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (explaining that appellate courts generally review only issues argued and considered in district court).

Even if we extended review, Cramer’s contention would fail on its merits. The totality of the facts known to the officers at the time of arrest support a finding of probable cause to arrest. Those facts include the 911 call, tire tracks, fallen mailboxes, Cramer’s wife’s statements to police, and Cramer’s behavior when talking to police. See Holm v. Comm’r of Pub. Safety, 416 N.W.2d 473, 475 (Minn. App. 1987) (stating probable cause exists when facts and circumstances would warrant prudent person in officer’s position to conclude person was driving while impaired). Because the officers had probable cause to arrest, they were authorized to require that Cramer submit to a chemical test. See Minn. Stat. § 169A.51, subd. 1 (2002) (stating that chemical test may be required when officer has probable cause to believe person was driving while impaired).

III

Under the Minnesota Constitution, a driver has a limited right to consult with an attorney before deciding whether to submit to chemical testing. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). That right is vindicated if the driver “is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.” Id. (quotation omitted). The court considers the “totality of the facts” in determining if a driver’s right to counsel has been vindicated. Parsons v. Comm’r of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992). The district court’s factual findings are reviewed under a clear-error standard. Gergen v. Comm’r of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). Once the facts are established, their significance constitutes a question of law that we review de novo. Parsons, 488 N.W.2d at 501.

Cramer contends that the district court erred in finding that his right to counsel was vindicated because the implied-consent-advisory form shows that a telephone was made available to Cramer for a brief time, “start[ing]” at 1:42 a.m., “stopp[ing]” at 1:46 a.m., and starting again at 1:58 a.m. At the contested omnibus hearing, a police officer testified that he made a telephone and telephone directory available to Cramer throughout the entire twenty-four-minute period starting at 1:42 a.m. and ending at 2:06 a.m. According to the officer, Cramer immediately attempted to make one or two calls to an attorney and then stopped, telling the officer that he had left a message and was waiting for an attorney to return his call, and then made another call at 1:58 a.m. Telephone access ended at 2:06 a.m.

The district court found the officer’s testimony to be credible, and we defer to that credibility determination. See Minn. R. Civ. P. 52.01 (stating that “due regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses”). Additionally, the totality of the facts indicates that Cramer had a reasonable amount of time to contact an attorney. Cramer had access to a telephone and a directory for twenty-four minutes without interruption, and he made approximately three calls to attorneys. Considering the obvious difficulty in reaching an attorney at 1:45 a.m., the officer reasonably determined that Cramer had enough time after twenty-four minutes had elapsed. See Palme v. Comm’r of Pub. Safety, 541 N.W.2d 340, 345 (Minn. App. 1995) (noting that “driver cannot be permitted to wait indefinitely for a call that may never come”), review denied (Minn. Feb. 27, 1996); Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992) (recognizing attorneys are not readily available at 2:03 a.m. and listing several factors courts consider in determining whether driver had reasonable opportunity to consult with attorney), review denied (Minn. Oct. 20, 1992).

Cramer contends that the prosecutor committed prejudicial misconduct during closing argument. When assessing a claim of prosecutorial misconduct, we first examine the challenged conduct to determine whether the prosecutor erred, and, if error is established, we then determine whether the defendant is entitled to a new trial. State v. Ford, 539 N.W.2d 214, 228 (Minn. 1995). Depending on the gravity of the error, we may review a claim of prosecutorial misconduct even though an appellant failed to object at trial. State v. Ives, 568 N.W.2d 710, 713 (Minn. 1997). We will generally not grant a new trial if the prosecutorial misconduct is harmless beyond a reasonable doubt. State v. Bradford, 618 N.W.2d 782, 798 (Minn. 2000). Misconduct is harmless beyond a reasonable doubt if the jury’s verdict is “surely unattributable to the error.” Id. at 800 (quotation omitted).

Cramer first contends that the prosecutor committed prejudicial misconduct by encouraging a conviction based on reference to a Jeep television commercial. But the contested reference goes to the charge of driving while impaired, which was vacated by the district court. The error, if any, was therefore harmless.

Second, Cramer contends that the prosecutor misstated testimony by stating that “[t]hey [police] have an admission to driving” and that “[t]hey [police] have an admission to drinking.” These statements were made in the context of discussing whether police had probable cause to arrest Cramer and therefore to request a chemical test. According to the trial transcript, one officer testified that Cramer told him that he had been driving the Jeep and that he had been drinking beer after returning home. Because a proper closing argument focuses on the evidence and reasonable inferences drawn from the evidence, State v. DeWald, 463 N.W.2d 741, 744 (Minn. 1990), the prosecutor’s statements do not amount to error.

Third, Cramer contends that the prosecutor misstated testimony by saying that the 911 caller provided very good detail, including a description of the Jeep as a mid-1990’s model. This statement was also made in the context of discussing whether police had probable cause to arrest. As Cramer contends, this statement was not an accurate account of the evidence; the officers testified to the 911 caller describing a white Jeep Cherokee, but not that the Jeep was a mid-1990’s model. Even so, given Cramer’s failure to object, and the district court’s instruction to disregard any statement by the attorneys that differs from the jury’s recollection of the evidence, the error is harmless.

Fourth, Cramer contends that the prosecutor misstated the burden of proof. In discussing whether police had probable cause to arrest Cramer, the prosecutor used the language “more probable than not” to describe what probable cause means. Probable cause, in the context of driving while impaired, means that it was more likely than not that the defendant drove, operated, or was in physical control of a motor vehicle while under the influence of alcohol. State v. Johnson, 672 N.W.2d 235, 242 (Minn. App. 2003), review denied (Minn. Mar. 16, 2004). The prosecutor’s use of the words “more probable than not” does not constitute error.

Finally, in his fifth challenge, Cramer argues that the prosecutor improperly inflamed the passions of the jury by stating that “sometimes we don’t catch them before they get home” and “this is as good as it gets when you don’t catch them driving.” Because the evidence at trial established that police officers did not witness Cramer driving the Jeep but found him after he had returned home, the prosecutor’s statements, to the extent they refer to Cramer, do not amount to error. And, even if they do amount to error, these statements were made sporadically throughout the prosecutor’s closing argument and Cramer consistently did not object. We conclude that any error was harmless.

Cramer next contends that the evidence was insufficient to support the jury’s verdict. When sufficiency of the evidence is challenged, we examine the evidence as a whole to determine whether it was sufficient to support the conviction. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). Our review consists of a very thorough analysis of the record to determine whether the evidence, viewed in a light most favorable to the jury’s verdict, was sufficient to permit the jury to reach its verdict. Id. Because the jury’s verdict on the charge of first-degree driving while impaired was vacated, we need only consider whether there was sufficient evidence to support the test-refusal conviction.

The elements of refusal to submit to testing include (1) probable cause to arrest for driving while impaired, (2) a request by a police officer to submit to a chemical test, and (3) refusal to submit to the requested chemical test. 10A Minnesota Practice, CRIMJIG 29.28 (1999); see Minn. Stat. §§ 169A.20, subd. 2 (2002) (stating that refusal to submit to test is crime), .52, subd. 3 (2002) (providing necessary elements for refusal to submit to test).

The record supports the determination that police had probable cause to arrest Cramer and therefore to require a chemical test. At trial, a police officer testified that after reading Cramer the implied-consent advisory the officer asked Cramer, “Will you take the breath test?” He then testified that Cramer responded, “No, I will not,” and Cramer testified to saying “[s]omething to that effect.” Considering this record, the evidence was sufficient to permit the jury to convict Cramer of refusing to submit to a chemical test.

During jury deliberations the district court learned that a transcript of the 911 call had been provided to the jury even though the transcript had not been submitted into evidence. According to the district court, the court asked the jury how it came to its verdict, and the jury explained that they used the 911-call transcript to establish a timeline to ascertain whether Cramer could have committed the alleged crime of driving while impaired. The district court then vacated the driving-while-impaired conviction. Cramer contends that the district court erred in concluding that the 911-call transcript did not substantially affect the jury’s verdict on the test-refusal conviction.

Even though the jury’s use of the 911-call transcript amounts to error, the error is harmless if there is no reasonable possibility that the wrongfully admitted evidence significantly affected the verdict. State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). To determine whether an error is harmless, the inquiry is not whether the jury could have convicted the defendant without the error, but rather what effect the error had on the jury’s verdict, and more specifically, whether the jury’s verdict is surely unattributable to the error. State v. King, 622 N.W.2d 800, 811 (Minn. 2001).

Officers testified at trial to what they knew about the 911 call at the time of arresting Cramer. The totality of the facts known to police at the time of Cramer’s arrest, including what the officers knew about the 911 call, support a finding on the first element of the test-refusal charge—probable cause to arrest. The transcript of the 911 call did not supply the jury with any information on probable cause that police did not otherwise testify to at trial. And the jury heard Cramer’s uncontested testimony that he refused a police officer’s request to submit to a chemical test, satisfying the second and third elements of the offense. Given that the 911-call transcript was merely cumulative to trial testimony on the elements of the test-refusal charge, we conclude that the jury’s verdict was surely unattributable to the error.

VII

Finally, Cramer contends that he did not receive effective assistance of counsel because counsel did not properly plead the defense of postdriving medication use and failed to object to photographs not disclosed prior to the contested omnibus hearing. Minnesota has adopted the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), for determining whether grounds exist to grant a new trial based on ineffective assistance of counsel. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). The defendant must first prove that “his counsel’s performance ‘fell below an objective standard of reasonableness.’” Id. (quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2064). The defendant must also prove “his counsel’s error . . . so prejudiced the defendant at trial that a different outcome would have resulted but for the error.” Id.

Contrary to Cramer’s contention, the trial transcript demonstrates that defense counsel did argue the defense of postdriving medication use and put forward testimony supporting that defense. The contested omnibus hearing transcript demonstrates that defense counsel participated in significant discussion with the district court on the photographs and agreed to the court’s instructions that the parties would confer out of court on the issue. Additionally, Cramer’s arguments of ineffective assistance of counsel go to the vacated conviction for driving while impaired. We therefore find no basis for Cramer’s ineffective-assistance-of-counsel claim.

Affirmed.