STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1495

State of Minnesota,
Respondent,

vs.

John Vern Leino,
Appellant.

Filed August 2, 2005

Affirmed in part and reversed in part

Stoneburner, Judge

Carlton County District Court

File No. K3031669

Mike Hatch, Attorney General, Omar A. Syed, Assistant Attorney General, Suite 1800, Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Marvin Ketola, Carlton County Attorney, Room 202, Courthouse, Box 300, Carlton, MN 55718-0300 (for respondent)

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

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

STONEBURNER, Judge

Appellant John Vern Leino challenges his convictions of one count of first-degree driving while impaired, one count of refusal to test, and one count of driving without a valid license, arguing that prosecutorial misconduct affected the verdict, and the state failed to prove one element of driving without a valid license. Appellant also challenges the district court’s failure to depart downward in the DWI sentence. Because any prosecutorial misconduct was not so serious as to require a new trial, we affirm appellant’s conviction of driving while impaired and refusal to test, and we affirm the guideline sentence imposed for DWI. Because the state failed to prove an element of driving after cancellation, we reverse appellant’s conviction of, and concurrent sentence imposed for, driving without a valid license.

FACTS

Carlton County sheriff’s deputies responded to a call about a suspected intoxicated driver in Cromwell. At the scene, the officers were directed to a van that was parked in a traffic lane and were told that the driver had walked toward the municipal bar. The officers arranged for the van to be towed and then inventoried the contents of the van. As they waited for the tow truck, appellant, who matched the description of the van’s driver, walked toward the van from the direction of the Cromwell municipal bar. One officer drove toward appellant to speak to him, but appellant began to walk back toward the bar. As the officer met appellant in the parking lot near the bar, the officer was advised by dispatch that the bar had just reported problems with a man asking for a ride or a jump-start for his van. The officer questioned appellant, who identified himself, said his van had broken down, and that he was trying to get a ride to Tamarack. The officer suspected appellant was intoxicated and had him perform some field sobriety tests. Appellant, who admitted he had been drinking “a little bit,” failed the tests and was arrested for DWI. Appellant was eventually charged with driving while impaired in the first degree, refusal to test, driving without a valid license, and failure to provide insurance. The insurance charge was later dismissed.

Prior to trial, appellant stipulated that he had three prior DWI convictions, that the officer had sufficient basis to request testing, and that he refused to take a test. The parties also stipulated that the jury would not be informed that appellant’s license had been cancelled as inimical to public safety.

At trial, when the prosecutor asked a law-enforcement officer if he had checked to see if appellant’s license had been revoked, the officer replied that he ran the information through dispatch. The prosecutor asked, “[A]nd it came back as revoked?” The officer replied, “[C]ame back cancelled, inimical to public safety.” Appellant’s counsel objected, and the district court stated to the jury: “We show it as revoked.” Appellant did not request any additional corrective instruction or action.

After closing arguments, outside the jury’s presence, appellant’s counsel noted that normally the state would have to produce a certified copy of appellant’s driving record to show that his license was revoked on the relevant day, but he reiterated that the defense stipulated to the revocation because the driving record showed that the license was cancelled as inimical to public safety and they did not want the jury to see that. Appellant agreed with that decision on the record. The district court instructed the jurors that they did not have to decide the third element of the offense of driving without a valid license (that appellant’s license was cancelled at the time he was operating a motor vehicle), because the parties stipulated that appellant’s license was revoked at the relevant time. The jury found appellant guilty of all three charges.

At sentencing, appellant argued that despite a criminal-history score of 11, he had never had a felony DWI before and that all of his felony offenses involved property crimes with convictions in 1995 or earlier. Appellant argued he was a model prisoner and a good candidate for probation because he had learned the trade of cabinet-making and was in the process of establishing a business. The district court declined to depart downward from the sentencing guidelines and imposed the presumptive sentence of 72 months for felony DWI and a concurrent one-year sentence for driving after cancellation. This appeal followed.

D E C I S I O N

I. Prosecutorial misconduct

Appellant first asserts that he is entitled to a new trial because of prosecutorial misconduct in eliciting the information that his license was cancelled as inimical to public safety despite the agreement that this information would not go to the jury.

When assessing prosecutorial misconduct, a reviewing court first examines the challenged conduct to determine whether the prosecutor erred, and if so, whether the conduct was so prejudicial in light of the entire record that the defendant was denied a fair trial. State v. Ford, 539 N.W.2d 214, 228 (Minn. 1995). Serious misconduct is “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error,” and if the misconduct is less serious, the question is “whether the misconduct likely played a substantial part in influencing the jury to convict.” State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000). If it can be said with certainty that any misconduct was found harmless beyond a reasonable doubt, the defendant will not be granted a new trial. State v. Ashby, 567 N.W.2d 21, 27-28 (Minn. 1997).

Appellant argues that the state cannot prove beyond a reasonable doubt that the verdict was unaffected by the officer’s statement that his license was cancelled as inimical to public safety. And appellant argues that even in the absence of prejudice, this court should reverse in the interests of justice. The state argues that because the prosecutor did not intentionally elicit the prohibited response, there was no misconduct, and even if it was misconduct, it was the less-serious type and not prejudicial. The supreme court has stated that “[i]f prosecutors and police officers persist in trying to inject into a trial indirectly matters which they know they cannot introduce directly the only solution is to let them try the case over.” State v. Gegen, 275 Minn. 568, 569, 147 N.W.2d 925, 926 (1967). But, in this case, there is no evidence that the prosecutor was deliberately trying to inject a reference to appellant’s cancellation-as-inimical-to-public-safety status into the record. The prosecutor got an unexpected response to a yes-or-no question as to whether appellant’s license was “revoked.” “[U]nintended responses under unplanned circumstances ordinarily do not require a new trial.” State v. Hagen, 361 N.W.2d 407, 413 (Minn. App. 1985), review denied (Minn. Apr. 18, 1985). We conclude that if there is any misconduct in the prosecutor’s questioning, it is a “less-serious” situation requiring a showing that the misconduct “likely played a substantial part in influencing the jury.” Hunt, 615 N.W.2d at 302. In this case, the evidence supporting appellant’s felony DWI conviction was overwhelming, and we conclude that the single reference to “inimical” which was immediately corrected by the district court could not have played a substantial part in influencing the jury to convict. See State v. Richmond, 298 Minn. 561, 563, 214 N.W.2d 694, 695-96 (1974) (holding that even if prejudicial testimony was improperly presented to the jury, the supreme court would not reverse because evidence of defendant’s guilt was so strong that it was very unlikely that the prejudicial item played a substantial part in convincing the jury to convict). Nor has appellant presented any authority holding that the interests of justice require a reversal in this case based on the prosecutor’s question.

II. Notice of cancellation

Appellant was charged with driving without a valid driver’s license. The statute under which he was charged makes it a gross misdemeanor for a person to drive after driving privileges have been cancelled if“the person has been given notice of or reasonably should know of the cancellation . . . .” Minn. Stat. § 171.24, subd. 5(2) (2002)(emphasis added). Appellant argues that, although he stipulated that his license was cancelled as inimical to public safety at the time of the incident, he did not stipulate that he had received notice of the cancellation, and the state’s failure to prove such notice is fatal to his conviction of driving without a valid license.

One of the essential elements the state has to prove to get a conviction for driving after revocation is that the driver had either been given notice of revocation or reasonably should have known about it.

State v. Larson, 502 N.W.2d 60, 63 (Minn. App. 1993) (footnote omitted), reversed on other grounds,503 N.W.2d 779 (Minn. 1993).

In this case, the district court properly instructed the jury on the four elements of driving after cancellation. The third element is that the defendant’s license was cancelled at the time he was driving, and the fourth element is that the defendant had been given notice of the cancellation. See 10A Minnesota Practice,CRIMJIG 29.36(1999). The district court informed the jury that the parties had stipulated to the third element of the charge, that appellant’s license was cancelled at the time he was operating a motor vehicle. The state failed to obtain a stipulation that appellant had notice of the revocation and failed to produce any evidence of notice. On appeal, the state argues that by stipulating that his license was cancelled at the time of the incident, the jury could reasonably infer that appellant knew or should have known of the cancellation. We disagree. The state has the burden to prove every element of a criminal offense. Because the state failed to produce evidence of notice, we conclude that the state has failed to meet its burden to prove beyond a reasonable doubt every element of the crime of driving without a valid license, and we reverse appellant’s conviction of and sentence for this charge.

III. Sentencing

Appellant argues that the district court erred by not granting his request for a downward dispositional departure from sentencing guidelines. The decision whether to depart from sentencing guidelines rests within the district court’s discretion and will not be reversed absent an abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). The district court must order the presumptive sentence provided in the sentencing guidelines unless “substantial and compelling circumstances” warrant a departure, and only in a rare case will we reverse the district court’s imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Generally, appellate courts will not interfere with a district court’s refusal to depart downward. State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984). We decline to interfere with the district court’s sentencing discretion in this case.

Affirmed in part and reversed in part.

STATE OF MINNESOTA

A04-1495