This opinion will be unpublished and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

A05-1796

 

 

State of Minnesota,

Respondent,

 

vs.

 

Ronald Vincent Johnson,

Appellant.

 

 

Filed December 12, 2006

Affirmed

Halbrooks, Judge

 

 

Mille Lacs County District Court

File No. 48-K2-04-000935

 

 

Mike Hatch, Attorney General, Kimberly Parker, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Janice S. Kolb, Mille Lacs County Attorney, Courthouse Square, 525 Second Street Southeast, Milaca, MN 56353 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence Hammerling, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414  (for appellant)

 

 

            Considered and decided by Wright, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Ronald V. Johnson challenges his convictions of (1) first-degree DWI in violation of Minn. Stat. §§ 169A.20, subd. 1(1), .24 (2004); (2) test refusal in violation of Minn. Stat. §§ 169A.20, subd. 2, .24 (2004); (3) driving after cancellation in violation of Minn. Stat. § 171.24, subd. 5 (2004); (4) unlawful speed in violation of Minn. Stat. § 169.14, subd. 2 (2004); and (5) criminal damage to property in violation of Minn. Stat. § 609.595, subd. 3 (2004), arguing that (a) his right to counsel during the implied-consent process was violated; (b) the district court abused its discretion when it excluded the testimony of certain defense witnesses; (c) the evidence was insufficient to support his convictions; and (d) the tribal police department lacked authority to make an arrest off of the Mille Lacs Reservation.  We affirm. 

FACTS

On the evening of August 4, 2004, the Mille Lacs County dispatch was contacted by an anonymous caller who reported a possible drunk driver traveling south on Highway 169.  The caller provided the dispatcher with appellant’s vehicle license number and a description of the vehicle.  A short time later, Crow Wing County dispatch received a call from Larry Berg.  Berg testified that he was at his camper in Crow Wing County, near Pine Center Tire, when he observed appellant’s vehicle parked nearby.  Berg saw that appellant had a dog with him and was concerned that the dog might injure other animals on the property.  Berg asked appellant to put the dog back in the car.  Berg later testified that appellant “slurred some words,” was swearing, and eventually walked away but that appellant was “staggering a little bit . . . like normal people . . . when they are drinking.”  Appellant urinated by the car before getting back into the car.  Berg also testified that appellant “spun the wheels” as he drove away.  Berg called 911 and reported that “two Native Americans” with a pit bull in a Ford LTD were “drunk” and had been “staggering” and “messing around” behind Pine Center Tire. 

Berg stated that the same vehicle returned a few minutes later.  The vehicle was “[d]riving fast, spinning tires, [and] going between the two buildings really fast.”  Alexander Smude (“Butch”), the owner of Pine Center Tire, also saw the vehicle return for a second time.  Smude asked appellant and the passenger whether they were looking for someone or if he could help them.  But Smude testified that “it was just like whoever was in the vehicle was in a daze or really didn’t know what was going on, and then it—the car took off.”  Smude, a first responder for seven years, testified that he believed that the occupants were drunk or on drugs.  When Berg called dispatch a second time, he was joined on the phone by Smude.  Smude gave the dispatcher a description of the vehicle and identified the license-plate number. 

Dispatch contacted Officer Jason Rice of the Mille Lacs County Tribal Police Department and gave Officer Rice a description of the car and the license number and informed him that the vehicle contained “an intoxicated driver with two Native American males and a pit bull.”  While at a stop sign, Officer Rice observed an older LTD with two Native Americans and a dog drive by.  Officer Rice testified that “It was obvious that the suspect vehicle was maintaining a high rate of speed” and that he “had to accelerate hard to catch up to the vehicle.”  Officer Rice estimated that the vehicle was traveling approximately 80 miles per hour in a 55-mile-per-hour zone and around 70 miles per hour in a 40-mile-per-hour zone.  Officer Rice also stated that the vehicle crossed the center line several times.  Based on his training and experience, Officer Rice believed that the driver was potentially under the influence. 

Officer Rice followed the vehicle until it pulled over onto the shoulder of the highway.  Officer Rice pulled in behind the vehicle and activated his emergency lights.  Officer Rice approached the vehicle and asked appellant for his driver’s license, which appellant was unable to produce.  Officer Rice later testified that appellant had “slow reactions, slow speech, bloodshot watery eyes, and a strong odor of an alcoholic beverage.”  Based on his observations, Officer Rice believed that appellant was under the influence.  When Officer Rice asked appellant if he had been drinking, appellant said, “No.” 

Officer Rice asked appellant to step out of the vehicle to perform field sobriety tests.  When Officer Rice asked appellant if he had any physical impairments that would impair his ability to perform the tests, appellant responded that he had a head injury.[1]  Officer Rice did not ask appellant whether his head injury affected his speech or balance.  Appellant refused Officer Rice’s requests to perform the field sobriety tests and to submit to a preliminary breath test (PBT).    

Upon learning that appellant’s license was canceled, Officer Rice placed appellant under arrest.  Because Officer Rice had a canine partner and the dog was in the squad car behind a glass barrier, the officer handcuffed appellant, put shackles on his legs, and placed appellant in the front seat of the vehicle.  In response to appellant’s passenger’s comment that the pit bull in appellant’s vehicle was a “biter,” Officer Rice called a community-service officer to remove appellant’s dog before towing appellant’s vehicle.      

Appellant became “agitated” and started kicking the inside of Officer Rice’s vehicle.  Officer Rice told appellant to stop and drew his stun gun.  When Officer Patrick Broberg arrived, he observed Officer Rice standing by his car with his taser out, telling appellant to “stop kicking.”  Officer Broberg testified that appellant was belligerent, swearing, and kicking.  Officer Broberg told appellant to calm down.  As a result of his kicking, appellant broke off Officer Rice’s shift lever, rendering the squad car inoperable.  Officer Broberg then took appellant out of Officer Rice’s vehicle, placed appellant on the ground, and told him to relax.  Officer Broberg testified that when he opened the door to remove appellant from the vehicle he smelled a “strong odor of alcohol.”    

            Appellant was transferred to the back seat of Officer Broberg’s vehicle.  Appellant sat on the rear seat but refused to place his feet inside the car.  Officer Rice advised appellant to put his feet in the vehicle or he would “taser him.”  When appellant refused to place his feet inside the vehicle, Officer Rice used his taser on him. 

Appellant was transported to the Mille Lacs Tribal Police Department.  En route, appellant vomited in Officer Broberg’s squad car and had “dry heaves.”  Appellant also spat on the partition and rear passenger window of the vehicle.  Based on his training and experience, Officer Broberg believed that appellant was intoxicated at the time of his arrest.  Officer Broberg testified that his conclusion was based on appellant’s “smell of liquor, the spitting and being uncooperative [and] verbally assaulting us.” 

            At 7:22 p.m., Officer Rice read the implied-consent advisory to appellant at the Mille Lacs Police Department.  Officer Rice asked appellant if he understood everything that he had explained to him, and appellant responded affirmatively.  Officer Rice then asked appellant if he wanted to consult with an attorney.  When appellant responded affirmatively, Officer Rice gave him a telephone and phone books.  To place a long distance call at the police station, it was necessary to first dial 9, then 1, then the area code and number, and, finally, a five-digit code.  Officer Rice offered a pen and piece of paper to appellant so that he could write the sequence of numbers down and also offered to dial the telephone number for appellant.  But Officer Rice testified that after repeated instruction, appellant could not figure out how to use the phone and never contacted an attorney.  At one point, Officer Rice gestured to Officer Broberg by spinning his finger near his temple.  Officer Rice testified that he made this gesture because appellant “couldn’t figure out how to use the telephone.”  

According to Officer Rice, appellant appeared hostile and agitated while trying to call an attorney.  Officer Rice also testified that, on a couple of occasions, appellant acted like he was going to throw the phone at him.  Appellant said, “I’ll f-ckin’ throw this f‑ckin’ phone around your neck . . . you think I won’t?”  Appellant also acted like he was going to stab Officer Rice with the pen he had been given.  Officer Rice testified that he initially felt threatened by appellant’s behavior and backed away from the table.  In all, appellant was given a total of 23 minutes to contact an attorney. 

Officer Rice then asked appellant to take a breath test.  Appellant first said “No,” but then changed his mind.  But once the Intoxilyzer was ready, appellant refused to take the test, saying “I ain’t doing f‑cking nothing.  I ain’t doing sh-t.”  Appellant again told Officer Rice that he wanted to consult with an attorney.  Officer Rice told appellant that his time to do so was over.  Appellant then sat back down at the table and acted like he was going to make more calls.  After denying appellant the opportunity to resume searching for an attorney, Officer Rice released appellant to Officer Broberg for transport to the hospital so that appellant could be examined, given his statement about his head injury and the fact that the officer had used a taser gun on him.  The testimony at trial was that appellant was examined and released.

Appellant was charged in Mille Lacs County District Court with five counts, including: (1) first-degree DWI in violation of Minn. Stat. §§ 169A.20, subd. 1(1), .24 (2004); (2) test refusal in violation of Minn. Stat. §§ 169A.20, subd. 2, .24 (2004); (3) driving after cancellation in violation of Minn. Stat. § 171.24, subd. 5 (2004); (4) unlawful speed in violation of Minn. Stat. § 169.14, subd. 2 (2004); and (5) criminal damage to property in violation of Minn. Stat. § 609.595, subd. 3 (2004).  A jury found him guilty on all counts, but appellant was sentenced only for the DWI violation.  This appeal follows.

D E C I S I O N

I.

            Appellant argues that he was not afforded a reasonable opportunity in the implied-consent process to exercise his right to consult with counsel.  Under the Minnesota Constitution, a driver has a limited right to consult with an attorney before deciding whether to submit to chemical testing.  Minn. Const. art. I, § 6; Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991); see also Minn. Stat. § 169A.51, subd. 2(4) (2005) (stating “[a]t the time a test is requested, the person must be informed . . . that the person has the right to consult with an attorney, but that this right is limited to the extent that it cannot unreasonably delay administration of the test.”).  “A limited right to counsel means ‘the right to consult with a lawyer of [the driver’s] own choosing.’”  State v. Collins, 655 N.W.2d 652, 656 (Minn. App. 2003).  “A police officer not only must inform the driver of the right to counsel but also must assist in vindicating this right.”  Id.  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.”  Friedman, 473 N.W.2d at 835.  The officer need not ensure that the driver actually contact a lawyer, especially if the driver elects to stop making calls.  McNaughton v. Comm’r of Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995).  “If counsel cannot be contacted within a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel.”  Friedman, 473 N.W.2d at 835. 

The determination of whether an officer has vindicated a driver’s right to counsel is a mixed question of law and fact.  Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).  Clear-error analysis applies to the district court’s findings on the issue of whether a driver has made a good-faith effort to contact an attorney.  Gergen v. Comm’r of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).  “Whether one has refused testing [for the presence of alcohol] is a question of fact.”  Busch v. Comm’r of Pub. Safety, 614 N.W.2d 256, 258 (Minn. App. 2000).  Once the facts are established, this court makes a legal determination as to whether the defendant “was accorded a reasonable opportunity to consult with counsel based on the given facts.”  Kuhn, 488 N.W.2d at 840.  On undisputed facts, this court considers de novo whether a defendant’s right to counsel was violated.  State v. Christiansen, 515 N.W.2d 110, 112 (Minn. App. 1994), review denied (Minn. June 15, 1994). 

Appellant contends that his right to counsel was not vindicated because the officers provided him with a telephone that required a “complicated” dialing-out sequence, engaged in “provocative” and “demeaning” conduct, and refused to let him use a toilet.  We conclude that appellant was given a reasonable opportunity to consult with a lawyer of his own choosing.  Appellant was informed by Officer Rice that he had a right to counsel, and appellant indicated that he understood his right.  Appellant was provided with a telephone and phone books, and the officers explained several times to appellant the process for dialing out of the police station.  Appellant had a pen and paper to write down phone numbers, and Officer Rice even offered to assist appellant by dialing phone numbers for him.  The record indicates that appellant was given 23 minutes to contact counsel, a reasonable amount of time in this case. 

Although we conclude that appellant’s right to counsel was vindicated, respondent’s alternative argument that appellant’s behavior frustrated the implied-consent process and amounted to a retraction of appellant’s right to contact an attorney warrants discussion.  A driver’s conduct may be deemed to frustrate an officer’s reasonable attempt to assist in the vindication of this limited right.  Busch, 614 N.W.2d at 260.  A refusal need not be indicated by express language, but can be indicated by conduct.  State Dep’t of Highways v. Lauseng, 289 Minn. 344, 345, 183 N.W.2d 926, 927 (1971).  Behavior aimed at frustrating the implied-consent process may constitute a retraction of the original request for an attorney.  State v. Collins, 655 N.W.2d 652, 658 (Minn. App. 2003), review denied (Minn. Mar. 26, 2003); Busch, 614 N.W.2d at 259-60. 

In Collins, defendant was convicted of misdemeanor DWI, refusal to submit to testing, disorderly conduct, and obstructing legal process.  655 N.W.2d at 655.  Defendant appealed, arguing that because she was never able to consult with an attorney, despite three requests to have her attorney present, “her right to counsel was violated and her conviction for test refusal should be reversed.”  Id. at 655, 656.  On appeal, this court held, in relevant part, that the defendant’s right to counsel under the implied-consent statute was not violated and that her conviction for test refusal was proper.  Id. at 658.  We noted that as the officer attempted to read the implied-consent advisory, defendant “began screaming, swearing, making accusations of rape, and insisting that she would not listen.”  Id.  This court concluded that defendant’s “conduct frustrated the implied-consent procedure and amounted to a retraction of [defendant’s] request to contact an attorney.”  Id.

In Busch, defendant filed a petition challenging the district court’s decision to sustain the revocation of his driver’s license under the implied-consent law based on his refusal to submit to testing for alcohol.  614 N.W.2d at 257.  Defendant argued that his right to counsel was not vindicated, and thus his refusal to test was reasonable.  Id. at 258.  This court affirmed the decision of the district court, holding that the driver’s conduct and behavior subsequent to his request for an attorney and during the reading of the implied-consent advisory “frustrated the implied consent process and constituted a retraction of his request for an attorney and a refusal to test.”  Id. at 260.  This court specifically noted that the defendant frustrated the officer’s attempts “by refusing to respond to his questions, by rolling his head away while [the officer] read the advisory, and by telling [the officer] that he wanted to make things difficult for the officer and that the officer would pay for this.”  Id. at 259.    

Here, the jury saw the videotape from the police station.  While appellant concedes that his “behavior was wrong,” he argues that “his conduct does not fall into the class of cases reflected by Collins and Busch.”  We disagree.  Appellant was hostile and belligerent toward Officer Rice during the implied-consent process.  Appellant grabbed the telephone base as if he were going to throw it at Officer Rice.  At one point appellant lunged at Officer Rice with a pen as though he was going to stab him.  The district court found that “[t]he videotape . . . showed defendant’s belligerent behavior along with obvious signs of his intoxication.  Defendant mocked and threatened the officer at various stages of the 23-minute proceeding.”  These findings are not clearly erroneous.  Therefore, even if appellant’s right to counsel was not vindicated, we conclude that appellant’s behavior frustrated the implied-consent process so as to constitute a retraction of his right to speak with an attorney.

II.

            Appellant contends that the district court abused its discretion by excluding testimony from two witnesses with “firsthand knowledge of the effects upon appellant’s behavior and demeanor of suffering a head injury several days prior to his arrest.”  “A criminal defendant has the right to a meaningful opportunity to present a complete defense.”  State v. Penkaty, 708 N.W.2d 185, 201 (Minn. 2006); see also U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 7.  This right includes the opportunity to present the defendant’s version of the facts through witness testimony.  Penkaty, 708 N.W.2d at 201; see also State v. Quick, 659 N.W.2d 701, 713 (Minn. 2003) (stating adefendant has an opportunity to develop his version of the facts through witness testimony so that the jury may decide where the truth lies).  But a defendant still “‘must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilty and innocence.’”  Quick, 659 N.W.2d at 713 (quotation omitted).  Therefore, even in cases where the defendant claims that “his constitutional rights have been violated, evidentiary questions are reviewed for abuse of discretion and any error is subject to harmless error analysis.”  Id.; see also Penkaty, 708 N.W.2d at 201 (noting the appellate courts review evidentiary rulings under an abuse-of-discretion standard when it is claimed that the exclusion of evidence violated the defendant’s constitutional right to present a complete defense).   

            A portion of appellant’s defense to the DWI charge was that his demeanor and behavior at the time of his arrest were not a result of appellant’s intoxication, but rather due to his recent head injury.  In support of this theory, appellant attempted to call two witnesses, his cousins, to testify about appellant’s behavior both before and after the assault that resulted in appellant’s head injury.  In addition, the witnesses would have testified that appellant’s behavior and demeanor on the video tape from the police station were consistent with his post-head-injury behavior.  The state objected to the testimony, arguing that such testimony would be inadmissible because the proffered witnesses had no medical training and did not observe appellant on the date of the incident.

After taking the matter under advisement, the district court granted the state’s motion barring this testimony.  The court stated:

I am certainly mindful of your client’s rights to present an adequate defense, Mr. O’Malley, and lay witnesses are permitted where an adequate foundation, including personal knowledge, rational basis and helpful to the trier of fact has been laid.  Lay witnesses can give opinion testimony as to intoxication, but pursuant to State vs. Schneider, that is found at 249 N.W.2d 720, Minnesota Supreme Court case of 1977, such opinions may be offered by one who has had the opportunity to observe the person’s appearance, breath, manner of walking or standing, and manner of speech.

 

The differentiation I see from the testimony of the State’s witnesses was that those witnesses testified as to what they saw and heard on August 4th of 2004.

 

The Defense proposed witnesses, as I understand it, would testify as to [appellant’s] behavior prior to his assault and their observations of his appearance on the videotape, which I do not find to be helpful to the trier of fact or provide a rational basis.

 

The district court appears to have denied the defense testimony under Minn. R. Evid. 701, which provides:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinion or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

 

The crux of appellant’s argument is that the district court abused its discretion when it applied rule 701 because rule 701 applies only to opinion testimony, not the testimony at issue here.  Caselaw permits lay-witness opinion testimony on intoxication, or lack thereof, only when the witness has personally observed indicia of intoxication.  For example, in Trail v. Village of Elk River, 286 Minn. 380, 390-91, 175 N.W.2d 916, 922 (1970), the Minnesota Supreme Court stated “[i]t is an exception to the opinion rule that nonexperts can give their opinion concerning another’s intoxication.”  But, “[t]he foundation for such opinion is observation of the allegedly intoxicated party’s appearance, breath, manner of walking or standing, and manner of speech.”  Trail, 286 Minn. at 391, 175 N.W.2d at 922.  Although appellant argues that the witnesses observed appellant both before and after the head injury, appellant’s witnesses did not personally observe appellant on August 4, and as a result, proper foundation cannot be laid for their testimony.  Therefore, we conclude that it was not an abuse of discretion for the district court to decide that this testimony would not be helpful to the trier of fact or provide a rational basis pursuant to rule 701.

But even if the district court’s exclusion of the testimony of defense witnesses was in error, this court will not reverse a district court’s decision if the error was harmless beyond a reasonable doubt.  Quick, 659 N.W.2d at 716.  Harmless-error analysis applies to the erroneous exclusion of defense evidence in violation of the defendant’s right to present evidence.  State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).  Appellant “has the burden of showing the error and any resulting prejudice.”  Quick, 659 N.W.2d at 716.  If the district court has erred in excluding defense evidence, the error is harmless only if this court is “satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury) would have reached the same verdict.”  Id. (footnote omitted).  But if “there is a reasonable possibility that the verdict might have been different if the evidence had been admitted,” the error is prejudicial.  Id.  In completing a “harmless error impact” analysis, 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) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)).

            Even if the district court improperly excluded the testimony of appellant’s two witnesses here, we conclude that the admission of the excluded testimony would not have changed the jury’s verdict.  First, appellant testified at trial and offered the jury the same information that appellant’s witnesses intended to testify about—that his behavior on August 4 was attributable to his head injury rather than intoxication.  Thus, the jury still had an opportunity to evaluate appellant’s theory of the case. 

Second, while appellant denied consuming any alcohol on August 4, the evidence overwhelmingly indicated that he was in fact intoxicated.  Multiple witnesses who personally observed appellant on August 4 all believed that he was intoxicated.  Larry Berg testified that he thought appellant was intoxicated because he was driving in a reckless manner, slurred his words, staggered around like a drunk person, and urinated near his car.  Alexander Smude, a first responder for seven years, testified that he believed appellant to be intoxicated based on his dazed look and erratic driving.  Officer Rice testified that, based on his background and expertise, he believed appellant to be intoxicated because of appellant’s physical appearance and personal characteristics.  Officer Broberg also believed appellant to be intoxicated because appellant smelled of liquor and was uncooperative.  Finally, the anonymous 911 caller also indicated that appellant was driving as if he were drunk.  In total, these witnesses testified that, at one time or another on August 4, appellant exhibited the following characteristics of intoxication: slow reactions, staggering, slow and slurred speech, dazed condition, bloodshot and watery eyes, strong odor of alcohol, erratic and illegal driving, violent and belligerent behavior, swearing, refusing to take a breath or field sobriety tests, vomiting, dry heaves, and spitting and kicking in the squad cars. 

III.

            Appellant argues that the evidence presented by the state was insufficient to support his conviction.  In considering a claim of insufficient evidence, this court’s review “is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient” to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).    

            Appellant does not specifically articulate which of his convictions he is challenging as being supported by insufficient evidence.  Nonetheless, we conclude that the evidence was sufficient to sustain all of appellant’s convictions.    

A.         First-degree DWI

Appellant was convicted of first-degree DWI in violation of Minn. Stat. §§ 169A.20, subd. 1(1), .24 (2004).  At the time Officer Rice pulled appellant over, dispatch had already received phone calls identifying appellant as a suspected drunk driver.  Officer Rice testified that appellant was speeding and swerving across the center line before appellant pulled over.  Further, several witnesses testified that appellant exhibited indicia of intoxication.  In addition, the jurors viewed for themselves the videotape of appellant at the police station.  When viewed in the light most favorable to the conviction, this evidence is sufficient to support appellant’s DWI conviction.     

B.         Test Refusal

Appellant was convicted of test refusal in violation of Minn. Stat. §§ 169A.20, subd. 2, .24 (2004).  While appellant was unsuccessful in contacting an attorney, he was given a reasonable opportunity to contact an attorney at the police station.  Although appellant initially agreed to submit to an Intoxilyzer test, he later refused after the machine was prepared for testing.  Much of his conduct at the police station was belligerent toward the officers.  This evidence, when viewed in the light most favorable to the conviction, is sufficient to have allowed the jurors to convict appellant of test refusal.

C.        Driving After Cancellation of License

Appellant was convicted of driving after cancellation in violation of Minn. Stat. § 171.24, subd. 5 (2004).  Appellant admitted to improperly driving after his license was cancelled, and thus the evidence was sufficient. 

D.        Speeding

Appellant was convicted of speeding in violation of Minn. Stat. § 169.14, subd. 2 (2004).  Officer Rice testified that, upon first glance, “[i]t was obvious that [appellant] was maintaining a high rate of speed.”  Officer Rice also stated that he “had to accelerate hard to catch up to [appellant’s] vehicle.”  Based on his practice of “pacing,” Officer Rice stated that appellant was traveling approximately 80 miles per hour in a 55-mile-per-hour zone, and around 70 miles per hour in a 40-mile-per-hour zone.  This evidence, when viewed in the light most favorable to the conviction, is sufficient to have allowed the jurors to convict appellant of unlawful speed.

E.         Criminal Damage to Property

Finally, appellant was convicted of criminal damage to property in violation of Minn. Stat. § 609.595, subd. 3 (2004).  Officer Rice testified that appellant kicked the inside of his squad car and appellant admitted that he kicked the shift lever in the squad car, rendering the vehicle inoperable.  Therefore, the evidence is sufficient to support appellant’s conviction of criminal damage to property.  

IV.

            In his pro se brief, appellant challenges the statutory authority of the tribal police department to arrest outside of the Mille Lacs Reservation.  This argument was made by appellant’s counsel at the omnibus hearing and rejected by the district court.  Minn. Stat. § 626.90, subd. 2(c) (2004), provides that

[t]he band shall have concurrent jurisdictional authority under this section with the Mille Lacs County Sheriff’s Department only if the requirements of paragraph (a) are met and under the following circumstances:

(1) over all persons in the geographical boundaries of the property held by the United States in trust for the Mille Lacs Band or the Minnesota Chippewa tribe;

(2) over all Minnesota Chippewa tribal members within the boundaries of the Treaty of February 22, 1855 . . . ; and

(3) concurrent jurisdiction over any person who commits or attempts to commit a crime in the presence of an appointed band peace officer within the boundaries of the Treaty of February 22, 1855 . . . .   

 

The mutual aid agreement between the Mille Lacs Band of Chippewa Indians and the Mille Lacs County sheriff’s department recognizes that the geographical authority of the band law-enforcement agency is governed by Minn. Stat. § 626.90, subd. 2(c), and further states that the agreement is “specifically limited to the lands listed in Appendix A attached hereto.”  But Appendix A was not attached to the documents submitted and is not a part of the record.  Nonetheless, the district court determined that “[t]he geographical definition of the trust property does not limit the authority of the tribal police department to that area,” because “[t]o imply that interpretation would defeat the purpose of a mutual aid agreement.”  Thus, the district court concluded that Officer Rice had the ability, pursuant to the mutual-aid agreement between the band and the Mille Lacs County sheriff adopted under section 626.90, to respond to a call from dispatch and arrest appellant outside of the Mille Lacs Reservation.      

In his supplemental pro se brief, appellant again asserts that Officer Rice had no jurisdiction to arrest him outside of the reservation.  But appellant does not provide any applicable legal authority in support of his position.  Further, the record does not include all relevant documents, including Appendix A to the mutual-aid agreement, and, thus, is not amenable to a determination on the matter.  See Truesdale v. Friedman, 267 Minn. 402, 404, 127 N.W.2d 277, 279 (1964) (stating “the party seeking review has the duty to see that the appellate court is presented with a record which is sufficient to show the alleged errors”).  Therefore, we are unable to adequately address the issue of whether Officer Rice had the ability, pursuant to the mutual-aid agreement and Minn. Stat. § 626.90, subd. 2(c), to arrest appellant outside of the Mille Lacs Reservation. 

V.

            Appellant makes a number of additional arguments in his pro se brief, including: (1) the anonymous 911 call made to Mille Lacs dispatch was unreliable; (2) the lack of documentation of the 911 call between Mille Lacs County and Crow Wing County dispatch violates appellant’s right to due process; (3) the stop by Officer Rice was illegal; and (4) Officers Rice and Broberg committed misconduct. 

            On appeal, this court generally considers only those issues presented to and considered by the district court.  Thiele v. Stitch, 425 N.W.2d 580, 582 (Minn. 1988).  Because these arguments were not raised by appellant before the district court, we will not consider them on appeal.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  

            Affirmed.