Michael T. Norton, Acting Minneapolis City Attorney, Timothy T. Mulrooney, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Respondent)

Stevan S. Yasgur, 7600 Parklawn Avenue, #410, Edina, MN 55435 (for Appellant)

Considered and decided by Norton, Presiding Judge, Kalitowski, Judge, and Davies, Judge.

Appellant John Hall challenges his conviction for driving under the influence of alcohol. Hall claims the trial court erred in: (1) instructing the jury; (2) admitting statements as nonhearsay; and (3) denying a request for a continuance. We affirm.

CRIMJIG 29.02 (1994) includes a statement that reads:

If a person consumes an alcoholic beverage and is not thereby influenced in the operation of his or her vehicle, there is no violation of the statute.

During closing argument, Hall's counsel was interrupted by the court after he tried to argue to the jury that the above-quoted statement meant:

If a person consumes alcohol and his operation of a vehicle is not affected thereby, there is no violation of the statute.

Although the court initially gave CRIMJIG 29.02 in its entirety, to avoid confusing the jury, the court omitted the above-quoted statement in CRIMJIG 29.02 from the jury instructions. Hall claims this was reversible error. We disagree.

To be convicted of driving under the influence of alcohol, Minnesota law requires the state to prove the defendant was driving, operating, or in physical control of a motor vehicle while he or she is, among other things, "under the influence of alcohol." Minn. Stat. § 169.121, subd. 1(a) (1996). The jury instructions that were given, viewed in their entirety, fairly and adequately explained the law to the jury. Accordingly, the trial court did not commit reversible error in its jury instructions.

The trial court admitted as nonhearsay the police officer's account of a citizen's statements regarding Hall's driving. The statements were admitted, according to the court, not to prove that Hall was driving erratically, but rather, to prove that the police had a reason to stop Hall. Hall argues that the trial court erred because the probative value of the citizen's statements is outweighed by the danger of unfair prejudice.

The Rules of Evidence allow relevant evidence to be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Minn. R. Evid. 403. Here, the danger that the jury will consider a citizen's tip as evidence of the crime rather than a basis for a stop is great. In addition, the probative value of the statements is slight because, as in this case, the defense can stipulate that the stop was legal. As the Minnesota Supreme Court stated in State v. Williams, 525 N.W.2d 538 (Minn. 1994):

We have said a number of times that "a police officer testifying in a criminal case may not, under the guise of explaining how [the] investigation focused on defendant, relate hearsay statements of others."

Id. at 544 (citations omitted).

Accordingly, we conclude the trial court erred by admitting the citizen's statements. However, to require reversal, the error must also substantially influence the jury to convict. Considering all the evidence, including the testimony of the police officer, we cannot say the jury was substantially influenced by the admission of the hearsay statements. Therefore, we conclude the trial court did not commit reversible error.

In determining whether the trial court acted within its discretion in denying a motion for continuance, we look to whether the defendant was so prejudiced in preparing or presenting his defense as to "materially affect the outcome of the trial."

Id. (quoting State v. Lloyd, 345 N.W.2d 240, 247 (Minn. 1984)).

Hall argues he was prejudiced by the trial court's denial of his request for a continuance because it prevented his witness from testifying. After hearing Hall's offer of proof regarding the witness's testimony, the trial court determined that the testimony was irrelevant. We agree. The witness's testimony that Hall did not appear to be impaired more than an hour and a half before Hall was stopped by the police is not evidence that Hall was not under the influence of alcohol when he was stopped. In addition, questions concerning both the foundation for the testimony and the witness's potential bias cast doubts as to the value of the testimony. Therefore, we conclude Hall was not so prejudiced by the denial of the continuance that it materially affected the outcome of his trial.

Affirmed.