                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-0708

                                     State of Minnesota,
                                        Respondent,

                                             vs.

                                   Quintin Lynn Thomas,
                                         Appellant.

                                     Filed July 5, 2016
                                         Affirmed
                                      Bratvold, Judge

                               St. Louis County District Court
                                File No. 69DU-CR-14-1834

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Gunnar B. Johnson, Duluth City Attorney, Joanne R. Piper-Maurer, Assistant City
Attorney, Marcus E. Jones, Assistant City Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Reyes, Presiding Judge; Johnson, Judge; and Bratvold,

Judge.

                                      SYLLABUS

I.       Under Minnesota Rule of Criminal Procedure 26.03, the district court has discretion

         to grant or deny the state’s motion to reopen its case to offer additional evidence

         where the motion is made after the state has rested without proving an element of

         its prima facie case and the defense has moved for judgment of acquittal.
II.    In exercising its discretion on a motion to reopen, the district court should consider

       (a) when the motion is made, (b) whether the evidence is material, not cumulative,

       and concerns a controlling issue, and (c) whether the state had an improper purpose

       for failing to offer the evidence earlier.

                                        OPINION

BRATVOLD, Judge

       Appellant, Quintin Thomas, appeals his conviction of second-degree driving while

impaired, arguing that the district court abused its discretion by allowing the state to reopen

its case on a motion made after the state had rested and the defense had moved to acquit

based on a deficiency in the state’s prima facie case. Thomas also argues that the district

court improperly instructed the jury that the police officer who testified regarding the

operation of a breath-testing machine was testifying as an expert. Because we conclude

that the district court did not abuse its discretion in allowing the state to reopen its case or

by instructing the jury as it did, we affirm Thomas’s conviction.

                                           FACTS

       On May 16, 2014, after attending a funeral, Thomas went to the Players Sports Bar

in Duluth. While at the bar, Thomas had three to four Crown Royals with a beer chaser.

Thomas, who does odd jobs for a living, received a telephone call around midnight, while

still at the bar. Thomas then walked six blocks to make repairs on a Ford F250 pickup.

After he finished the repairs, his pre-arranged ride did not come, and his cell phone died.

Thomas stood for some time outside the pickup. Because it was cold—only 39 degrees—

Thomas entered the pickup, laid down across the bench seat in front, and fell asleep. Hours


                                               2
later, he awoke and was cold, so he turned on the ignition and heater and fell asleep in the

driver’s seat.

       Around 4:00 a.m., a police officer noticed the pickup with its engine running,

approached, and asked Thomas to do field sobriety tests. The police officer concluded that

Thomas failed the field-sobriety tests, arrested him, and administered a breath test at the

station. His alcohol concentration registered at 0.16.

       The state charged Thomas with two counts of gross-misdemeanor driving,

operating, or being in physical control of a motor vehicle while impaired (one predicated

on an alcohol concentration of 0.08 measured within two hours and the other on being

under the influence of alcohol). Both counts were enhanced to second-degree offenses

because of two prior qualified incidents: a 2007 Minnesota conviction for driving under

the influence of alcohol and a 2006 Wisconsin conviction for operating a vehicle while

intoxicated. See Minn. Stat. § 169A.25, subd. 1(a) (2012).

       On the first day of trial and outside the jury’s presence, Thomas declined to stipulate

to the prior convictions. The defense made a record of this decision, noting that Thomas

wanted to require the state to “prove the priors” and that Thomas understood the state could

do so by offering certified copies of the prior convictions. The parties stipulated to some

redactions to the state’s certified records.

       During trial, there was no dispute about Thomas’s claim that he never drove or

operated the pickup. The state argued it needed to prove that Thomas was impaired while

in physical control of a motor vehicle. The state presented its case-in-chief, eliciting

testimony from two police officers regarding Thomas’s conduct and alcohol concentration.


                                               3
After this testimony concluded, the state rested without offering the certified copies of the

prior convictions. Outside the jury’s presence, Thomas moved for judgment of acquittal,

arguing that the state failed to offer proof on two aggravating factors needed to prove

second-degree DWI. The district court took a short recess then heard argument from both

sides, during which the state asked to reopen its case. Thomas opposed the state’s request.

       The district court denied Thomas’s motion for judgment of acquittal at the same

time that it granted the state’s motion to reopen. Relying on caselaw and the relevant rule

of criminal procedure, the district court determined that it had discretion to allow the state

to reopen its case and present the omitted evidence. The district court also found that the

missing evidence was not a surprise to the defense, nor was it cumulative; the missing

evidence involved a controlling issue; and, the state did not have an improper purpose.

Also, the district court noted that, even if Thomas’s motion prevailed, the state could likely

amend to a misdemeanor charge.

       The state then offered a certified conviction record and Thomas’s certified driving

record into evidence, which the court received. The state rested again. Outside the jury’s

presence, Thomas made a record of what he would have done if the district court had denied

the state’s motion to reopen and allowed the amendment to a misdemeanor, saying he

would not have testified. As a result of the ruling, however, Thomas testified about the

events of the evening. Based on this testimony, Thomas’s attorney argued in closing that

Thomas’s options that night were “severely limited,” he did the right thing by not driving,

and he was trying to keep warm on a cold night.




                                              4
       Before submitting the case to the jury, the state dismissed the charge of second-

degree driving while impaired. The jury found Thomas guilty of second-degree operating

and/or being in physical control of a motor vehicle with an alcohol concentration of 0.08

or more within two hours. This appeal followed.

                                           ISSUES

I.     Did the district court have discretion to grant the state’s motion to reopen that was

       made after the state had rested without proving an element of its prima facie case

       and the defendant had moved for acquittal?

II.    Did the district court abuse its discretion in instructing the jury about expert

       testimony after a police officer’s testimony about breath-test results had been

       admitted without objection?

                                         ANALYSIS

I.     Motion to Reopen

       Thomas argues that the district court erred, first, in deferring its decision on his

motion for a judgment of acquittal. Thomas is correct that it is error to defer ruling on a

motion to acquit following the state’s case-in-chief. See Minn. R. Crim. P. 26.03, subd.

18(2); State v. Penkaty, 708 N.W.2d 185, 208 (Minn. 2006). The transcript, however,

shows that the district court denied Thomas’s motion at the same time it granted the state’s

motion to reopen. Thus the district court did not err.

       Thomas’s second argument is that the district court erred in allowing the state to

reopen its case because the state rested after failing to offer evidence of an essential element

of its case. This issue appears to be one of first impression for Minnesota. Thomas urges


                                               5
this court to follow the reasoning stated in State v. Allen, 533 A.2d 559 (Conn. 1987). The

state does not address Allen and instead argues that the district court should be affirmed

under existing Minnesota caselaw and the relevant rule of criminal procedure.

       This court reviews “the disposition of a party’s request to reopen its case after the

party has rested under an abuse-of-discretion standard.” State v. Caine, 746 N.W.2d 339,

352–53 (Minn. 2008); see also State v. Jouppis, 147 Minn. 87, 89, 179 N.W. 678, 679

(1920) (“Whether a party shall be permitted to reopen his case and present further evidence

after he has rested, is generally within the discretion of the trial court . . . .”). On the other

hand, “[w]e review de novo the district court’s interpretation of the criminal rules of

procedure.” In re Welfare of T.C.J., 689 N.W.2d 787, 790 (Minn. App. 2004), review

dismissed (Minn. Jan. 26, 2005).

       District courts have discretion in managing trials. State v. Blom, 682 N.W.2d 578,

609 (Minn. 2004). This discretion includes the mode and order of evidence presentation.

Minn. R. Evid. 611(a). The district court’s discretion to allow a party to reopen its case

after resting is set out in the Minnesota Rules of Criminal Procedure, as follows: “The

prosecutor may rebut the defense evidence, and, the defense may rebut the prosecutor’s

evidence. In the interests of justice, the [district] court may allow any party to reopen that

party’s case to offer additional evidence.” Minn. R. Crim. P. 26.03, subd. 12(g).

       Minnesota caselaw shows that any party may be allowed to reopen. The district

court allowed the state to reopen in State v. Berg, where the Minnesota Supreme Court held

that the district court did not abuse its discretion in allowing the state to call a witness

despite the state’s failure to timely disclose the witness. 326 N.W.2d 14, 16 (Minn. 1982).


                                                6
The district court allowed the defense to reopen in Jouppis, where the supreme court

analyzed the issue, as follows:

              [w]here a defendant whose liberty is at stake rests, perhaps
              through the inadvertence of his attorney, and then, before the
              prosecution enters upon its rebuttal or any further proceedings
              are taken, asks to reopen his case and tenders material
              evidence, not cumulative, upon a controlling issue, and there is
              nothing to indicate any improper purpose in failing to produce
              such evidence earlier, we think he should be permitted to
              present it in furtherance of a fair trial.

147 Minn. at 90–91, 179 N.W. at 679. Based on this analysis, the supreme court reversed a

conviction and remanded for a new trial because the trial court had granted the defense

motion to reopen only to exclude the witness’s pertinent testimony.

       From this caselaw, relevant considerations have emerged to guide the court’s

discretion in deciding a motion to reopen. In Caine, the supreme court identified three

factors: (1) when the request was made, (2) whether the evidence was material, not

cumulative, and concerned a controlling issue; and (3) whether there was an improper

purpose for failing to produce the evidence earlier. 746 N.W.2d at 353 (citing Jouppis, 147

Minn. at 89–90, 179 N.W. at 679).

       Thomas argues that this caselaw is not dispositive because his case presents the

more specific issue of whether a district court errs in granting a motion to reopen after a

defendant has moved for acquittal based on the state’s failure to prove a prima facie

element. No Minnesota caselaw appears to have considered whether the discretion to

reopen extends to this specific context. In arguing that no discretion exists in this situation,

Thomas relies on State v. Allen, where the Connecticut Supreme Court considered



                                               7
strikingly similar circumstances and caselaw. Allen distinguished the caselaw because the

state’s request to reopen was made as a direct result of the defendant’s motion for acquittal.

533 A.2d at 559, 564–66. The defense moved for acquittal because the state had offered no

evidence on barrel length, as required for a violation of the weapons-possession statute. Id.

at 560–61. The district court denied the motion and, the next day, allowed the state to

reopen and offer the missing evidence. Id. at 560.

       In reversing the conviction, the supreme court anchored its analysis on “the

fundamental concept that the state has the burden of proving every element of an alleged

crime beyond a reasonable doubt,” noting that “[o]ne of the greatest safeguards for the

individual under our system of criminal justice is the requirement that the prosecution must

establish a prima facie case by its own evidence before the defendant may be put to his

defense.” Id. at 562 (quotation omitted). Allen reasoned that “had the defendant remained

silent until after the verdict had been rendered, the omission of this evidence would have

required a judgment of acquittal either in the trial court or on appeal.” Id. Instead, the

defendant moved for acquittal. The court observed that “[h]aving specifically brought this

evidentiary gap to the attention of the state, the defendant was effectively victimized by his

own diligence as the state used the reopening to supply the missing element of the crime,

thus assuring the defendant’s conviction.” Id. at 563. The court concluded that allowing

the state to reopen its case under such circumstances would make motions for judgment of

acquittal a “dead letter.” Id. Allen held that it is an abuse of discretion to permit reopening

of the state’s case when the defendant has specifically identified an evidentiary gap in a

motion for acquittal and the state failed to make a prima facie case. Id. at 566.


                                              8
       Allen’s reasoning has some persuasive value, but we note that Allen has not been

followed by any other jurisdiction.1 In fact, the other jurisdictions that have addressed this

issue have reached various conclusions. See State v. Collier, 438 So. 2d 652, 655 (La. Ct.

App. 1983) (holding “that it is error to allow the State to reopen its case in a bench trial to

prove an essential element of the offense charged after the State has closed, and after the

defendant has moved for a judgment of acquittal”); People v. Whipple, 760 N.E.2d 337,

341 (N.Y. 2001) (holding that the district court may allow a prosecutor to reopen its case

in response to a defense motion for acquittal if “the missing element is simple to prove and

not seriously contested, and reopening the case does not unduly prejudice the defense”).2




1
   But see Lyle v. State, 987 So. 2d 948, 951 (Miss. 2008) (citing Allen approvingly but
holding that trial courts may allow the state to reopen to present evidence of an essential
element when the omission is inadvertent). In addition, since Allen was issued in 1987,
Connecticut has limited its application to cases where the defendant specifically identifies
the evidentiary gap. See State v. Mendoza, 988 A.2d 329, 335 (Conn. App. Ct. 2010)
(recognizing this limit in the Allen holding).
2
   See also People v. Whitfield, 573 N.E.2d 1267, 1274–75 (Ill. App. Ct. 1991) (noting
disagreement on this issue in Illinois appellate courts); People v. Faulkner, 381 N.E.2d
321, 324 (Ill. App. Ct. 1978) (holding that district court did not abuse its discretion by
granting the state’s motion to reopen while reserving the defendant’s motion for a directed
verdict); State v. McKay, 723 N.W.2d 644, 648 (Neb. Ct. App. 2006) (holding that the
district court had discretion to grant the state’s request to reopen following the defendant’s
motion for discharge but noting that when the state seeks to reopen in order to make a
prima facie case, then a finding of abuse of discretion becomes more likely). Under federal
law, “a district judge retains wide discretion to allow the government to re-open its case to
correct errors ‘or some other compelling circumstance . . . justifies a reopening and no
substantial prejudice will occur.’” United States v. Leslie, 103 F.3d 1093, 1104 (2d Cir.
1997) (quoting United States v. Hinderman, 625 F.2d 994, 996 (10th Cir. 1980)). Federal
district courts generally allow reopening “to establish venue, identify the defendant, or
attend to other technical matters.” Id.

                                              9
       Importantly, the language of the relevant Minnesota rule supports affirmance in

light of the record in this case. The applicable rule of criminal procedure provides that,

“[i]n the interests of justice, the court [may] allow any party to reopen that party’s case to

offer additional evidence.” Minn. R. Crim. P. 26.03, subd. 12(g). The language is very

broad; it does not make a distinction between the state and the defense, it allows the district

court to consider “the interests of justice,” and it does not limit “additional evidence” to

exclude evidence required to complete the state’s prima facie case.3 Additionally,

Minnesota’s caselaw demonstrates that motions to reopen occur in a wide variety of

circumstances and district courts generally have discretion to grant or deny the motions

depending on the circumstances.

       Trial is not a game of “gotcha,” and a judge may permit the state to correct

inadvertent error. Cf. Minn. R. Crim. P. 1.02 (“These rules are intended to provide a just

determination of criminal proceedings, and ensure a simple and fair procedure that

eliminates unjustified expense and delay.”); Whipple, 760 N.E.2d at 340 (“The motion for

a trial order of dismissal gave the People notice of the technical omission, and the issue

now is whether, as a matter of law, a trial court may never permit the People to act on such

notice—a sort of ‘gotcha’ principle of law.”); 6 Wayne R. LaFave et al., Criminal

Procedure § 24.6(b) (4th ed. 2015) (“Rather than treat the trial like a game of ‘gotcha,’ a

judge may permit the prosecution to remedy such an oversight.”).




3
  We note that this rule may differ from the rule about reopening in Connecticut, which is
not quoted or discussed in the Allen opinion.

                                              10
       Thus we interpret Minnesota Rule of Criminal Procedure 26.03, subd. 12(g), to

provide that a district court has discretion to grant or deny a motion to reopen, even when

made by the state after the defense has pointed out deficiencies in the state’s prima facie

case in a motion for acquittal. We note, however, that the state relies on a motion to reopen

at its own peril because the district court may deny as well as grant the state’s request. See

Whipple, 760 N.E.2d at 341 (noting that, under New York law, district courts have

discretion to deny a state’s motion to reopen following a defense motion to dismiss).

       In addition, we are “bound by supreme court precedent and the published opinions

of [this court].” State v. M.L.M., 785 N.W.2d 763, 767 (Minn. App. 2010). The supreme

court held in Caine that the abuse-of-discretion standard applies to the district court’s

decision to permit a party to reopen the case after the party has rested. 746 N.W.2d at 353.

The supreme court also identified the relevant factors for a district court to consider. Caine,

746 N.W.2d at 353 (citing Jouppis, 147 Minn. at 89–90, 179 N.W. at 679). Here, the district

court properly analyzed the factors. The state’s request to reopen was made immediately

after the prosecution rested; the evidence was material, not cumulative, and concerned a

controlling issue. Thomas was not surprised by the evidence and did not allege any

improper purpose for failing to produce the evidence earlier.4 Applying the relevant




4
   We recognize, as Allen did, that allowing the state to reopen its case may discourage
defense attorneys from making timely acquittal motions by penalizing them for identifying
missing evidence of the state’s prima facie case. The factors identified in Caine allow the
district court to consider these concerns in exercising its discretion. The district court is in
the best position to weigh these concerns under the circumstances of each particular trial.

                                              11
caselaw to this record, this court concludes that the district court did not abuse its discretion

by allowing the state to reopen its case to offer evidence of Thomas’s prior convictions.

II.    Jury Instructions

       Thomas also argues that the district court improperly granted the state’s request to

have the jury instructed on expert testimony. Officer Ring, who testified regarding

Thomas’s alcohol concentration, also testified about his training and experience with the

operation of the breath-test machine—the Datamaster—that he administered to Thomas.

Officer Ring testified about the test, Thomas’s test results, and that he received no error

messages from the Datamaster. The officer did not offer any opinion testimony. Thomas

did not object to the officer’s testimony but later objected to the state’s proposed jury

instructions, which included an expert-testimony instruction, arguing that it was incorrect

to evaluate the testimony of the officer under the expert-testimony standard. The district

court agreed with the state that the officer was “an expert as to whether the machine

operated appropriately on this particular occasion” and gave the standard jury instruction

on expert testimony.

       Although Thomas’s brief implies that the district court referred to Officer Ring as

an expert or vouched for his credibility, we note that the record does not support this view.

The instruction given was neutral and patterned after the standard expert-testimony jury

instruction. See 10 Minnesota Practice, CRIMJIG 3.13 (2015). The relevant jury

instruction, as read aloud by the district court at trial, is reproduced below:

                     Expert testimony. A witness who has special training,
              education, or experience in a particular science, occupation, or
              calling is allowed to express an opinion as to certain facts.


                                               12
              Determining the believability and weight to be given such
              opinion evidence you may consider:

                      One, the education, training, experience, knowledge,
              ability of the witness. Two, the reasons given for that opinion.
              Three, the sources of the information. Four, factors already
              given you for evaluating testimony of other witnesses. Such
              opinion evidence is entitled to neither more or less
              consideration by you than other evidence.

       This court reviews jury instructions for an abuse of discretion. State v. Koppi, 798

N.W.2d 358, 361 (Minn. 2011). A district court has “considerable latitude” in selecting the

language for jury instructions. State v. Gatson, 801 N.W.2d 134, 147 (Minn. 2011)

(quotation omitted). “Jury instructions, reviewed in their entirety, must fairly and

adequately explain the law of the case.” Koppi, 798 N.W.2d at 362. “An instruction is in

error if it materially misstates the law,” State v. Kuhnau, 622 N.W.2d 552, 556 (Minn.

2001), but “[a] mistaken jury instruction does not require a new trial if the error was

harmless.” State v. Hall, 722 N.W.2d 472, 477 (Minn. 2006). “An erroneous jury

instruction is harmless only if it can be said that, beyond a reasonable doubt, the error had

no significant impact on the verdict rendered.” Id.

       Thomas argues this jury was erroneously instructed on expert testimony based on

State v. Ards, which held that a police officer’s testimony regarding a breath-test machine

was not expert testimony and was admissible as lay testimony. 816 N.W.2d 679, 684–86

(Minn. App. 2012). Thomas also points to statutory language, noting that the state did not

need expert testimony to introduce breath-test evidence. See Minn. Stat. § 634.16 (2014)

(providing that the results of infrared or other approved breath-testing instruments are

admissible without antecedent expert testimony establishing the trustworthiness of such


                                             13
instruments). Thomas argues that he was prejudiced by the jury instruction because it was

an “improper endorsement of the testifying officer” as an “expert.”

       We conclude that Ards is readily distinguishable from this case. In Ards, the issue

on appeal was whether the district court committed plain error in admitting the officer’s

testimony regarding reliability of the breath-test results. 816 N.W.2d at 682. This court

held that the district court did not plainly err because the police officer testified to his

training, did not in fact testify as an expert, and his testimony about reliability was proper

as a lay witness. Id. at 685. Like Ards, Thomas did not object to the police officer’s

testimony. Unlike Ards, Thomas does not challenge the admission of the officer’s

testimony on appeal. Under Ards and Minn. Stat. § 634.16, expert testimony is not required

to admit breath-test results. It does not follow, however, that it is error to permit expert

testimony on the operation of a breath-test machine.

       The testifying officer had specialized knowledge, skill, and experience with the

DataMaster, and the jury was instructed that, as an element of the offense, it needed to

“evaluate the reliability of the testing method and the test results.” The district court has

broad discretion in assessing an expert witness’s qualifications, Ray v. Miller Meester

Adver. Inc., 664 N.W.2d 355, 365 (Minn. App. 2003), aff’d, 684 N.W.2d 404 (Minn. 2003),

and selecting jury instructions. See Gatson, 801 N.W.2d at 147. Thus, the district court did

not abuse its discretion in instructing the jury on expert testimony.

       Further, even if the district court erred in giving the expert-testimony instruction

because this officer offered no opinion, “[a] mistaken jury instruction does not require a

new trial if the error was harmless.” Hall, 722 N.W.2d at 477. In light of the district court’s


                                              14
instruction that “such opinion evidence is entitled to neither more or less

consideration . . . than other evidence,” we conclude that any error would have been

harmless. Accordingly, we affirm Thomas’s conviction.

                                             DECISION

       The district court did not abuse its discretion in granting the state’s motion to reopen

when made after the state had rested without proving an element of its prima facie case and

the defendant had moved for acquittal. Because the state made the request promptly, the

evidence was material, not cumulative, and concerned a controlling issue, the omission was

inadvertent, and the defendant was not surprised, the district court properly exercised its

discretion. Additionally, the district court did not abuse its discretion in instructing the jury

on expert testimony where the police officer testified that he had specialized training and

experience with a breath-test machine, the officer testified regarding the test and the results,

and the defendant does not challenge the admission of the testimony.

       Affirmed.




                                               15
