                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-1389

                                  State of Minnesota,
                                      Respondent,

                                           vs.

                             Tabashish Anamiki Ogitchida,
                                      Appellant

                                 Filed August 3, 2015
                                       Affirmed
                                    Worke, Judge

                             Becker County District Court
                               File No. 03-CR-13-427

Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General, St.
Paul, Minnesota; and

Gretchen D. Thilmony, Becker County Attorney, Detroit Lakes, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Worke, Presiding Judge; Cleary, Chief Judge; and

Smith, Judge.

                        UNPUBLISHED OPINION

WORKE, Judge

      Appellant challenges his test-refusal conviction, arguing that (1) evidence must be

suppressed because he was unlawfully seized, (2) the evidence was insufficient to sustain
his conviction, (3) he did not validly stipulate to a felony-enhancement element, and (4)

the test-refusal statute is unconstitutional. We affirm.

                                          FACTS

       On March 1, 2013, Becker County Sheriff’s Deputies Matt Gerving and Tyrone

Warren were on patrol when they noticed appellant Tabashish Anamiki Ogitchida

walking away from a car that was stopped against a snowbank on the side of the road. It

appeared from the tire tracks that the car had been traveling in the eastbound lane, then

crossed over the westbound lane and had come to a stop against a snowbank on the north

side, facing the closest oncoming traffic. The deputies observed Ogitchida walking east,

about 25 yards from the car, down the center of the road.

       Deputy Gerving made contact with Ogitchida and asked if he had been driving.

Ogitchida replied that he had not driven the car, and said that he had been dropped off by

a woman who had been driving. He said that they had been run off the road by a white

pickup, and that the woman had left with the individuals in the pickup. Deputy Gerving

asked Ogitchida for identification, which he did not have, so Deputy Gerving took down

Ogitchida’s name and date of birth. Deputy Warren then recognized Ogitchida and

recalled that his given name was Benjamin Bellanger. After Ogitchida repeated his

contention that a female was driving the car and added that he had been passed out in the

passenger seat, Deputy Warren asked to see the bottoms of Ogitchida’s shoes, a request

to which Ogitchida consented. Deputy Warren examined the ground around the vehicle

and noted only one set of footprints, which matched Ogitchida’s shoes. While Deputy

Warren was checking the footprints, Ogitchida handed a set of keys to Deputy Gerving,


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stating that they were the keys to the car and that he was handing them over because the

car did not belong to him. Deputy Gerving checked Ogitchida’s driving status, which

indicated that his license had been cancelled as inimical to public safety. Ogitchida was

placed under arrest for driving with a cancelled license.

       While Deputy Gerving was placing Ogitchida in handcuffs, he noticed the odor of

an alcohol beverage. Deputy Gerving turned Ogitchida to face him and tried to look him

in the eyes, but Ogitchida continually looked away. Deputy Gerving advised Ogitchida

that he was going to perform field sobriety tests, but Ogitchida said “I’m not going to do

any tests. Just take me to jail.” Deputy Gerving attempted to perform a horizontal gaze

nystagmus test, and in doing so noted bloodshot and watery eyes. After unsuccessfully

attempting field sobriety tests, the deputies transported Ogitchida to jail.

       Ogitchida was read the implied consent advisory. Deputy Gerving then asked

Ogitchida to take a breath test. Ogitchida initially said that he was too drunk, but then

said he would take the test. However, Ogitchida was uncooperative; he would rise from

his chair without permission, lay his head down to sleep, shout profanities, make sexual

references, and pull his shirt over his head. When Deputy Warren indicated that the

chemical test machine was ready, Ogitchida laid down on the floor. The deputies asked

Ogitchida to take the test, but Ogitchida did not reply or respond. The deputies each took

one of Ogitchida’s arms and attempted to lift him, but as they did so Ogitchida became

combative and tried to elbow Deputy Warren. The deputies used wristlocks to maintain

control of Ogitchida, and then placed him in a holding cell. Deputy Gerving recorded




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that Ogitchida had refused to take the test due to his combative and uncooperative

behavior.

       Ogitchida was charged with felony refusal to submit to a chemical test. The

complaint noted that Ogitchida’s driving record indicated three driving-while-impaired

(DWI) convictions in the previous ten years. Ogitchida moved to dismiss the charge and

to suppress evidence, but the district court denied the motions.

       Prior to commencement of trial, the district court asked if any records needed to be

made, and the following exchange occurred:

       PROSECUTOR:          Your Honor, just one, and [defense counsel] and I
                            had previously discussed this. They are going to be
                            stipulating to the prior DWIs that would be requisite
                            to match with the felony charge, that we would not be
                            presenting     evidence     regarding    those    prior
                            convictions.
       THE COURT:           All right. … [Ogitchida sworn in] [Defense counsel],
                            would you obtain a valid waiver of his jury trial
                            rights on that element of the offense?
       DEF. COUNSEL:        Mr. Ogitchida, you’ve been charged with a felony
                            because of priors, correct?
       OGITCHIDA:           Yes.
       DEF. COUNSEL:        And one of the things that we can do during the trial
                            is to not have evidence of the priors be presented to
                            the jury, as we would deem that prejudicial, right?
       OGITCHIDA:           Yes.
       DEF. COUNSEL:        And so we just waive that. We stipulated you do
                            have the requisite priors, so the trial becomes about
                            this event and this event only, correct? That the trial
                            becomes, did you do this one? And you don’t get
                            prejudiced by them hearing that you have priors?
       OGITCHIDA:           Yes.
       DEF. COUNSEL:        And so that’s why we’re going to stipulate that
                            there’s an enhanceable offense here based on priors
                            so the jury doesn’t hear them.
       OGITCHIDA:           Yes.
       DEF. COUNSEL:        And you would so stipulate to that?
       OGITCHIDA:           Yes.

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       The jury found Ogitchida guilty. He now appeals.

                                      DECISION

Evidence suppression

       Ogitchida first argues that the district court erred in concluding that he was

lawfully seized, and thus any evidence gleaned as result of his seizure must be

suppressed. In the context of a pretrial suppression of evidence, we review the district

court’s factual findings for clear error and its legal conclusions de novo. State v. Gauster,

752 N.W.2d 496, 502 (Minn. 2008).

       Ogitchida argues that he was seized when Deputy Gerving asked him for

identification and asked if he had been driving. We disagree. A seizure of a person

occurs when “objectively and on the basis of the totality of the circumstances, . . . a

reasonable person in the defendant’s shoes would have concluded that he or she was not

free to leave.”   In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993).             An

encounter with police is not a “seizure” if officers merely approach an individual and ask

questions, or ask for identification. Id. at 782.

       We agree with the district court that Ogitchida was seized when he was advised

that he was being placed under arrest for driving with a cancelled license. The seizure at

that time was lawful because the deputies reasonably suspected Ogitchida of criminal

activity.   State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995).               The deputies’

investigation indicated that (1) Ogitchida was in close proximity to a recently-driven

vehicle, (2) he had been inside the vehicle, (3) no other person was present in or around

the vehicle, (4) his footprints were the only footprints around the vehicle, (5) he had

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possessed the keys to the vehicle, and (6) his license had been cancelled as inimical to

public safety. This collection of “specific, articulable facts” leads to the conclusion that

Ogitchida had engaged in criminal activity. Id. Because the seizure of Ogitchida was

lawful, there is no basis upon which to suppress evidence. See id. at 392 (concluding that

evidence obtained from an illegal search must be suppressed).

Evidence sufficiency

       Ogitchida next argues that the evidence was insufficient to sustain his conviction

with regard to two of the elements of test refusal. Claims of insufficient evidence are

reviewed to determine whether the evidence, when viewed in the light most favorable to

the conviction, was sufficient to allow the jury to reach its verdict. State v. Webb, 440

N.W.2d 426, 430 (Minn. 1989). We 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 that the defendant was guilty of the offense.

Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

       Ogitchida first asserts that the evidence was insufficient to prove that he was under

arrest for DWI. To be required to take a chemical test, the state must have probable

cause to believe that a person was operating a vehicle while impaired and the person must

be “lawfully placed under arrest” for violation of Minnesota’s DWI statutes. Minn. Stat.

§ 169A.51, subd. 1(b)(1) (2012). Ogitchida’s assertion is contradicted by the record,

which shows that he was read aloud the implied consent advisory, which stated explicitly

that “you have been placed under arrest for” “operating a motor vehicle in violation of

Minnesota’s D.W.I. laws.” Ogitchida’s handwriting also appears on the advisory in


                                             6
several places. This evidence was sufficient for the jury to conclude that he was placed

under arrest for driving while under the influence of alcohol before he was asked to take

the breath test.

       Ogitchida also contends that the evidence was insufficient to prove that he refused

to take the breath test. In State v. Ferrier, this court engaged in a detailed discussion of

what constitutes criminal test refusal. 792 N.W.2d 98 (Minn. App. 2010), review denied

(Minn. Mar. 15, 2011). The rule is that “refusal to submit to chemical testing includes

any indication of actual unwillingness to participate in the testing process, as determined

from the driver’s words and actions in light of the totality of the circumstances.” Id. at

102. A specific verbal refusal is not required. Id. at 101. A driver is not permitted to

“verbally agree to testing and then frustrate the testing process without criminal

consequence.” Id. Here, the totality of the circumstances shows that Ogitchida refused.

Ogitchida gave some verbal indications that he would take the test, but his conduct

speaks louder than his words. After the test machine was prepared, Ogitchida laid on the

floor and was nonresponsive. When the deputies physically tried to move him, he

became combative, such that the deputies had to subdue him. The jury needed only to

credit the account of Ogitchida’s conduct at the time when he was asked to take the

breath test to validly conclude that he refused.

Stipulation

       Ogitchida argues that a necessary element of his offense has not been established.

A felony-level conviction for test refusal requires that the refusal be committed “within

ten years of the first of three or more qualified prior impaired driving incidents.” Minn.


                                              7
Stat. §§ 169A.20, subd. 2, .24, subd. 1(1) (2012). Ogitchida asserts that his on-the-record

stipulation was insufficient to fulfill this requirement.

       Ogitchida has waived this argument. A defendant may elect to waive his right to a

jury trial on one element of an offense and admit the existence of that element, “thereby

removing the issue from the case.” State v. Berkelman, 355 N.W.2d 394, 397 (Minn.

1984). Berkelman states that a district court errs in denying a defendant the ability to

stipulate to an element when consideration of that element has the potential to harm his

case. Id. Here, Ogitchida’s stipulation was a matter of trial strategy: he concluded that

the prejudicial effect of his past convictions might color the jury’s consideration of his

charged offense.     This strategy has merit, given the ease with which Ogitchida’s

convictions could have been proven.

       Ogitchida also argues that he did not validly waive his right to have the jury

consider the element of his past convictions, relying on State v. Kuhlmann. 806 N.W.2d

844 (Minn. 2011). Whether a defendant was denied the right to a jury trial is reviewed de

novo. Id. at 848-49. A waiver of this right must be knowing, intelligent, and voluntary,

and must be personally waived by the defendant. Id. at 848.

       But Kuhlmann is inapposite here, because in that case the defendant gave no on-

the-record expression of his waiver; rather, his counsel stipulated on his behalf. Id. at

847, 849. Kuhlmann specifically contrasts its facts with another case in which the

defendant gave an on-the-record waiver of his right to a jury trial, State v. Pietraszewski.

283 N.W.2d 887 (Minn. 1979). Here, Ogitchida gave an on-the-record waiver in which

he affirmatively agreed several times to waive his right to jury consideration of the


                                               8
element of his past convictions.      His affirmations must be viewed in light of the

complaint, which specified that “review of Ogitchida’s driving record indicates prior

DWI convictions in 2003, 2004, and 2006.” The on-the-record colloquy regarding the

waiver is more extensive than that in Pietraszewski.         See id. at 890.     The record

establishes that Ogitchida’s waiver was knowing, intelligent, and voluntary.

Constitutionality

       Ogitchida next argues that Minnesota’s test-refusal statute is unconstitutional as a

violation of substantive due process. However, just days after Ogitchida’s brief was filed

with this court, our supreme court addressed this precise argument and rejected it. State

v. Bernard, 859 N.W.2d 762, 773-74 (Minn. 2015).            Ogitchida’s argument is now

foreclosed by precedent.

Pro se supplemental brief

       Ogitchida filed a pro se supplemental brief that contains several claims. We will

not consider these claims because they lack support in the record and/or are unsupported

by legal authority. State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002) (concluding that

arguments set out in pro se supplemental brief would not be considered because the “brief

contain[ed] no argument or citation to legal authority in support of the allegations”); State

v. Wembley, 712 N.W.2d 783, 795 (Minn. App. 2006) (stating that assignment of error

based on mere assertion and not supported by argument or authority is waived unless

prejudicial error is obvious on mere inspection), aff’d, 728 N.W.2d 243 (Minn. 2007).

The brief contains a single legal authority, but it does not pertain to the argument made.

       Affirmed.


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