                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2012).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A14-0364

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                                  Matthew Roy Horvath,
                                       Appellant.

                                 Filed December 8, 2014
                                        Affirmed
                                     Hudson, Judge

                             Washington County District Court
                                File No. 82-CR-12-3623

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

Pete Orput, Washington County Attorney, Robin M. Wolpert, Kari A. Lindstrom,
Assistant County Attorneys, Stillwater, Minnesota (for respondent)

Brian P. Karalus, Stephen Grigsby, St. Paul, Minnesota (for appellant)

         Considered and decided by Peterson, Presiding Judge; Hudson, Judge; and Larkin,

Judge.

                          UNPUBLISHED OPINION

HUDSON, Judge

         Appellant challenges his convictions of operating a motorboat under the influence

of alcohol and chemical-test refusal, arguing that (1) the district court improperly

instructed the jury by not requiring unanimous findings on the facts underlying an
element of the offense and by giving the standard jury instruction on the elements of test

refusal; (2) the admission of hearsay statements by a passenger in the boat prejudicially

affected appellant’s defense; and (3) the district court abused its discretion by admitting

evidence of appellant’s belligerent post-arrest behavior as evidence of his impairment.

We affirm.

                                         FACTS

       The state charged appellant Matthew Roy Horvath with one felony count of

operating a motorboat under the influence of alcohol in violation of Minn. Stat.

§ 169A.20, subd. 1a(1) (2012), and one felony count of refusal to submit to chemical

testing in violation of Minn. Stat. § 169A.20, subd. 2 (2012). At appellant’s jury trial, a

Washington County deputy sheriff testified that, at about 9:00 p.m., while patrolling on a

lake near Forest Lake, he observed a boat underway without full navigation lights. The

boat appeared to be propelled by a trolling motor off its front, with its main motor lifted

out of the water. The deputy testified that as he approached the boat, he saw appellant

move back and forth from the front of the boat towards its center, the location of the

console and the throttle. He also observed that a woman was seated on a pedestal seat at

the back of the boat and did not move from that position.

       The deputy testified that, when questioned, appellant stated that he must have had

the lighting switch in the wrong position. He also showed the deputy a remote control for

the trolling motor. The deputy testified that the main trolling motor control, which had a

foot pedal, was located near the bow of the boat. The deputy noticed an odor of alcohol;

that appellant had slightly slurred speech, a flushed face, and watery eyes; and that open


                                            2
beer cans were present. He asked appellant if he had been drinking; appellant responded

that he had a couple of drinks. After appellant had difficulty performing field sobriety

tests and declined to take a preliminary breath test, the deputy placed him under arrest.

According to the deputy, appellant then stated that he had not been operating the boat and

asked the woman, J.W., to indicate that she was operating the boat, but J.W. sat there

without speaking.

       The deputy testified that appellant became very belligerent and agitated. Defense

counsel objected on the grounds of relevance. The prosecutor argued that the evidence

went to appellant’s state of mind; the district court overruled the objection. The deputy

also testified that, during transport to the law enforcement center, appellant, although

compliant, continued to act in a confrontational and argumentative manner, swearing and

repeatedly asking why he was being arrested. The deputy testified that he read the

implied-consent advisory to appellant, and appellant again declined testing.

       The jury found appellant guilty of both counts.         The district court denied

appellant’s motion for a new trial and sentenced him to 54 months, a downward

dispositional departure, with a stay of execution and conditions of probation.

                                     DECISION

                                             I

       Appellant challenges the district court’s jury instructions, to which he did not

object at trial. “[F]ailure to object to jury instructions precludes review unless the

appellant can show that there was a plain error affecting substantial rights.” Gulbertson

v. State, 843 N.W.2d 240, 247 (Minn. 2014). Under that standard, we will reverse trial


                                             3
error if there is an error that was plain and if appellant’s substantial rights were affected

by the error. State v. Hayes, 831 N.W.2d 546, 555 (Minn. 2013). “An error is plain if it

contravenes case law, a rule, or a standard of conduct.” Id. (quotation omitted). If these

three prongs are met, the appellate court then assesses whether it should address the error

to ensure fairness and the integrity of the judicial proceedings. Id.

       Jury instructions must define the crime charged and explain the elements of the

offense; they must not materially misstate the law. State v. Kuhnau, 622 N.W.2d 552,

556 (Minn. 2001). The district court has “considerable latitude” in selecting the exact

language of the instructions. Gulbertson, 843 N.W.2d at 247. We review the instructions

as a whole and “will not reverse where [they] overall fairly and correctly state the

applicable law.” Id.

       Appellant argues that the district court committed plain error by giving jury

instructions that were not consistent with the Minnesota Supreme Court’s opinion in State

v. Koppi, 798 N.W.2d 358 (Minn. 2011). In Koppi, the supreme court held that the

district court committed prejudicial error by instructing the jury that “[p]robable cause

means that the officer can explain the reason the officer believes it was more likely than

not that the defendant drove, operated or was in physical control of a motor vehicle while

under the influence of alcohol.” Id. at 363 (quoting 10A Minnesota Practice, CRIMJIG

29.28 (Supp. 2009)). The supreme court held that the instruction contained three flaws:

(1) it did not require an officer to articulate the specific circumstances and observations

supporting probable cause; (2) it “[did] not require the jury to determine whether a

reasonable police officer would find probable cause that [the defendant] was driving


                                              4
while impaired”; and (3) it stated an erroneous “more likely than not” standard for the

officer’s basis for probable cause, rather than the correct “honest and strong suspicion”

standard. Id. (quotation omitted).

       The district court here instructed the jury on probable cause for the test-refusal

count as follows:

              The elements of a refusal to submit to testing are, first, a
              peace officer had probable cause to believe that the defendant
              operated or was in physical control of a motorboat while
              under the influence of alcohol.

              Probable cause means that the officer testified to the objective
              facts and circumstances that led the officer to have an honest
              and strong suspicion that the defendant was operating or in
              physical control of a motorboat while under the influence of
              alcohol.

              You must evaluate the totality of the circumstances from the
              viewpoint of a reasonable officer considering the arresting
              officer’s observations, experience and training.1

       Appellant argues that these instructions were deficient because they did not

instruct the jury “that they must agree unanimously on each constituent fact which

warrants the conclusion of probable cause.” Similarly, he contends that they materially

misstated the law because they directed the jury to draw a legal conclusion on probable

cause and evaluate the totality of the circumstances without requiring them to first find

those circumstances true beyond a reasonable doubt. We reject these arguments.




1
 This instruction is similar to, but not identical to, the pattern instruction on the elements
of test refusal, as revised after Koppi. See 10A Minnesota Practice, CRIMJIG 29.28
(Supp. 2014).

                                              5
      To convict a defendant, a jury must find that the state has proved each element of

the offense. State v. Pendleton, 725 N.W.2d 717, 730–31 (Minn. 2007). “But the jury

does not have to unanimously agree on the facts underlying an element of a crime in all

cases.” Id. at 731; see also State v. Hager, 727 N.W.2d 668, 674 (Minn. App. 2007)

(stating that Minnesota courts have “recognized the distinction between the basic

elements of the crime and the facts underlying those basic elements”). Stated another

way, a jury need not decide unanimously “which of several possible sets of underlying

brute facts make up a particular element” of the offense in order to convict. Richardson

v. United States, 526 U.S. 813, 817, 119 S. Ct. 1707, 1710 (1999); see also State v.

Ayala-Leyva, 848 N.W.2d 546, 554–55 (Minn. App. 2014) (concluding that the district

court did not plainly err by failing to instruct the jury that it was required to identify

which of 20 overt acts supported the overt-acts requirement of conspiracy), review

granted (Minn. Aug. 5, 2014).

      Here, the deputy observed that appellant showed several different indicia of

intoxication. The jury was not required to identify which of those indicia supported its

finding that the probable-cause element of the test-refusal offense had been met. See

Pendleton, 725 N.W.2d at 731; see also State v. Kier, 678 N.W.2d 672, 678 (Minn. App.

2004) (stating that “[a]n officer needs only one objective indication of intoxication to

constitute probable cause to believe a person is under the influence”). And appellant

cites no authority to support his argument that the jury must apply a two-step analysis of

first finding circumstances true beyond a reasonable doubt before evaluating the

circumstances to find that the probable-cause element was met.


                                            6
       Appellant also argues that the jury instruction “constructively amended the

[r]efusal statute and made it unconstitutionally vague” because its application would

“make[] a person criminally liable for the unknown variable of the particular police

officer’s training and experience.” If an instruction is so vague and confusing that it

violates fundamental ideas of fairness, a court “inquire[s] whether there is a reasonable

likelihood that the jury has applied the challenged instruction in a way that violates the

Constitution.” Estelle v. McGuire, 502 U.S. 62, 72, 112 S. Ct. 475, 482 (1991) (quotation

omitted). But in this context, fundamental fairness is “very narrowly” defined. Id. at 73,

112 S. Ct. 482. Further, a jury instruction is not generally analyzed under the “void for

vagueness” standard because it “does not establish the elements of a crime, but merely

attempts to explain a statutory definition.” People v. Raley, 830 P.2d 712, 731 (Cal. App.

1992). We discern no error of fundamental fairness in the district court’s instructions,

and appellant has not established plain error based on this argument.

       We also reject appellant’s related contention that the challenged instruction invited

a subjective assessment of probable cause. The instruction directed the jury to “evaluate

the totality of the circumstances from the viewpoint of a reasonable officer considering

the arresting officer’s observations, experience and training.” Appellant argues that the

term “evaluate” refers to a subjective process which exceeds the jury’s fact-finding role.

In a criminal case, “the court shall decide questions of law, except in cases of criminal

defamation, and the jury shall decide questions of fact.” Minn. Stat. § 631.06 (2012).

But a process of evaluation is implicit in the jury’s role to “decide” factual questions. See

id.


                                             7
       Appellant also maintains that the instruction lacked an objective standard because

it allowed the jury to consider an individual officer’s training and experience when

determining probable cause.       But the supreme court in Koppi recognized that the

probable-cause standard “incorporates the individual characteristics and intuitions of the

officer to some extent.” 798 N.W.2d at 362. And the instructions correctly required the

officer to “testif[y] to the objective facts and circumstances that led the officer to have an

honest and strong suspicion that the defendant was operating or in physical control of a

motorboat while under the influence of alcohol.”          Cf. id. at 363 (holding as error

instructions that “[did] not require the officer to recite actual observations and

circumstances supporting a finding of probable cause”).

       We thus conclude that, taken as a whole, the jury instructions comport with the

requirements set forth in Koppi and were not plainly erroneous. Therefore, we need not

reach the third prong of the plain-error analysis, which considers whether the error

affected substantial rights. See Hayes, 831 N.W.2d at 555.

                                              II

       Appellant argues that the admission of the deputy’s spontaneous, unobjected-to

hearsay testimony that J.W. did not know how to drive the boat warrants reversal because

it was prejudicially damaging to his defense. Because appellant did not move for a

mistrial or request a curative instruction, we review his objection for plain error. See

State v. Manthey, 711 N.W.2d 498, 505 (Minn. 2006) (noting plain-error standard for

district court’s failure to act sua sponte to limit effect of inadmissible testimony by giving

a curative instruction or granting a mistrial). The state has an obligation to caution its


                                              8
witnesses against making prejudicial statements. See State v. Underwood, 281 N.W.2d

337, 342 (Minn. 1979) (stating that, to avoid the problem occasioned by a witness

blurting out objectionable testimony, the state has a duty before trial to properly prepare

its witnesses). But the district court is in the best position to determine whether a

witness’s spontaneous statement creates sufficient prejudice so that the defendant was

denied a fair trial. Manthey, 711 N.W.2d at 506.

      On cross-examination, the following colloquy occurred between defense counsel

and the deputy:

      Q:     Did you ever talk to [J.W.]?

      A.:    I did.

      Q.:    And what did she have to say, if anything?

      A.:    Very little.

      The district court then sustained a hearsay objection by the prosecutor. Defense

counsel resumed questioning the deputy:

      Q.:    So at some point in time you did in fact converse with [J.W.]?

      A.:    Absolutely. A passenger on a boat.

      Q.:    And there was — and she, without saying what she did say, did she ever
             open up her mouth and words come out?

      A.:    Did she speak?

      Q.:    Yes.

      A.:    She answered the questions I asked her.

      Q.:    Okay. What questions did you ask her?



                                            9
       A.:    I asked her if that one beer was hers, how she was doing.

       Q.:    I’m going to ask you, did you ever document that in any of your reports;
              that [J.W.] and you actually had a conversation?

       A.:    I have to look. When I first placed [appellant] under arrest, . . . I asked
              [her] if she would operate the—with his permission—take the boat ashore
              and she declined.

       Q,:    Okay. This was after the arrest?

       A.:    [She] declined saying that she did not know how to operate the boat. And
              with [appellant’s] permission we towed it in.

       Q.:    And . . . did you actually ask [her] to drive the boat after taking a PBT?

       A.:    She refused a PBT. That was . . . part of my conversation with her.

       Q.:    And this was after the arrest of [appellant]?

       A.:    Part of my conversation was if you pass the PBT would you be willing to
              drive the boat with [appellant’s] permission? She said I don’t know how to
              drive the boat.

       Q.:    Or she was just denying to take the PBT?

       A.:    No her words were I don’t know how to operate the boat.

       Defense counsel then asked the deputy if he noticed any signs of impairment with

J.W., and he testified that he did not. He also testified that J.W. was “nowhere near” the

operating controls of the boat. He testified that he believed appellant was operating the

boat, based on his position in the front of the boat, where the foot pedal for the trolling

motor was located.

       On redirect, the prosecutor asked the deputy what J.W.’s response was when asked

whether she would operate the boat. Defense counsel objected, the prosecutor argued

that the defense had opened the door, and the district court overruled the objection. See


                                             10
State v. Bailey, 732 N.W.2d 612, 622 (Minn. 2007) (stating that opening the door occurs

when one party introduces certain material, creating a right in the opponent to respond

with otherwise inadmissible material). The deputy then testified that she responded that

she did not know how to operate the boat.

       The record shows that defense counsel on cross-examination raised the topic of the

deputy’s conversation with J.W. Under these circumstances, the district court did not

commit plain error by declining to act sua sponte to limit the deputy’s testimony and

instead deferring to defense counsel’s trial strategy. See, e.g. State v. Washington, 693

N.W.2d 195, 205 (Minn. 2005) (concluding that plain error did not occur when the

district court did not sua sponte limit objectionable testimony, stating, “[w]e do not agree

that the district court must, or even should, interfere with the trial strategy of the

defendant”).

                                            III

       Appellant argues that the district court abused its discretion by admitting evidence

of his post-arrest belligerent behavior, including cursing at police and kicking the squad

car. On review, appellant has the burden to establish both an abuse of discretion in

admitting the evidence and that he was prejudiced by its admission. State v. Amos, 658

N.W.2d 201, 203 (Minn. 2003). An error is prejudicial if there is a reasonable possibility

that the verdict might have been different if the evidence had not been admitted. State v.

Post, 512 N.W.2d 99, 102 (Minn. 1994).

       At trial, the district court overruled appellant’s objection to the admission of

evidence of his post-arrest behavior on the ground of relevance. He argues that this


                                            11
evidence was irrelevant to establishing probable cause, which does not require evidence

of his state of mind, including whether he had an intent not to submit to testing. But

appellant was also charged with operating a motorboat while under the influence. To

convict appellant of that offense, the jury was required to find that he was under the

influence of alcohol at the time he was in physical control of the motorboat. See Minn.

Stat. § 169A.20, subd. 1a(1). Evidence of his post-arrest behavior was relevant and

probative of whether the elements of that offense were met, and the district court did not

abuse its discretion by admitting it.

       Affirmed.




                                           12
