                        This opinion will be unpublished and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
                                   A13-2380

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                                Karen Marie O’Farrell,
                                     Appellant.

                              Filed November 24, 2014
                                      Affirmed
                                  Bjorkman, Judge


                           Blue Earth County District Court
                               File No. 07-CR-13-920

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

Eileen Wells, Mankato City Attorney, Linda Boucher Hilligoss, Assistant City Attorney,
Mankato, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Halbrooks, Presiding Judge; Connolly, Judge; and

Bjorkman, Judge.

                       UNPUBLISHED OPINION

BJORKMAN, Judge

      Appellant challenges her conviction of fourth-degree driving while impaired

(DWI), arguing (1) the state failed to prove beyond a reasonable doubt that she was in
physical control of a motor vehicle while under the influence of alcohol and (2) she was

denied a fair trial by the state’s use of inadmissible evidence and improper statements

during closing arguments. We affirm.

                                         FACTS

       Early in the morning of March 9, 2014, appellant Karen O’Farrell left the

Underground Bar in Mankato. A.D., a bar employee, had observed O’Farrell throughout

the evening and saw her enter her car. A.D. called the police, concerned that O’Farrell

was intoxicated and might drive away. Officer Steven Hoppe arrived at the scene first.

He discovered O’Farrell sitting in the driver’s seat with the engine running. Officer

Hoppe noticed that she smelled of alcohol and had trouble speaking clearly. He asked

O’Farrell to turn off the vehicle and give him the keys, which she did. Officer Jessica

Ellis then arrived at the scene, where she spoke with O’Farrell and administered the

horizontal gaze nystagmus (HGN) test before placing her under arrest for DWI. No other

field sobriety tests were conducted because O’Farrell has a disability that impairs her

ability to stand on one foot or walk in a straight line. While in custody, O’Farrell

consented to a urine test to determine her alcohol concentration.

       Respondent State of Minnesota charged O’Farrell with two counts of DWI. At

trial, Officer Hoppe, Officer Ellis, and A.D. testified. The state was unable to present

evidence of O’Farrell’s alcohol concentration because the Minnesota Bureau of Criminal

Apprehension witness failed to appear. Accordingly, the district court dismissed the

second DWI count, Minn. Stat. § 169A.20, subd. 1(5) (2012), on the ground that the state




                                             2
could not establish that O’Farrell’s alcohol concentration exceeded .08 without the test

results.

         O’Farrell was convicted of being in physical control of a motor vehicle while

under the influence of alcohol. O’Farrell appeals.

                                      DECISION

I.       Sufficient evidence supports O’Farrell’s conviction.

         When considering a sufficiency-of-the-evidence challenge, we view the evidence

in the light most favorable to the conviction to determine whether it would permit a jury

to reasonably conclude that the defendant was guilty of the offense. State v. Webb, 440

N.W.2d 426, 430 (Minn. 1989). We 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).

         Under Minn. Stat. § 169A.20, subd. 1(1) (2012), “[i]t is a crime for any person to

. . . be in physical control of any motor vehicle . . . when the person is under the influence

of alcohol.” O’Farrell concedes that she was in physical control of her vehicle,1 but

argues the state did not prove that her alcohol consumption impaired her ability to

physically control her vehicle. The plain language of the statute does not support this

argument, and O’Farrell cites no case law applying the statute in the manner she

advocates. The district court instructed the jury to first independently determine whether

1
  See, e.g., State v. Starfield, 481 N.W.2d 834, 838 (Minn. 1992) (defendant in physical
control of car stuck in ditch with keys in driver’s pocket); State, Dep’t of Pub. Safety v.
Juncewski, 308 N.W.2d 316, 318-20 (Minn. 1981) (defendant in physical control when
seated in driver’s seat, slumped over steering wheel, parked on the side of the road with
the key in the ignition).

                                              3
O’Farrell was in physical control of her vehicle and then decide whether she was under

the influence of alcohol at that time. See 10A Minnesota Practice, CRIMJIG 29.02

(2006). O’Farrell did not object to this instruction at trial and does not challenge it on

appeal. Accordingly, we reject O’Farrell’s novel suggestion that the state is required to

prove that a driver’s alcohol impairment prevents her from being able to physically

control a vehicle.

       We next consider whether sufficient evidence supports the jury’s finding that

O’Farrell was under the influence of alcohol at the time she was discovered in her

vehicle. A person is under the influence when he is so affected by alcohol “as not to

possess that clearness of intellect and control of himself that he otherwise would have.”

State v. Elmourabit, 373 N.W.2d 290, 293 (Minn. 1985) (quotation omitted). The state

can prove this “by showing the amount of liquor consumed (either by witnesses or

chemical tests), or by evidence of outward manifestations of intoxication, or by a

combination of both.” Id.

       A.D. testified that O’Farrell was “stumbling back and forth” and “staggering” as

she left the bar. He also described how O’Farrell was so intoxicated that night that he

found her lying on the floor of the bar, and he had to help her stand up. Officer Ellis

testified that O’Farrell’s breath smelled of alcohol, her eyes were bloodshot, and her fine

motor skills were “very slow.” When Officer Ellis asked O’Farrell for her driver’s

license, she repeatedly handed her a variety of credit cards, believing they were her

driver’s license.    Officer Ellis also testified that the results of the HGN test were

consistent with O’Farrell being under the influence. Finally, the jury reviewed video


                                            4
recordings made in the squad car and at the law-enforcement center, including footage of

O’Farrell staggering and vomiting into a garbage can. On this record, we conclude there

was sufficient evidence to prove O’Farrell was under the influence of alcohol when she

was found in physical control of her vehicle.

II.    O’Farrell was not denied a fair trial by evidentiary errors or prosecutorial
       misconduct.

       O’Farrell contends that the following errors entitle her to a new trial: (1) the

prosecutor’s elicitation of and reference to inadmissible character evidence, (2) the

prosecutor’s elicitation of and reference to unqualified expert testimony, (3) statements in

the prosecutor’s closing argument that misstated the law, and (4) statements in the

prosecutor’s closing argument that were aimed at inflaming the passions and prejudices

of the jury.

       Because O’Farrell did not object to any of these claimed errors at trial, she must

establish (1) error, (2) that is plain, and (3) affects her substantial rights. State v. Griller,

583 N.W.2d 736, 740 (Minn. 1998). If she satisfies all three prongs, we will assess

whether the error must be addressed to ensure the fairness and integrity of the judicial

proceeding. Id. An error is plain if it was “clear” or “obvious.” State v. Strommen, 648

N.W.2d 681, 688 (Minn. 2002) (quotation omitted). This often means that the error

contravenes case law, a rule, or a standard of conduct. State v. Ramey, 721 N.W.2d 294,

302 (Minn. 2006). An error affects a substantial right if it is prejudicial, meaning there is

a reasonable likelihood that the error substantially affected the verdict. Strommen, 648

N.W.2d at 688.



                                               5
       O’Farrell concedes that each claimed error, individually, is insufficient to warrant

a new trial. Even if errors considered individually may not merit a new trial, in certain

situations the cumulative effect may require reversal and the granting of a new trial.

State. v. Valentine, 787 N.W.2d 630, 642 (Minn. App. 2010) (citing State v. Erickson,

610 N.W.2d 335, 340-41 (Minn. 2000)), review denied (Minn. Nov. 16, 2010). A new

trial is warranted “only if the misconduct, when considered in light of the whole trial,

impaired the defendant’s right to a fair trial.” State v. Mayhorn, 720 N.W.2d 776, 785

(Minn. 2006) (quotation omitted). We examine whether the errors seriously affected the

fairness, integrity, or public reputation of judicial proceedings before granting relief.

State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001).

       Character evidence

       Evidence of other crimes or bad acts is not admissible to prove that a defendant

acted in conformity with his character. Minn. R. Evid. 404(b). On direct examination,

the prosecutor asked A.D. if he had seen O’Farrell impaired “[v]ery often.”           A.D.

responded, “I’d say more than the majority of the time when she comes to the

Underground she becomes impaired or is impaired.” O’Farrell argues that this testimony

constitutes inadmissible evidence of prior bad acts introduced for “the illegitimate

purpose of showing Ms. O’Farrell was likely intoxicated at the time of the present

incident.” The state argues that this testimony shows A.D. was familiar enough with

O’Farrell to tell when she is under the influence of alcohol.

       We need not decide whether A.D.’s testimony was character evidence. Even if

A.D.’s testimony was inadmissible, O’Farrell cannot establish that the error affected a


                                             6
substantial right. A.D.’s statement about O’Farrell’s past instances of impairment was a

small portion of his testimony. A.D.’s extensive testimony about O’Farrell’s impairment

on the evening in question is consistent with the testimony of Officers Hoppe and Ellis.

And the prosecutor’s single reference to the challenged statement in its closing argument

did not highlight this evidence. In the face of overwhelming evidence of O’Farrell’s

intoxication, we cannot conclude that A.D.’s reference to prior incidents of intoxication

prejudiced O’Farrell’s substantial rights.

       Expert testimony

       An expert witness may testify as to opinions that “will assist the trier of fact to

understand the evidence or to determine a fact in issue.” Minn. R. Evid. 702. An expert

must be qualified to testify based on his or her “knowledge, skill, experience, training, or

education.” Id.

       Officer Ellis testified that the HGN test identifies, with approximately 70%

accuracy, whether a person has an alcohol-concentration level over .10. Officer Ellis

stated that she learned this statistic during her law-enforcement training. When asked if

the HGN test can determine whether a driver’s alcohol-concentration level is above .08

with more than 70% accuracy, Officer Ellis responded, “I would assume by mathematics

that it would be a little bit higher.”

       O’Farrell argues that this testimony amounted to unqualified expert opinions, and

“[t]here was no indication that the officer had any foundational knowledge or training

regarding the statistical accuracy of the HGN [test].” We disagree. Officer Ellis’s first

statement did not express an expert opinion; it merely recited a statistic she learned


                                             7
during her HGN-test training. Officer Ellis’s accompanying testimony about the source

of her training provided the proper foundation, and admitting the statistical accuracy of

the test was not plain error. And Officer Ellis’s second challenged statement—that she

assumed the HGN test would predict a .08 alcohol-concentration level with more than

70% accuracy—cannot be construed as an expert opinion. The statistic was, in Officer

Ellis’s own words, based on a mathematical inference, not specialized training or

experience.   On this record, we conclude that admission of this second statement

regarding the HGN test’s accuracy was not plain error.

      Closing argument equating impairment, intoxication, and drunkenness

      A prosecutor commits misconduct by materially misstating the law in closing

argument. See Strommer, 648 N.W.2d at 689-90. O’Farrell asserts that the prosecutor

did so by conflating the legal meaning of impairment, intoxication, and drunkenness

during her rebuttal argument:

              Sitting in a car with the keys and the motor running while you
              are—and I don’t care what you want to call it—impaired,
              intoxicated—those are the same thing. Impaired, intoxicated,
              drunk—I can think of a whole bunch of other terms for it.
              They all mean the same thing. You may call it driving while
              intoxicated; you may call it driving while impaired; I may call
              it driving while under the influence. But it’s all the same.”

      We are not persuaded. First, the prosecutor’s argument merely noted that the

various terms are synonymous in common usage. Second, as the state correctly points

out, the law often uses these terms interchangeably. See, e.g., Starfield, 481 N.W.2d at

837-38 (using terms “drunk driver,” “drunken driver,” “intoxicated person”

interchangeably in discussing policy behind physical-control element of DWI offense).


                                            8
Finally, the jury instructions directed the jury to disregard any attorney’s statement of the

law that differed from the law presented in the instructions. We presume that a jury

follows the district court’s instructions. State v. Taylor, 650 N.W.2d 190, 207 (Minn.

2002). Nothing in the prosecutor’s closing argument amounted to an exhortation to

disregard the law as presented in the instructions. Accordingly, we discern no error, plain

or otherwise.

         Closing argument aimed at inflaming the passions of the jury

         Prosecutors have “considerable latitude” during closing arguments and are “not

required to make a colorless argument.” State v. Ives, 568 N.W.2d 710, 714 n.1 (Minn.

1997).     Even if some aspects of an argument seem out-of-bounds, “it is normally

regarded as harmless error unless the misconduct played a substantial part in influencing

the jury to convict the defendant.” State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).

At the same time, the state’s argument should not seek to inflame or prejudice the jury

against the defendant by making improper assertions. Id. at 606-07.

         O’Farrell argues that the prosecutor committed misconduct by describing why the

law prohibits being in physical control of a vehicle while under the influence of alcohol.

In describing the physical-control element of the offense, the prosecutor stated, “So why

is physical control of a motor vehicle illegal? Because it’s dangerous. There were over

3500—.” O’Farrell immediately objected, and the prosecutor refocused her argument.

The fact that the objection occurred before the prosecutor completed her remark renders

its admission harmless error, if an error at all.




                                               9
       O’Farrell next asserts that the prosecutor attempted to inflame the jury’s passions

by arguing that physical control of a vehicle is criminalized because “law enforcement

cannot afford to wait, to stand back and wait for a drunk driver to put that car into gear

and step on the accelerator.” We disagree. It is not unreasonable for the state to explain

why a driver can be charged with DWI—commonly understood to be a driving offense—

when the person did not operate a vehicle.         And the state’s substantive analysis is

consistent with existing case law. See, e.g., Starfield, 481 N.W.2d at 837 (explaining that

“the purpose of the offense is to ‘enable the drunken driver to be apprehended before he

strikes’” (citation omitted)); Juncewski, 308 N.W.2d at 319-20 (discussing how physical-

control offense is meant to function as a preventative measure). Because there was a

reasonable basis to address the rationale behind the law, apart from inflaming the

passions of the jury, we discern no plain error.

       Lastly, O’Farrell contends that the prosecutor’s assertion that O’Farrell and the

public “got lucky” because officers reached her before she had the chance to drive and

harm someone improperly appealed to the jury’s passion. Closing arguments must be

limited to facts in evidence and the reasonable inferences flowing therefrom. State v.

Wahlberg, 296 N.W.2d 408, 419 (Minn. 1980).            It is reasonable to infer from the

substantial evidence of O’Farrell’s impairment that she could have harmed someone if

she had driven her car that night. But the comment that the public at-large “got lucky”

comes close to insinuating that, but for police intervention, O’Farrell would have harmed

others. Nonetheless, given the overwhelming evidence of O’Farrell’s impairment, we

discern no prejudice.


                                             10
       Because we have found no prejudicial evidentiary error or prosecutorial

misconduct, we need not decide whether the cumulative impact of claimed errors requires

a new trial.

       Affirmed.




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