                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A16-0575

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  Tchad Tu Henderson,
                                       Appellant.

                               Filed January 30, 2017
                  Affirmed in part, reversed in part, and remanded
                                     Kirk, Judge

                              Anoka County District Court
                               File No. 02-CR-14-4578

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

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Douglas V. Hazelton, Halberg Criminal Defense, Bloomington, Minnesota (for appellant)

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

Kirk, Judge.

                                    SYLLABUS

      The manipulation of the steering wheel of a moving motor vehicle by a passenger

constitutes “operation” of a motor vehicle under Minn. Stat. § 609.21 (2012).

                                     OPINION

KIRK, Judge

      Appellant Tchad Tu Henderson appeals his criminal vehicular operation (CVO)

convictions. He argues that: (1) the district court erred when it denied his motion to
dismiss the complaint for lack of probable cause; (2) there was insufficient evidence

presented at trial to support the district court’s finding that he operated the motor vehicle;

and (3) the district court committed plain error when it convicted him of CVO as charged

in count 1 of the complaint. Appellant asks this court to reverse his convictions and dismiss

the charges against him. Since appellant was tried and convicted, his probable cause

challenge is not relevant on appeal. See State v. Holmberg, 527 N.W.2d 100, 103 (Minn.

App. 1995), review denied (Minn. Mar. 21, 1995). Because we conclude that there was

sufficient evidence presented at trial to support the court’s finding that appellant operated

the motor vehicle, we affirm. However, the district court erred when it entered a conviction

on count 1 of the complaint, and we reverse entry of that conviction and remand to the

court to amend the warrant of commitment and to determine if resentencing is necessary.

                                          FACTS

       On July 22, 2014, appellant was charged with one count of CVO causing great

bodily harm due to grossly negligent conduct, in violation of Minn. Stat. § 609.21, subd.

1(1) (2012), and three counts of CVO causing great bodily harm as a result of operating a

motor vehicle in a negligent manner while under the influence of alcohol negligent/alcohol,

in violation of Minn. Stat. § 609.21, subd. 1(2)(i) (2012). Appellant moved to dismiss the

charges, arguing that the state failed to establish probable cause that he operated the motor

vehicle.   Following a contested hearing, the district court concluded that there was

sufficient probable cause to support the charges and denied appellant’s motion.

       The district court held a one-day court trial on November 18, 2015. Appellant

stipulated that the injuries B.H., B.F., and A.S. sustained in the crash constituted great


                                              2
bodily harm, that the crash occurred on July 20, 2014 in Anoka County, and that he was

under the influence of alcohol at the time of the crash. The district court considered the

following evidence on the remaining contested element of whether appellant operated the

vehicle:

       B.H. testified that she went to a bar with B.F. to meet appellant and A.S. B.H. did

not consume alcohol that night, but the others did. At the bar, appellant appeared to be

drunk. He was slurring his words, tripping over his own feet, and he did not seem very

coherent. When the bar closed, the group decided that B.H. would drive them to appellant’s

friend’s house because she was sober. B.H. did not have a valid driver’s license. Appellant

was the front-seat passenger and began arguing with B.H. over the directions to his friend’s

residence.

       B.H. testified that she pulled over at a gas station, verified appellant’s friend’s

address, and started the navigation system on appellant’s cellphone. Before pulling out of

the gas station, B.H. instructed everyone to put on their seatbelts, which made appellant

angry and argumentative, but he complied.

       After B.H. pulled out of the gas station, the arguing subsided, but then appellant told

B.H. that she missed a turn, and he “took the steering wheel and yanked it towards” himself.

This caused B.H. to lose control of the vehicle and it crashed, landing upside down. B.H.

testified that when appellant pulled the steering wheel she had both hands on the wheel but

could not resist because of the force he used.




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        Officer Adam Jacobson of the Coon Rapids Police Department testified that after

the crash, B.H. provided a preliminary breath test sample in an ambulance on scene, and

that the results indicated that she did not have any alcohol in her system.

        Officer William Hammes of the Coon Rapids Police Department testified that he

identified appellant at the scene of the crash. At that time, appellant told Officer Hammes

that he could not remember what happened. Officer Hammes also identified B.H. and

spoke to her in the ambulance. B.H. relayed the same version of events that she testified

to at trial.

        Officer Hammes testified that he went to the hospital to obtain a statement from

appellant. Appellant told Officer Hammes that “out of nowhere they crashed” and that

after the crash B.H. yelled at him about grabbing the steering wheel. Appellant said that

he could not remember if he grabbed the steering wheel. After appellant was released from

the hospital, he was transported to the Anoka County Jail and during the drive to the jail

he began insisting to Officer Hammes that he did not grab the steering wheel.

        Appellant initially testified that he was not arguing with B.H. after they left the bar,

but then he testified that they were arguing, but it was not serious. Appellant testified that

he wanted B.H. to pull over so they could figure out how to get to his friend’s house.

Appellant then described the accident, testifying that he was still arguing with B.H., who

was distracted and missing turns. Then, just before the crash, appellant saw the telephone

pole and wire and said, “look out,” because he believed the vehicle was going to hit the

pole.




                                               4
       Appellant denied touching the steering wheel and claimed that B.H.’s version of the

accident was a lie. Appellant testified that he was drinking alcohol before the accident and

that he believed his alcohol concentration was a 0.15 or 0.16. He also confirmed that right

after the crash, he told law enforcement that he could not remember what had happened,

and that at the hospital he told law enforcement that he could not remember grabbing the

steering wheel.

       The district court found appellant guilty of all four counts of CVO, entered

convictions on all four counts, and sentenced appellant on counts 2-4.

       This appeal follows.

                                          ISSUES

       I.     Was there sufficient evidence presented at trial to support the district court’s

finding that appellant operated the motor vehicle?

       II.    Did the district court commit plain error when it convicted appellant of CVO

as charged in count 1 of the complaint?

                                        ANALYSIS

I.     There was sufficient evidence presented at trial to support the district court’s
       finding that appellant operated the motor vehicle.

       When a sufficiency-of-the-evidence claim involves a question of whether the

defendant’s conduct meets the statutory definition of an offense, an appellate court is

presented with a question of statutory interpretation that is reviewed de novo. See State v.

Hayes, 826 N.W.2d 799, 803 (Minn. 2013). When interpreting a statute, we give its words

and phrases their plain and ordinary meaning. State v. Peck, 773 N.W.2d 768, 772 (Minn.



                                              5
2009). The threshold issue in a statutory-interpretation analysis is whether the statute’s

language is ambiguous. Id. In considering a claim of insufficient evidence, this court’s

review is limited to a thorough analysis of the record to determine whether the evidence,

when viewed in the light most favorable to the conviction, was sufficient to allow the jurors

to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The

reviewing court must assume that “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). This

is especially true when resolution of the matter depends mainly on conflicting testimony.

State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).

       “[Appellate courts] use the same standard of review in bench trials and in jury trials

in evaluating the sufficiency of the evidence.” State v. Palmer, 803 N.W.2d 727, 733

(Minn. 2011). The reviewing court will not disturb the verdict if the factfinder, acting with

due regard for the presumption of innocence and for the requirement of proof beyond a

reasonable doubt, could reasonably conclude that the defendant was guilty of the charged

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

       Appellant was charged with four counts of CVO under Minn. Stat. § 609.21, subds.

1(1) (“A person is guilty of criminal vehicular . . . operation . . . if the person causes injury

to . . . another as a result of operating a motor vehicle . . . in a grossly negligent manner[.]”),

1(2)(i) (“A person is guilty of criminal vehicular . . . operation . . . if the person causes

injury to . . . another as a result of operating a motor vehicle . . . in a negligent manner

while under the influence of . . . alcohol.”). Minn. Stat. § 609.21 (2012) does not contain

a definition of “operation.” These subdivisions have been renumbered and their language


                                                6
has been modified since appellant was charged and convicted, but the new statutory

language did not add a definition of operate. See Minn. Stat. § 609.2113, subds. 1(1),1

1(2)(i) (2014).2

       Appellant argues that there was insufficient evidence presented at trial that he

operated the vehicle. Appellant argues that, even if he grabbed the steering wheel, he was

only in physical control of the vehicle and was not operating it, which is insufficient to

support a CVO conviction. Appellant argues that this court should use the definition of

“operate” provided in CRIMJIG 29.02 (driving while under the influence of alcohol

(DWI)), which provides that “[a] person ‘operates’ a motor vehicle when the person

manipulates or activates any of the controls of a motor vehicle necessary to put the vehicle

into motion.” 10A Minnesota Practice, CRIMJIG 29.02 (2016). Appellant asserts that,

under this definition, his conduct cannot be considered to be operating a motor vehicle

because moving the steering wheel of a vehicle is necessary to keep a vehicle in motion,

but is not necessary to put a vehicle into motion.

       Relying on West Bend Mutual Insurance Company v. Milwaukee Mutual Insurance

Company, appellant further argues that operation of a motor vehicle under Minn. Stat.

§ 609.21 requires a person to control both the vehicle’s steering wheel and its pedals. 384

N.W.2d 877, 879 (Minn. 1986). Accordingly, because B.H. did not “invite” him to control


1
  “A person is guilty of [CVO] resulting in great bodily harm . . . if the person causes great
bodily harm to another not constituting attempted murder or assault as a result of operating
a motor vehicle . . . in a grossly negligent manner.”
2
  “A person is guilty of [CVO] resulting in great bodily harm . . . if the person causes great
bodily harm to another not constituting attempted murder or assault as a result of operating
a motor vehicle . . . in a negligent manner while under the influence of . . . alcohol.”

                                              7
the steering wheel while she drove, he only interfered with her operation of the vehicle, but

did not operate the vehicle himself. See West Bend, 384 N.W.2d at 880 (“Ordinarily,

however, a vehicle has only one operator, and, unless a passenger is invited to share in that

operation, or circumstances create a plausible justification for the passenger’s assisting in

the vehicle’s operation, the vehicle is not considered to be operated by the passenger.”).

Appellant asks this court to vacate his CVO convictions.

       The state argues that appellant operated the vehicle when he asserted influence over

the steering wheel because “[m]oving the steering wheel is necessary to make a vehicle

function and propel forward or backward in a legal or organized manner.” Further, the

state asserts that appellant’s physical-control argument is misplaced because physical-

control cases typically involve vehicles that are not in motion at the time of the offense but

can be easily moved. See, e.g., State v. Woodward, 408 N.W.2d 927, 928 (Minn. App.

1987) (finding that evidence that appellant was standing outside a vehicle with the engine

running and a flat tire was sufficient to prove physical control). The state asserts that the

district court properly concluded that appellant’s behavior constituted operation of the

motor vehicle.

       The state further argues that appellant’s conduct fits the plain meaning of

“operation” under Minn. Stat. § 609.21 and notes that appellant’s reliance on West Bend is

misplaced because the case does not apply to DWI cases. As this court recognized in Ives

v. Commissioner of Public Safety, “[w]e do not consider that West Bend controls our

decision in this case. Exclusionary clauses in insurance policies are interpreted narrowly

against an insurer. In contrast, the laws prohibiting a person from driving while intoxicated


                                              8
are given the broadest possible effect and liberally interpreted in favor of the public

interest.” 375 N.W.2d 565, 567 (Minn. App. 1985) (citations omitted). We find the state’s

argument to be persuasive that the plain meaning of operation should be applied to CVO

crimes.

       Like the Ives court found in the DWI context, we find that West Bend too narrowly

construes “operate” to apply its definition to a CVO case. Although West Bend involved a

situation where the front-seat passenger grabbed the steering wheel and caused the vehicle

to crash, the West Bend court only determined the meaning of “operate” for the purpose of

establishing insurance coverage, not for the purpose of establishing criminal liability. West

Bend, 384 N.W.2d at 879. Furthermore, the West Bend court did not conclude that a front-

seat passenger’s interference with a vehicle’s steering wheel can never constitute operation

of a vehicle. See id. at 880 (“If the driver asks his passenger to assist or share in the

operation of the vehicle, as, say, by steering the moving automobile . . . perhaps it might

be said that the driver and the passenger are both ‘operating’ the automobile.”).

       There is no definition of “operation” of a motor vehicle in either the CVO or DWI

statutes. See Minn. Stat. § 609.21; Minn. Stat. §§ 169A.01-.78 (2012). And although

CRIMJIG 29.02 defines “operation” as pertains to DWI offenses, CRIMJIG 11.68 does not

define “operation” as pertains to CVO offenses. 10 Minnesota Practice, CRIMJIG 11.68

(2016) (defining the elements of CVO resulting in great bodily harm). Additionally, DWI

is a traffic offense criminalized in chapter 169A, while CVO is a chapter 609 offense. CVO

is codified under the heading, “Homicide; Bodily Harm; Suicide,” a category significantly




                                             9
different than “Driving While Impaired.” Compare Minn. Stat. §§ 609.18-.22 (2012), with

ch. 169A.

       In defining operation in a criminal context, this court noted in In the Matter of the

Welfare of T.J.B. that “‘[t]o drive . . . require[s] the most direct personal participation in

piloting the vehicle, ‘to operate’ would require something less, and ‘to be in physical

control’ would require the least.” 488 N.W.2d 1, 2 (Minn. App. 1992), review denied

(Minn. Sept. 30, 1992). This court concluded in T.J.B. that a defendant sitting behind the

steering wheel and starting the engine of a motor vehicle, and turning on the lights was

sufficient to establish operation of a motor vehicle. 488 N.W.2d at 3.

       This court also concluded in Ives that a passenger exerts physical control over a

motor vehicle when he steps on the accelerator while another person is driving the vehicle.

375 N.W.2d at 567. But importantly, the Ives court was not asked to determine whether

interfering with the accelerator of a moving vehicle was sufficient to establish operation of

the motor vehicle, it was only asked to determine whether it established physical control.

The Ives decision does not hold that interfering with a moving vehicle’s accelerator is

insufficient to meet the definition of “operate.” Neither of these cases preclude the

conclusion that, even in a DWI case, manipulation of the steering wheel of a moving

vehicle could constitute operation. Further, they do not compel the conclusion that such

conduct could not constitute operation of a vehicle in a CVO case.

       Although there is no caselaw or statutory authority directly defining “operation” of

a motor vehicle under the CVO statute, we conclude that the district court did not err when

it determined that appellant’s conduct was more than physical control and that it was


                                             10
sufficient to show that appellant was operating the vehicle as required under Minn. Stat.

§ 609.21. See Ives, 375 N.W.2d at 567 (“A drunk passenger who interferes with the safe

operation of a motor vehicle by actively tampering with its controls poses no less of a

hazard to the public safety than any other drunk driver.”). We agree that the manipulation

of the steering wheel of a moving motor vehicle by a passenger constitutes “operation” of

a motor vehicle under Minn. Stat. § 609.21. This conclusion is supported by the policy of

giving impaired driving laws the broadest possible effect in favor of public safety, the plain

meaning of the word “operate,” and the fact that the vehicle was not stationary when

appellant manipulated the steering wheel.

       We also conclude that appellant’s sufficiency-of-the-evidence challenge fails under

this definition. B.H. testified at trial that she was sober at the time of the accident and that

appellant caused the accident by grabbing the steering wheel and jerking it toward him.

B.H.’s version of events remained consistent from immediately after the accident through

trial. In contrast, appellant’s version of events changed over time. Accordingly, viewing

the evidence in the light most favorable to the conviction, and assuming the district court

believed B.H.’s testimony and disbelieved appellant’s conflicting testimony, there was

sufficient evidence presented to the district court to conclude beyond a reasonable doubt

that appellant manipulated the moving vehicle’s steering wheel.

II.    The district court erred when it entered a conviction on count 1 of the
       complaint.

        Appellant asserts, without citing to any legal authority, that it was plain error for

the district court to convict him of all four counts of CVO because there were only three



                                              11
persons other than appellant injured in the accident, and it is improper for him to be

convicted for injuring himself. The state argues that appellant forfeited this argument on

appeal because he failed to provide sufficient legal argument. See State v. Krosch, 642

N.W.2d 713, 719 (Minn. 2002); State v. Modern Recycling, Inc., 558 N.W.2d 770, 772

(Minn. App. 1997); see also State v. Beaulieu, 859 N.W.2d 275, 278-79 (Minn. 2015). But

appellant cannot have forfeited this issue. See Spann v. State, 740 N.W.2d 570, 573 (Minn.

2007).

         According to the record, count 1, CVO causing great bodily harm due to gross

negligence, was intended to be a catchall for either one or all three of the victims because

it did not require the state to prove that appellant was under the influence of alcohol as

required in counts 2-4.

         We conclude that it was error for the district court to enter conviction on count 1.3

Minn. Stat. § 609.04 (2012) “bars multiple convictions under different sections of a

criminal statute for acts committed during a single behavioral incident.” State v. Jackson,

363 N.W.2d 758, 760 (Minn. 1985). “When the defendant is convicted on more than one

charge for the same act the court is to adjudicate formally and impose sentence on one

count only.” Spann, 740 N.W.2d at 573 (alteration omitted) (quotation omitted). In this

case, the district court entered three convictions, one for each victim, under Minn. Stat.

§ 609.21, subd. 1(2)(i), and also entered an additional conviction, intended to be a catchall,

under Minn. Stat. § 609.21, subd. 1(1). Entering the conviction for count 1 (the catchall)


3
 The record does not contain a transcript of the sentencing hearing, but the warrant of
commitment indicates that convictions were entered on all four counts of the complaint.

                                              12
was error because it was a second conviction under a different section of a criminal statute

for crimes committed during a single behavioral incident. See Jackson, 363 N.W.2d at

760. This court “may vacate or modify a sentence on many grounds, including that the

sentence is unreasonable or inappropriate, or that such a result is in the interest of fairness

and uniformity.” State v. Bertsch, 707 N.W.2d 660, 667 (Minn. 2006) (citations and

quotation omitted); see also Minn. Stat. § 244.11, subd. 2(b) (2016); Minn. R. Civ. App.

P. 103.04 (“On appeal from or review of an order the appellate courts may review . . . any

other matter as the interest of justice may require.”). We reverse the entry of conviction

on count 1 and remand to the district court to amend the warrant of commitment, and to

resentence, if necessary. See State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984)

(holding that, although a defendant may be “convicted on more than one charge for the

same act,” the district court must only “adjudicate formally and impose sentence on one

count”).

                                      DECISION

       Because the district court did not err in finding that appellant’s conduct constituted

operation of a motor vehicle under Minn. Stat. § 609.21 and there was sufficient evidence

presented at trial to support appellant’s four CVO convictions, we affirm them. But

because count 1, CVO causing great bodily harm due to grossly negligent conduct, arose

out of the same behavioral incident and is related to the same victims as appellant’s other

CVO convictions, we reverse the entrance of conviction on count 1, remand to the district

court to amend the warrant of commitment, and to determine if resentencing is necessary.

       Affirmed in part, reversed in part, and remanded.


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