                         This opinion will be unpublished and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
                                    A14-1438

                                  State of Minnesota,
                                      Respondent,
                                           vs.

                                Maceo Valdez Jackson,
                                     Appellant.

                                Filed August 24, 2015
                                      Affirmed
                                  Halbrooks, Judge


                            Hennepin County District Court
                              File No. 27-CR-13-15049

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

Susan L. Segal, Minneapolis City Attorney, Jennifer Saunders, Assistant City Attorney,
Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Connolly, Judge.

                       UNPUBLISHED OPINION

HALBROOKS, Judge

      Appellant challenges his convictions of second-degree test refusal, second-degree

driving while impaired (DWI), and driving after revocation, arguing that (1) Minnesota’s
test-refusal statute is unconstitutional under Missouri v. McNeely and federal and state

due-process guarantees; (2) the district court erred by failing to give a specific unanimity

instruction on DWI; and (3) the jury instructions on driving-after-revocation constituted

plain error. We affirm.

                                         FACTS

       Alerted by the sound of squealing tires around 2:00 a.m., a Minnesota Department

of Transportation sign crew supervisor looked up and saw a dark green sports utility

vehicle roll over on a ramp from I-94 to I-35W/Highway 65 southbound. The SUV

landed upright and after about 30 seconds, continued driving. The supervisor noted

smoke coming out of the hood but lost sight of the SUV as it approached Franklin

Avenue. He reported the crash when it occurred and called again to relay that the SUV

was leaving the scene. A state trooper was dispatched to the area.

       Upon arrival, the trooper found a dark green Mercury Mountaineer parked on the

right shoulder of the freeway near Franklin Avenue with its hazard lights blinking. The

vehicle had “dents, marks, indentations” and scratches that were “consistent with a

vehicle that had been in a crash . . . [and] had possibly rolled.” A man later identified as

appellant Maceo Jackson was standing next to the driver’s side of the vehicle. No one

was in the driver’s seat, but keys were in the ignition, and the car was running. A woman

later identified as Jackson’s wife was seated in the front passenger seat, wearing her

seatbelt. Neither Jackson nor his wife was injured.

       The trooper spoke with Jackson and detected an overwhelmingly strong odor of

alcohol, bloodshot and watery eyes, and slurred and incoherent speech. The trooper


                                             2
asked a series of questions related to the crash, and Jackson responded that he was

coming from a bar in Minneapolis, had had “a couple of beers and a couple of shots,”

“was going between 55 and 60 miles an hour,” and had been side-swiped, which caused

the crash. Jackson failed the horizontal nystagmus and walk-and-turn tests, would not

attempt the one-legged stand, and refused to blow into the preliminary-breath-test

instrument.   The trooper placed Jackson under arrest on suspicion of DWI and

transported him to the Hennepin County jail.

      The trooper read Jackson the Minnesota implied-consent advisory and gave him

30 minutes, a phone, and phone books to contact an attorney. The trooper then asked

Jackson 20 times whether he would submit to a breath test.         Receiving neither an

affirmative nor negative response from Jackson, the trooper deemed his conduct a refusal.

      The state charged Jackson with second-degree DWI (test refusal) in violation of

Minn. Stat. § 169A.20, subd. 2 (2012); second-degree DWI (under the influence) in

violation of Minn. Stat. § 169A.20, subd. 1(1) (2012); and driving after revocation in

violation of Minn. Stat. § 171.24, subd. 2 (2012). Jackson moved to dismiss the test-

refusal count, arguing that Minnesota’s test-refusal statute is unconstitutional.     The

district court denied the motion, and a jury found Jackson guilty. The district court

convicted Jackson of all three counts and sentenced him to 365 days in jail, with 275 days

stayed. Jackson now appeals his convictions.




                                            3
                                    DECISION

                                            I.

       Jackson challenges his conviction of second-degree refusal to submit to chemical

testing under Minn. Stat. § 169A.20, subd. 2. He argues that the district court erred by

denying his motion to dismiss because Minnesota’s criminalization of test refusal is

unconstitutional. But Jackson acknowledges that the Minnesota supreme court held

otherwise in State v. Bernard, 859 N.W.2d 762 (Minn. 2015), and that this court “is

plainly bound by the Minnesota Supreme Court.”

       Our supreme court held in Bernard that “a warrantless breath test does not violate

the Fourth Amendment because it falls under the search-incident-to-a-valid-arrest

exception.” 859 N.W.2d at 766 (reasoning that the exception allows the police “to

conduct a full search of the person who has been lawfully arrested” (quotation omitted)).

With respect to Jackson’s arguments that criminalization of test refusal violates

substantive due-process rights under the United States and Minnesota Constitutions, our

supreme court stated that there is no fundamental right to refuse a constitutional search.

Id. at 773.

       The supreme court therefore applied rational-basis review to the appellant’s due-

process challenge, explaining that the test-refusal statute would be upheld if it is not

arbitrary or capricious and is a reasonable means to a permissive government objective.

Id. The supreme court determined that Minnesota has a compelling public-safety interest

in keeping impaired drivers off of roadways, that securing chemical tests to determine

alcohol concentration is reasonably related to that interest, and that criminalizing test


                                            4
refusal to encourage submission to chemical tests also furthers that interest. Id. at 773-

74. The supreme court concluded that “the test refusal statute is a reasonable means to a

permissive object and that it passes rational basis review” and is therefore constitutional.

Id. at 774. The Bernard decision is dispositive of Jackson’s argument that the Minnesota

test-refusal statute is unconstitutional.   The district court properly denied Jackson’s

motion to dismiss the test-refusal count.

                                             II.

       Jackson argues that the district court committed reversible error by not giving a

specific unanimity instruction with respect to DWI (under the influence).1 Under this

statute, “[i]t is a crime for any person to drive, operate, or be in physical control of any

motor vehicle . . . when . . . the person is under the influence of alcohol.” Minn. Stat.

§ 169A.20, subd. 1(1) (emphasis added). Jackson argues that because members of the

jury could have disagreed on whether he was driving, operating, or in physical control of

a vehicle, his right to a unanimous verdict was violated.

       Jackson did not request a specific unanimity instruction, but he did object to the

standard DWI instructions because “with the second charge where those are three

different acts, and so then we’re asking the jury to ambiguously deliberate on three

different acts, and we won’t know if [it’s a unanimous verdict].” Jackson proposed

omitting language referencing “operating” or being “in physical control of” a vehicle,



1
   The district court gave the jury a standard unanimity instruction: “In order for you to
return a verdict, whether guilty or not guilty, each juror must agree with that verdict.
Your verdict must be unanimous.”

                                             5
leaving only “drive” in the instructions. The district court rejected this argument and

instructed the jury based on the applicable CRIMJIGs.

       A district court has “considerable latitude” in selecting language for jury

instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). Appellate courts

“review the jury instructions in their entirety to determine whether the instructions fairly

and adequately explain the law of the case.” State v. Milton, 821 N.W.2d 789, 805

(Minn. 2012) (quotation omitted).

       “Jury verdicts in all criminal cases must be unanimous.” State v. Pendleton, 725

N.W.2d 717, 730 (Minn. 2007) (citing Minn. R. Crim. P. 26.01, subd. 1(5)).              But

“unanimity is not required with respect to the alternative means or ways in which the

crime can be committed.” State v. Begbie, 415 N.W.2d 103, 106 (Minn. App. 1987)

(quotation omitted), review denied (Minn. Jan. 20, 1988); see also Schad v. Arizona, 501

U.S. 624, 636, 111 S. Ct. 2491, 2499 (1991) (holding that “certain statutory alternatives

are mere means of committing a single offense, rather than independent elements of the

crime”).   Jackson argues that the instructions here allowed the jury to convict him

without unanimously agreeing which essential elements were satisfied.

       The essential element at issue here is that the defendant drove, operated, or had

physical control of a vehicle.      Based on the plain language of the statute, driving,

operating, or having physical control are distinct means of satisfying a single element.

As the case was argued at trial, Jackson either drove the car or he did not. The case was

not about physical control. But in any event, “[t]he term ‘physical control’ is more

comprehensive than either the term to ‘drive’ or to ‘operate.’” State v. Fleck, 777


                                             6
N.W.2d 233, 236 (Minn. 2010). One cannot drive or operate a car without having

physical control over it. By finding Jackson guilty, all jurors agreed that Jackson, at a

minimum, had physical control of the vehicle.

       Here, the jury did not need to select from distinct sets of factual allegations, each

with a separate defense. See, e.g., State v. Stempf, 627 N.W.2d 352, 354 (Minn. App.

2001) (defendant was charged with one count of drug possession based on alleged acts

occurring at two different times and two different locations with two different defenses).

Because driving, operating, or having physical control are three means of committing a

single offense and not distinct elements, the instructions given fairly and adequately

explained the law of the case. The district court did not err by not giving a specific

unanimity instruction.

                                               III.

       Jackson argues that the district court erred by instructing the jury that he could be

found guilty of driving after revocation under Minn. Stat. § 171.24, subd. 2, if he “drove,

operated, or was in physical control of a motor vehicle” while his license was revoked

because “physical control” is not a means of violating this statute. Jackson did not object

to the jury instruction. Accordingly, our review is for plain error. See State v. Clark, 755

N.W.2d 241, 251 (Minn. 2008). Under that standard, an appellant must demonstrate that

there is (1) error, (2) that is plain, and (3) the error affected his substantial rights. State v.

Griller, 583 N.W.2d 736, 740 (Minn. 1998). Plain error requires reversal only if “the

fairness, integrity, or public reputation of the judicial proceeding is seriously affected.”

State v. Barrientos-Quintana, 787 N.W.2d 603, 611 (Minn. 2010) (quotation omitted).


                                                7
       Minnesota law provides that a person who is on notice that his driver’s license has

been revoked and who “disobeys the order by operating in this state any motor vehicle,

the operation of which requires a driver’s license” is guilty of a misdemeanor. Minn.

Stat. § 171.24, subd. 2. The district court here instructed the jury that being in physical

control of the vehicle would violate the statute. The state concedes that the instruction

therefore contained an error that was plain. We agree. We next consider whether the

error affected Jackson’s substantial rights.

       Jackson argues that his substantial rights were affected because the jury could

have found that he was in physical control of the vehicle but did not drive or operate it.

The state contends that Jackson’s substantial rights were not affected and that the error

did not have a significant effect on the verdict because as the case was argued at trial,

Jackson “was either the driver of that vehicle before and during the accident or it was

someone else. This was not a case of physical control.” The record supports the state’s

contention.

       No evidence presented at trial would support a finding that Jackson was in

physical control of the vehicle but did not drive or operate it. The state contended at trial

that Jackson was the driver who had rolled the SUV and attempted to continue driving.

Jackson was found standing next to the SUV on the shoulder of a busy freeway. The

keys were in the ignition and the vehicle was running. No one was in the driver’s seat.

The front passenger seat was occupied. No one else was present. Jackson answered a

number of questions about the crash and driving conduct as if he had been the driver.




                                               8
And he repeatedly asserted on the side of the freeway not that he had not been driving,

but that the trooper had not seen him driving.

       Jackson has the “heavy burden” of showing that “the error was prejudicial and

affected the outcome of the case.” Griller, 583 N.W.2d at 741. Considering the evidence

presented and the arguments made at trial, Jackson has not met his heavy burden of

showing that the erroneous jury instruction affected his substantial rights.

       Affirmed.




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