                          This opinion will be unpublished and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
                                     A13-2092

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  Ronald Earle Menzie,
                                       Appellant.

                                Filed December 1, 2014
                                       Affirmed
                                     Smith, Judge

                             Hennepin County District Court
                               File No. 27-CR-12-17521

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

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Elizabeth R. Johnston, Assistant County Attorney, Minneapolis, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Smith,

Judge.
                          UNPUBLISHED OPINION

SMITH, Judge

       We affirm appellant’s conviction of first-degree driving while impaired because

appellant tacitly consented to a breath test and because the prosecutor’s improper

references to appellant’s prior bad acts did not affect appellant’s substantial rights.

                                           FACTS

       In the early morning hours of June 4, 2012, a Minnesota State Trooper observed a

minivan on a freeway with its turn signal flashing. The minivan did not turn or change

lanes as indicated by its turn signal, but the trooper did observe it drifting back and forth

in its lane, touching both lane lines. The trooper activated his emergency lights, and,

after about 30 seconds, the minivan stopped.          The trooper identified the driver as

appellant Ronald Menzie. While speaking to Menzie, the trooper smelled “a strong odor

of alcoholic beverage coming from the vehicle.” He directed Menzie to exit the minvan

and stand behind it. Menzie denied having consumed any alcohol during the evening.

       After Menzie informed the trooper that he was blind in one eye, the trooper

abandoned his plan to conduct a horizontal gaze nystagmus test. Instead, he conducted a

one-legged stand test, first explaining and demonstrating the test for Menzie. After some

hesitation, Menzie agreed to perform the test, and the trooper observed that “[h]e

performed pretty well.”

       The trooper also had Menzie perform the walk-and-turn test, again explaining the

test and demonstrating it for Menzie.          The trooper observed three indicators of

impairment in Menzie’s performance of the walk-and-turn test. The trooper then arrested


                                              2
Menzie and transported him to jail. At the jail, the trooper read Menzie the Minnesota

Implied Consent Advisory. Menzie attempted to contact an attorney, using a telephone

and directories provided by the arresting police officer, but gave up after approximately

15 minutes.

         The trooper asked Menzie if he would take a breath test, but Menzie responded, “I

don’t know.” The trooper explained the test, started the testing machine, and gave

Menzie the mouthpiece. Menzie provided a 1.54-liter breath sample. The test results

showed an alcohol concentration of .131 and .134. Menzie also provided a second 1.73-

liter breath sample, and the test results showed an alcohol concentration of .131 and .133.

The state charged Menzie with first-degree driving while impaired.

         Before trial, Menzie moved to suppress the breath-test results, arguing that they

were the product of an unconstitutional warrantless search. After noting that the motion

was essentially identical to other suppression motions before various district courts in the

aftermath of the United States Supreme Court’s McNeely decision,1 the district court

denied the motion.

         During a jury trial, the district court admitted a certified copy of Menzie’s driving

record over his hearsay and confrontation-clause objections. Menzie’s driving record

indicated “three prior alcohol-related driver’s license revocations.”

         Menzie testified in his own defense, stating that he had had only two drinks of

insufficient size to become intoxicated and that he had not been truthful about drinking

when the trooper asked. He also admitted having been convicted of a felony eight years

1
    Missouri v. McNeely, 133 S. Ct. 1552 (2013).

                                               3
previously, but responded to the prosecutor’s inquiry about a 15-year-old conviction by

stating that he did not remember. When he testified that “[a]ll my felony convictions

[are] from . . . getting harassed by the police,” the prosecutor asked whether he recalled

an encounter with the police on September 18, 2011 and whether he recalled “leaving

after two days of a jury trial” in a criminal case resulting from that encounter. Menzie

denied any recollection of these events. The prosecutor asked Menzie about a warrant

issued for his arrest because of that purported flight, but Menzie refused to confirm it.

Menzie’s counsel objected at the beginning of this series of questions, but the district

court overruled the objection.

       The prosecutor also asked Menzie whether his driver’s license had been revoked

for driving under the influence, and Menzie stated that he had not possessed a driver’s

license for over 20 years because of the police “pulling [him] over a thousand times.”

When the prosecutor confronted him with his certified driving record, he stated that it

was false information.

       During his closing argument, the prosecutor referenced Menzie’s purported flight

from previous court hearings three times, including an implication that the allegation

could be proved by reference to information in official records. The prosecutor also

stated that Menzie had been convicted of test-refusal in 2000. Menzie’s counsel did not

object to any of these references.

       The jury returned a guilty verdict, and it responded to special verdict questions by

finding that Menzie had three “qualified impaired driving incidents within 10 years

immediately preceding the current offense.” The district court sentenced Menzie to 72


                                            4
months’ imprisonment, the presumptive sentence under the Minnesota Sentencing

Guidelines.

                                     DECISION

                                             I.

       Menzie contends that the district court erred by refusing to suppress his breath test

results.   The federal and state constitutions protect citizens against unreasonable

warrantless searches. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A breath test is a

search. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402, 1413

(1989). “But police do not need a warrant if the subject of the search consents.” State v.

Brooks, 838 N.W.2d 563, 568 (Minn. 2013), cert. denied (134 S. Ct. 1799 (U.S. 2014)).

“For a search to fall under the consent exception, the State must show by a preponderance

of the evidence that the defendant freely and voluntarily consented.” Id. “Whether

consent is voluntary is determined by examining the totality of the circumstances.” Id.

(quotation omitted).

       Although Menzie concedes that he consented to the search by providing breath

samples, he argues that his consent was not voluntary because the police officer coerced

him by reading the implied consent advisory and then handing him the breath-testing

mouthpiece even though Menzie had expressed uncertainty about whether to consent and

had been unable to reach an attorney. The Minnesota Supreme Court has expressly

rejected the notion that the implied-consent advisory is unconstitutionally coercive. See

id. at 569-72. The supreme court has also noted that merely submitting to a breath test is

an indication that the subject consented. See id. at 572 (“[T]he fact that someone submits


                                             5
to a search after being told that he or she can say no to the search supports a finding of

voluntariness.”).

       Menzie’s inability to reach an attorney did not undermine his consent. Although

consultation with an attorney “reinforces” a finding of consent, id. at 571, Minnesota law

requires only that an individual be given the opportunity to attempt to reach an attorney;

it does not require that they succeed, see Friedman v. Comm’r of Pub. Safety, 473

N.W.2d 828, 835 (Minn. 1991) (“The right to counsel will be considered vindicated if the

person is provided with a telephone prior to testing and given a reasonable time to contact

and talk with counsel. If counsel cannot be contacted within a reasonable time, the

person may be required to make a decision regarding testing in the absence of counsel.”

(quotation omitted)); see also Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 842

(Minn. App. 1992) (“[T]he relevant factors [for determining whether an individual has

been given reasonable time to contact an attorney] focus on both the police officer’s

duties in vindicating the right to counsel and the defendant’s diligent exercise of the

right.” (emphasis added)), review denied (Minn. Oct. 20, 1992). Here, Menzie was given

an opportunity to contact an attorney, but he abandoned his attempts after 15 minutes.

We therefore conclude that, when viewing the totality of the circumstances, Menzie

voluntarily consented when he abandoned his attempts to reach an attorney and provided

breath samples.

                                            II.

       Menzie argues that the prosecutor committed reversible misconduct by repeatedly

referring to inadmissible prior bad acts. Although he objected to the prosecutor’s initial


                                            6
line of questioning, Menzie did not object to the prosecutor’s continuing references to

Menzie’s purported flight to avoid court hearings. We apply a modified plain-error

review to claims of unobjected-to prosecutorial misconduct.           State v. Ramey, 721

N.W.2d 294, 302 (Minn. 2006). The defendant bears the burden to “demonstrate both

that error occurred and that the error was plain.” Id. “An error is plain if it . . .

contravenes case law, a rule, or a standard of conduct.” Id. (quotation omitted). “[W]hen

the defendant demonstrates that the prosecutor’s conduct constitutes an error that is plain,

the burden would then shift to the state . . . to show that there is no reasonable likelihood

that the absence of the misconduct in question would have had a significant effect on the

verdict of the jury.” Id. (quotation and citations omitted).

       Menzie contends that the prosecutor’s repeated questioning and references during

closing arguments to the allegation that Menzie had fled from a previous prosecution was

plain error. A prosecutor’s arguments “must be based on the evidence produced at trial,

or the reasonable inferences from that evidence.” State v. Porter, 526 N.W.2d 359, 363

(Minn. 1995). “Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person to show that the person acted in conformity therewith on a

particular occasion.” State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006) (citing Minn. R.

Evid. 404(b)). “Further, such evidence may not be introduced if its probative value is

substantially outweighed by its tendency to unfairly prejudice the factfinder.” Id. (citing

Minn. R. Evid. 403). When the state seeks to introduce prior-bad-acts evidence, it must

provide notice, “clearly indicate what the evidence will be offered to prove,” show “clear

and convincing evidence that the defendant participated in the prior act,” demonstrate


                                              7
that the evidence is “relevant and material to the state’s case,” and the district court must

determine that the probative value of the evidence is not “outweighed by its potential

prejudice to the defendant.” Id. at 686.

        The prosecutor here met none of the requirements for introducing evidence that

Menzie had fled from a prior prosecution. He provided no notice of an intention to

introduce evidence of Menzie’s purported flight, he did not explain the purpose of the

evidence or show how such evidence would be relevant to the state’s case, and he

produced no evidence at all—let alone clear and convincing evidence—to counter

Menzie’s denials. In the absence of evidence, the prosecutor resorted to insinuations of

evidence, implying that proof could be found in state databases by typing in Menzie’s

name.

        The state contends, however, that the prosecutor was allowed to inquire into

Menzie’s purported flight from a prior prosecution as part of its efforts to show three

qualifying prior impaired driving incidents. It cites caselaw supporting the state’s right to

show a defendant’s guilt by pointing to flight to avoid prosecution as evidence of

consciousness of guilt. See, e.g., State v. McDaniel, 777 N.W.2d 739, 746 (Minn. 2010);

State v. McTague, 190 Minn. 449, 453, 252 N.W. 446, 448 (1934). But the cases the

state cites permit the state to use evidence of flight to show consciousness of guilt for a

present offense, not a prior offense.2       Moreover, the state did not need to show


2
  The state asserts that the prosecutor was permitted to introduce both evidence of
Menzie’s flight to avoid the prior prosecution and Menzie’s flight to avoid the present
prosecution by failing to appear for his initial trial date. Although he objected to the
question on relevance grounds at the initial trial, Menzie does not challenge the

                                             8
consciousness of guilt of an offense to meet its burden to show qualified prior impaired

driving incidents because that burden could be met solely through introduction of

Menzie’s driving record, showing three prior license revocations for driving while under

the influence of alcohol. See Minn. Stat. § 169A.03, subds. 21, 22 (2012) (defining

“qualified impaired driving incident” to include alcohol-related administrative license

revocations).

       The state also argues that the prosecutor was permitted to impeach Menzie’s

credibility by pointing to his purported prior flight to avoid prosecution after Menzie

denied knowledge of any other license-revocation proceedings.            But although the

Minnesota Rules of Evidence allow for questions on such matters during cross-

examination, they prohibit any party from introducing extrinsic evidence of prior bad acts

other than criminal convictions to impeach the credibility of testifying witnesses. See

Minn. R. Evid. 608(b).      No evidence appears in the record that Menzie had been

convicted of fleeing to avoid prosecution. Since the prosecutor’s closing arguments

“must be based on the evidence produced at trial, or the reasonable inferences from that

evidence,” Porter, 526 N.W.2d at 363, the prosecutor exceeded his bounds by repeatedly

referencing Menzie’s purported flight during his closing argument.

       Menzie also argues—and the state concedes—that the prosecutor plainly erred by

referring to Menzie’s prior test-refusal conviction from 2000. But the state argues that


prosecutor’s question about his purported failure to appear for the initial trial date. And
whatever the merits of questioning about an initial failure to appear for the current trial,
they are irrelevant to the question of whether the prosecutor was permitted to question
Menzie about an alleged failure to appear in a previous trial.

                                             9
this error and any error in the prosecutor’s references to Menzie’s purported flight to

avoid a previous prosecution did not affect Menzie’s substantial rights. To determine

whether there is a reasonable likelihood that misconduct affected the jury’s verdict, “we

consider the strength of the evidence against the defendant, the pervasiveness of the

improper suggestions, and whether the defendant had an opportunity to (or made efforts

to) rebut the improper suggestions.” State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007).

      We find it implausible that the prosecutor’s errors affected the verdict.        As

Menzie’s counsel conceded during oral argument, the evidence against Menzie was

overwhelming. The trooper conducted a proper stop after observing Menzie weaving.

The trooper obtained a consensual breath sample indicating that Menzie was under the

influence of alcohol. And Menzie’s driving record showed three prior alcohol-related

license revocations.   These facts alone support each of the elements of Menzie’s

conviction, and it is unlikely that the prosecutor’s improper “digs” to Menzie’s purported

flight or his isolated reference to a 2000 test-refusal conviction had any effect on the

jury’s deliberations. We therefore conclude that the prosecutor’s misconduct did not

affect the verdict, and we decline to reverse Menzie’s conviction.

      We nevertheless use this opportunity to admonish the prosecutor for his egregious

misconduct. “[A] prosecutor is a minister of justice whose obligation is to guard the

rights of the accused as well as enforce the rights of the public.” Ramey, 721 N.W.2d at

300 (quotation omitted). “We expect that prosecutors . . . are aware of our case law

proscribing particular conduct.” Id. at 301. Caselaw clearly establishes that a prosecutor

commits misconduct “by means of insinuations and innuendoes which plant in the minds


                                            10
of the jury a prejudicial belief in the existence of evidence which is otherwise

inadmissible.” State ex rel. Black v. Tahash, 280 Minn. 155, 157, 158 N.W.2d 504, 506

(1968). The prosecutor here at least three times referred to inadmissible evidence that

Menzie had fled from previous court proceedings. His insinuation that this inadmissible

evidence could be easily confirmed in state law-enforcement databases was particularly

reprehensible.   Although we decline to reverse Menzie’s conviction, we share the

sentiments expressed in State v. Merrill, where the supreme court deplored “unfortunate,

inexplicable, and, even worse, totally unnecessary” conduct of the prosecutor and warned

that future instances might compel the courts to consider reversal in the exercise of their

supervisory powers.     428 N.W.2d 361, 372-73 (Minn. 1988).          As in Merrill, the

overwhelming evidence of the defendant’s guilt makes the prosecutor’s misconduct more

concerning, not less. Our holding should therefore not be misunderstood as condoning

the prosecutor’s conduct. Justice deserves better.

       Menzie also raises numerous additional arguments in a lengthy pro se

supplemental brief.    To the extent that these arguments differ from those already

addressed, we have carefully considered them and hold that none of them warrants

reversal.

       Affirmed.




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