State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0851

State of Minnesota,
Respondent,

vs.

Dalmar Hassan Dhimbil,
Appellant.

Filed May 1, 2017
Affirmed
Reilly, Judge

Ramsey County District Court
File No. 62-CR-15-4204

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

John Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney, Joshua
L. Weichsel (certified student attorney), St. Paul, Minnesota (for respondent)

Hillary B. Parsons, Caplan & Tamburino Law Fi rm, P.A., Minneapolis, Minnesota (for
appellant)

Considered and decided by Reilly, Pres iding Judge; Ross, Judge; and Kalitowski,
Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant challenges his impaired-driving and test-refusal felony convictions on the
grounds that (1) the test-refusal statute is unconstitutional, (2) the evidence produced at
trial was insufficient to suppor t the verdict, (3) the test-refu sal jury instructions were
plainly erroneous, and (4) the state committed misconduct during cross-examination. We
affirm.
D E C I S I O N
I. Minnesota’s test-refusal statute survives appellant’s constitutional
challenge.

Appellant raises a substantive due-proce ss challenge to Minnesota’s test-refusal
statute. The United States and Minnesota Constitutions guarantee that no individual shall
be deprived of life, liberty, or property without due process of law. U.S. Const. amend.
XIV, § 1; Minn. Const. art. I, § 7. Minnesota law criminalizes an individual’s refusal to
submit to a chemical breath test when an officer has probable cause to believe that a person
is driving, operating, or physically contro lling a motor vehicle while impaired, and the
officer reads the individual th e implied-consent advisory. See Minn. Stat. §§ 169A.20,
subd. 2, .51, subd. 1 (2016). In State v. Bernard, the Minnesota Supreme Court ruled that
the test-refusal statute does not offend substantive due process. 859 N.W.2d 762, 773-74
(Minn. 2015), aff’d sub nom. Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). Appellant
concedes that the Bernard holding forecloses his presen t constitutional challenge; he is
therefore not entitled to reversal of his convictions on constitutional grounds.

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II. The evidence presen ted at trial was suffici ent to prove beyond a
reasonable doubt that appellant was guilty of impaired driving and test
refusal.
A. Standard of Review
Appellant challenges the sufficiency of the evidence. An appellate court examining
the sufficiency of the evidence “carefully examine[s] the record to determine whether the
facts and the legitimate inferences drawn fro m them would permit th e jury to reasonably
conclude that the defendant was guilty beyond a reasonable doubt of the offense of which
he was convicted.” State v. Fox , 868 N.W.2d 206, 223 (Minn. 2015), cert. denied, 136
S. Ct. 509 (2015). “We view th e evidence presented in the light most favorable to the
verdict, and assume that the [jury] disbe lieved any evidence that conflicted with the
verdict.” Id.
B. Impaired-driving conviction
To establish that appellant is guilty of impaired driving, the state must prove beyond
a reasonable doubt that appellant drove, oper ated, or was in physical possession of a car
while impaired. Minn. Stat. § 169A.20, subd. 1(1) (2016). A person is impaired if the
person consumed “enough alcohol so that the [person’s] ability or capacity to drive was
impaired in some way or to some degree” and, as a result, “does not possess that clearness
of intellect and control . . . that [t he person] otherwis e would have.” State v. Ards , 816
N.W.2d 679, 686 (Minn. App. 2012).
The state produced evidence of the following at tria l: On June 7, 2015, at
approximately 2:30 a.m., appellant and two other individuals were traveling westbound on
Highway 94 in a silver Toyota Camry regist ered to appellant. A witness, J.R., saw

4
appellant’s car “[d]riving out of control, ” making “very sporadic turns,” driving at
excessive speeds, and making “quick lane change s . . . even into almo st the ditch.” J.R.
called 911 to report the incident . While on the ph one with the 911 dispatcher, J.R. saw
appellant’s car “spin out, potentially even hit the . . . median barrier, and spin and go into
the ditch.” J.R. saw appellant exit from th e driver’s side of the car, while the two
passengers exited from the passenger’s side. Minnesota State Patrol Trooper Jim Swanson
responded to the emergency call and, upon arriving at the scene, saw appellant’s car in the
ditch and the car’s three occupants standing on the side of the road.
Swanson noticed that appellant was leaning heavily on the two other individuals for
support and smelled of alcohol. One of the pa ssengers told the officer that appellant had
been driving the car. Swanson asked the three men if they were wearing seat belts, and
asked to see their shoulders to check for seat-belt marks. Appellant had marks on his upper
left chest and shoulder, indicating that he was s eated in the front driver’s side of the car.
Swanson then conducted field sobriety tests, which appellant failed, and administered a
preliminary breath test, which revealed an alcohol concentration of 0.256. Based upon his
training and experience, Swanson concluded th at appellant was driv ing while impaired.
See State v. Smith , 814 N.W.2d 346, 352 (Minn. 2012) (recognizing that police officers
may rely on their training and experience to determine whether a particular factor supports
a reasonable suspicion of criminal activity). Appellant does not dispute that he was under
the influence of alcohol at the time of the incident. The evidence in the record sufficiently
proves beyond a reasonable doubt that appellant was driving while impaired.

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C. Test-refusal conviction
Appellant also argues that the evidence is insufficient to sustain his conviction of
test refusal. Our standard of review vari es depending on whether the elements of the
offense were proved by circumstantial evidence or by direct evidence. Loving v. State, ___
N.W.2d ___, ___, 2017 WL 1104913, at *2 (M inn. 2017) (articulating the separate
standards of review). Where the defendant does not expressly refuse a breath test, the state
must prove test refusal by relyin g on circumstantial evidence. See State v. Ferrier , 792
N.W.2d 98, 101 (Minn. App. 2010), review denied (Minn. Mar. 15, 2011). But in this case,
because direct evidence support’s appellant’s conviction, we must conduct “a painstaking
review of the record to determine whether the evidence and reasonable inferences drawn
therefrom, viewed in the light most favorable to the verdict, were sufficient” to sustain the
verdict. Loving, 2017 WL 1104913, at *3. The record conclusively shows that the police
officer testified that appellant smelled of alcohol and then led him through a series of field
sobriety tests, which appellant failed. A pa ssenger in appellant’s car also informed the
officer that appellant had been driving the car. The officer admini stered a preliminary
breath test, which registered an alcohol con centration of 0.256. The officer arrested
appellant on suspicion of impaired driving and transported him to the Ramsey County Law
Enforcement Center. The offi cer read appellant the implie d-consent advisory and asked
appellant to take a breath test. Appellant refused. Direct evidence sufficiently establishes
appellant’s guilt beyond a reasonable doubt.

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III. The jury instructions we re not plainly erroneous.
The district court is afforded “considerable latitude” when selecting language in jury
instructions and when “determining the propriety of a specific instruction.” Alholm v. Wilt,
394 N.W.2d 488, 490 (Minn. 1986). We review a district court’s decision to give a
particular jury instruction for an abuse of discretion, State v. Koppi, 798 N.W.2d 358, 361
(Minn. 2011), and we review the jury instructions as a whole to determine if they accurately
state the law in a manner that is understandable to the jury, State v. Kelley, 855 N.W.2d
269, 274 (Minn. 2014).
Appellant did not object to the jury instructions at trial and we therefore review for
plain error. See State v. Taylor, 869 N.W.2d 1, 15 (Minn. 2015) (articulating that we review
unobjected-to jury instructions for plain error). An appellate court may review unobjected-
to jury instructions under a plain-error analys is if the defendant establishes that (1) there
was an error, (2) it was plain, and (3) the pl ain error affected his substantial rights. State
v. Davis, 864 N.W.2d 171, 176 (Min n. 2015). If all three prongs are satisfied, we may
address the error to ensure fairness and th e integrity of the judicial proceedings. State v.
Griller, 583 N.W.2d 736, 740 (Minn. 1998).
Appellant’s argument fails under a plain-error analysis. The state charged appellant
with test refusal under Minn. Stat. § 169A.20, subd. 2. The district court instructed the
jury on the elements of the crime, including that (1) the police officer had probable cause
to believe the defendant drove, operated, or was in physical contro l of a car while under
the influence of alcohol, (2) the PBT indicate d an alcohol concentration of 0.08 or more,
(3) the officer read appellant the implied-cons ent advisory, (4) the o fficer requested that

7
appellant submit to a chemical breath test, (5 ) appellant refused to submit to a chemical
breath test, and (6) the act took place in Minnesota. These jury instructions accurately state
the law. See Minn. Stat. §§ 169A.20, subd. 2 (“It is a crime for any pers on to refuse to
submit to a chemical test of the person’s . . . breath . . . under section 169A.51.”), .51, subd.
1(b)(1) (“[A] test may be requir ed . . . when an officer has probable cause to believe the
person was driving, operating, or in physical control of a motor vehicle . . . and . . . the
person has been lawfully placed under arrest for [impaired driving.]”); see also 10
Minnesota Practice, CRIMJIG 29.22 (articulating elements of test refusal) (2016). We
therefore conclude that no error occurred.
Because appellant has not met his burden of establishing that an error occurred, we
need not consider whether the error was plai n, or whether appellant ’s substantial rights
were affected. See Montanaro v. State, 802 N.W.2d 726, 732 (Minn. 2011) (“[I]f we find
that any one of the requirements [under the plain-error test] is not satisfied, we need not
address any of the others.”).
IV. The state did not commit miscon duct during cross-examination.
During cross-examination, th e prosecutor asked appellant if the state’s witnesses
were lying when they identified appellant as the driver. The following exchange occurred:
THE PROSECUTOR: Sir, you told [the officer] that there was
a fourth person who was driving the car, correct?
THE DEFENDANT: I never did.
THE PROSECUTOR: So, sir, yo ur testimony here today is
that [the officer] lied to us ye sterday when he was here in the
courtroom?

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THE DEFENDANT: He did.
. . . .
THE PROSECUTOR: Sir, you’re claiming before this jury
that everything that your friend Hassan Osman said yesterday
in front of this jury was a lie? Yes or no?
. . . .
THE DEFENDANT: Yes, he did. He lied.
Appellant argues that the prosecutor’s inquiry constitutes impermissible “were they
lying” questions. Appellant did not raise this objection at trial and we review unobjected-
to prosecutorial misconduct allegations under a modified plain-error standard. State v.
Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Appe llant bears the burden of proving that
there was an error and that it was plain. Id. If appellant demonstr ates plain error, the
burden shifts to the state to prove the erro r did not affect his substantial rights. Id. If all
three prongs of the modified plain-error test are satisfied, we may correct the plain error
“only if it seriously affect s the fairness, integrity, or public reputation of judicial
proceedings.” State v. Peltier, 874 N.W.2d 792, 804 (Minn. 2016) (quotations omitted).
We determine that the prosecutor did not commit prosecutorial misconduct. “Were
they lying” questions generally “have no probative value and are improper and
argumentative because they do nothing to assist the jury in assessing witness credibility in
its fact-finding mission and in determining the ultimate issue of guilt or innocence.” State
v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999). Bu t Minnesota has not adopted a “blanket
rule of law” prohibiting such questions beca use “[s]ituations may arise where ‘were they
lying’ questions may have a probative value in clarifying a particular line of testimony, in

9
evaluating the credibility of a witness claimi ng that everyone but the witness lied or
[where] the witness flatly denies the occurrence of events.” Id. “[S]uch questions are
permitted when the defendant [places] the issu e of the credibility of the state’s witnesses
in central focus.” State v. Morton, 701 N.W.2d 225, 233 (Minn. 2005) (quoting Pilot, 595
N.W.2d at 517); see also State v. Leutschaft , 759 N.W.2d 414, 422 (Minn. App. 2009)
(noting that the “central focus” test applie s when the defense expressly accuses opposing
witnesses of fabrications or falsehoods).
We determine that the prosecutor’s ques tions were not improper because appellant
placed witness credibility squarely in issue. Appellant testified during cross-examination
that the state’s witnesses were lying. The defense counsel asserted, in both his opening
statement and closing argument, that testimony from the state’s witnesses was “coerced.”
Defense counsel argued in his opening statement that:
Our one thing that we basically disagree with the State on is,
[the] claim [from the state’s witnesses] that [appellant] was
driving his car. And, basically, anybody who says -- comes in
here and testifies that [appellant] was driving his car either was
coerced into doing it . . . or [was] not in a position to see what
they [may] claim that they saw.
And during closing argument, defense counsel again asserted that Osman’s statement that
appellant was driving was a “coerced statemen t.” The credibility of the state’s witnesses
was a “central focus” of the trial and the prosecutor’s line of questioning assisted the jury
in evaluating the credibility of those witnesses. See Morton, 701 N.W.2d at 233 (noting
that “were they lying” questions are permissi ble and may assist the jury in weighing a
defendant’s own veracity when the defendant places the credibility of the state’s witnesses

10
in central focus); see also 10 Minnesota Practice, CRIMJIG 3.12 (2016) (“[j]jurors are the
sole judges of whether a witness is to be believed and of the weight to be given a witness’s
testimony.”).
Because we conclude that an error did not occur, there can be no finding that the
error was plain. See Pilot, 595 N.W.2d at 518 (“Failure to meet the first prong of our plain
error analysis requiring proof of ‘error,’ obviat es the need to address the remaining plain
error factors.”).
Even assuming plain error, appellant is not entitled to relief because his substantial
rights were not violated. See State v. Mosley , 853 N.W.2d 789, 801 (Minn. 2014)
(determining that, even if plain error occu rred, relief was not warranted because the
defendant’s substantial rights were not violated ). An error is prejudicial if there is a
reasonable likelihood that the absence of th e misconduct in question would have had a
significant effect on the outcome of the case. Griller, 583 N.W.2d at 741. If an appellate
court concludes that “the jury would have re ached the same verdict even if the state had
not asked [defendant] . . . ‘were they lying’ questions,” then the state has satisfied the third
prong. Morton, 701 N.W.2d at 235-36. In this case, appellant does not dispute that he had
been drinking, he failed the field sobriety tests, and the PBT re gistered an alcohol
concentration well-above the legal limit. Witnesses placed appellant in the driver’s seat of
the car, and seat-belt marks on appellant’s left shoulder substantiate that testimony. The
officer had reason to believe that appellant was driving while impaired and read him the
implied-consent advisory. Appellant refused to submit to a chemical breath test. There is
no reasonable likelihood that the jury woul d have reached a diffe rent verdict if the

11
prosecutor had refrained from asking appellant if the state’s witnesses were lying about
him being the driver and, therefore, appellant’s substantial rights were not affected.
Accordingly, we determine that the record fails to disclose any plain error affecting
appellant’s substantial rights and we affirm his conviction.
Affirmed.