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This opinion will be unpublished and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
A16-1552

State of Minnesota,
Respondent,

vs.

David Brandyn Earley,
Appellant.

Filed August 14, 2017
Affirmed in part, reversed in part, and remanded
Cleary, Chief Judge

Hennepin County District Court
File No. 27-CR-15-22922

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Chie f Judge; Schellhas, Judge; and Randall,
Judge.


 Retired judge of the Minnesota Court of Ap peals, 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
CLEARY, Chief Judge
On appeal from his conviction of two fi rst-degree driving-while-impaired (DWI)
offenses, appellant David Brandyn Earley argues that the district court erred by restricting
his closing argument and by formally adjudicating him guilty of both DWI counts. Because
the restriction of Earley’s closing argument was not reversible error, we affirm the closing-
argument restriction. But because the district court erroneously convicted Earley of both
DWI counts, we reverse and remand for correction of the warrant of commitment.
FACTS
Earley was charged with two counts of first-degree DWI after a police officer
stopped the vehicle he was driving on August 16, 2015. Count 1 alleged that Earley drove
a motor vehicle while having an alcohol concentr ation of 0.08 or more at that time, or as
measured within two hours of the time of driv ing, in violation of Minn. Stat. § 169A.20,
subd. 1(5) (2014). Count 2 a lleged that Earley drove a mo tor vehicle while under the
influence of alcohol in violation of Minn. Stat. § 169A.20, subd. 1(1) (2014). Earley
stipulated that he had three prior qualified driving offenses from 2011, 2012, and 2014.
A jury trial commenced in June 2016. The state called Officer Heckert as its only
witness. Officer Heckert testified that he was on patrol in Edina during the early morning
hours of August 16, 2015, when he saw a ve hicle swerving within its own lane. He
followed the vehicle and observed it signal to ma ke a right turn into a parking lot. When
the vehicle slowed down to make the turn, O fficer Heckert noticed that the driver-side
3
brake light did not illuminate. The vehicle turned into the parking lot, and Officer Heckert
activated his emergency lights and conducted a traffic stop.
Officer Heckert testified that he appr oached the front, driver-side window and
noticed a “strong consumed alcoholic beverage odor” coming from the vehicle, but could
not tell from whom the odor was coming. He identified the male driver as Earley and asked
him to produce his driver’s license. As Earley retrieve d his license, Officer Heckert
observed that Earley had reserved movements and had difficulty getting the license out of
his wallet. He also noticed that Earley had red, bloodshot, watery, glassy-looking eyes and
slurred speech. Earley admitted that he had consumed alcoholic beverages earlier in the
night.
Officer Heckert testified that he confir med Earley’s identity and asked Earley to
step out of the vehicle. Earley complied a nd, while Earley was outside of the vehicle,
Officer Heckert noticed a “strong consumed alcoholic beverage odor” coming from Earley.
He again observed that Earley had red, glassy, watery eyes and mumbling, slurred speech.
Officer Heckert explained that he decided to conduct field sobriety tests because of his
observations of Earley.
Officer Heckert testified that Earl ey’s performance on the horizontal-gaze-
nystagmus test increased his suspicion that Earley was im paired by alcohol because he
observed six out of six indicati ons of possible impairment. O fficer Heckert testified that
his suspicion that Earley was impaired also increased based upon Earley’s performance on
the walk-and-turn test because Earley broke the starting position, missed heel-to-toe
multiple times, and failed to complete the turn as instructed. Finally, Officer Heckert
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testified that Earley completed the one-legged-stand test without showing any indications
of impairment. A video showing the traffic stop and Earley’s performance on the field
sobriety tests was published and played for the jury.
Officer Heckert explained that he suspec ted that Earley might be impaired by
alcohol, arrested him, and transported him to the Edina police station to conduct a breath
test. At the station, he read Earley the implied-consent advisory, and Earley indicated that
he understood his rights. Earley stated that he wished to ex ercise his right to speak with
an attorney and was given access to the police department’s phone, his own cell phone, and
multiple phone directories. Af ter about 45 minutes, Earley st opped seeking an attorney.
Officer Heckert asked Earley if he would take a breath test and Earley consented. Officer
Heckert testified that Earley’s breath test was performed using the DataMaster DMT
(DataMaster) and that the results of the te st indicated that Earley had an alcohol
concentration of 0.11 grams of alcohol per 210 liters of breath.
Officer Heckert testified about the Data Master training he underwent, how the
DataMaster operates, and how he administered Earley’s breath test. He testified that the
DataMaster has both infrared and fuel-cell te chnology, but that th e fuel-cell technology
was disabled after the Minnesota Bureau of Criminal Apprehension (BCA) decided that
infrared testing was sufficient and instructed law enforcement across th e state to turn off
the fuel-cell technology. During cross-examination, Earley’s counsel elicited the following
testimony:
COUNSEL: But you were trained that the fuel cell option is
highly sensitive and specific to alcohols, correct?
OFFICER HECKERT: Yes.
5
COUNSEL: And you were specifically trained when it’s used
along with the infrared tech nology, it allows for better
interferent detection, correct?
OFFICER HECKERT: Correct.
. . . .
COUNSEL: . . . [O]n this machine used with Mr. Earley, that
second technology that when us ed together with the infrared
technology is a better detector of alcohol deterrents was turned
off, correct?
OFFICER HECKERT: Correct.

Portions of a video taken at the Edina police station were published for the jury and showed
where the DataMaster was located.
After Officer Heckert’s testimony, the st ate and defense both rested. During the
defense’s closing argument, Earley’s counsel argued that the BCA trained law enforcement
officers that using infrared technology and fuel-cell technology in combination better
detects alcohol as opposed to other potentia l interference. The state objected to the
statement and argued that it cite d to facts that were not in evidence. The court sustained
the objection and ordered the jury to disregard defense counsel’s statement.
On June 23, 2016, the jury returned a guilty verdict, fi nding Earley guilty of both
DWI counts. On June 29, 2016, the district court orally pronounced Earley’s sentence and
committed Earley to the custody of the commissioner of corrections for 46 months for his
conviction of count 2, driving while under the influence of alcohol in violation of Minn.
Stat. § 169A.20, subd. 1(1). The following day, the distri ct court filed a warrant of
commitment, which indicated that the district court entered a judgment of conviction on
both DWI counts, but imposed only one 46-month sentence for count 2. Earley now
appeals.
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D E C I S I O N
I. Restriction of the Defense’s Closing Argument
We first address Earley’s argument that th e district court erre d by restricting his
closing argument. When a defendant has objected to the limitations placed on his closing
argument, an appellate court reviews those li mitations under the harmless-error standard.
State v. Bustos, 861 N.W.2d 655, 660 n.1 (Minn. 2015). Minnesota appellate courts have
applied two different harmless-error tests depending on whether the alleged error
implicates a constitutional right. State v. Morrow, 834 N.W.2d 715, 729 n.7 (Minn. 2013).
If the alleged “error implicates a constitutional right, a new trial is required unless the State
shows beyond a reasonable doubt that the error was harmless.” Id. But, when the alleged
“error does not implicate a constitutional right, a new trial is required only when the error
substantially influenced the jury’s verdict.” Id. Earley argues that the error in restricting
the scope of his closing argument deprived him of his constitutional rights to present a
complete defense and to the effective assistance of counsel. The state disagrees and argues
that the alleged error does not implicate any constitutional right. Because we conclude that
the alleged error was harmless beyond a re asonable doubt, we do not determine which
harmless-error standard applies or whether the district court erred by restricting Earley’s
closing argument.
“An error is harmless beyond a reasonable doubt if the jury’s verdict was surely
unattributable to the error.” State v. Sanders, 775 N.W.2d 883, 887 (Minn. 2009). When
applying the constitutional harmless-error standard, we must determine not whether a jury
would have convicted the defendant without the error, but whether the error reasonably
7
could have impacted the jury’s decision. State v. Caulfield, 722 N.W.2d 304, 314 (Minn.
2006). For the reasons explained below, we c onclude that the jury’s verdict was surely
unattributable to the alleged error in restricting Earley’s closing argument.
At the beginning of the trial, the district court properly in structed the jury that it
must reach its verdict by considering the ev idence and explained that the attorneys’
statements and arguments are not evidence. See State v. McDaniel, 777 N.W.2d 739, 749-
50 (Minn. 2010) (considering appellant’s assertion that the prosecutor argued facts not in
evidence and concluding that there was no pr ejudicial error where the district court
instructed the jury that lawyers’ opening statements and closing arguments are not
evidence). Between the close of the evidence and the parties’ closing arguments, the
district court again instructed the jury that the a ttorneys’ arguments we re not evidence.
Because the district court clearly and repeated ly instructed the jury that it was not to
consider the parties’ closing arguments as evidence upon which th e verdict was to be
decided, the alleged error in restricting Earley’s closing argument did not affect the jury’s
consideration of the evidence.
During the trial, the district court allowed Earley to present evidence that attempted
to call into question the accura cy of his breath test. Earley ’s counsel thoroughly cross-
examined Officer Heckert regarding his DataMaster training and the manner in which the
DataMaster operates. During cross examination, the offi cer admitted that he had no
training in computer science, fo rensic testing, forensic scienc e, or engineering, that the
DataMaster did all of the analyzing and testing of the breath sample, and that he “essentially
. . . rel[ied] entirely on that machine.” He ex plained that the breath test could be affected
8
by chemical and radio frequency interferenc e, but that he would not know whether
anything had interfered with the test absent th e DataMaster’s report of such interference.
Officer Heckert further testified that the Da taMaster includes fuel-cell technology, which
is highly sensitive to alcohols and allows for better interferent detection when used along
with infrared technology. And, during recro ss, Officer Heckert adm itted that he did not
know why the BCA chose to use the DataMast er to conduct breath tests or why the BCA
instructed law enforcement to turn off the fuel-cell technology.
The district court also allo wed Earley to continue this theme in his closing argument
by permitting defense counsel to argue that: (1) the BCA inst ructed law enforcement to
turn off the fuel-cell technology; and (2) Officer Heckert could not provide any reason why
the BCA chose to forego the use of the fuel-cell technology.
In sum, the district court allowed Earl ey to present consid erable evidence and
argument tending to call into question the accuracy of his breath test. The jury’s decision
to render a guilty verdict shows that the jury rejected evidence tendi ng to show that the
breath test was unreliable and found the evidence presented sufficient to establish, beyond
a reasonable doubt, that Earley had an alcoho l concentration equal to or above 0.08 and
drove a vehicle while impaired.
The jury’s verdict was supported by overwhelming evidence. Officer Heckert
testified that Earley appeared to be intoxicated, smelled of alcohol, and admitted that he
had been drinking. The jury also viewed a video of Earley performing the field sobriety
tests and heard the officer’s testimony explai ning that Earley’s performance on the tests
indicated that he was likely impaired. Finally, the jury heard considerable testimony from
9
the officer regarding his DataMaster training and the DataMaster’s internal checks, which
ensure that the machine’s measurements are accurate and unaffected by interference.
Here, the alleged error in su staining the state’s objection resulted in the striking of
a single statement from Earley’s closing argument. The alleged error had no effect on the
presentation of the evidence and did not prej udice Earley because the state presented
overwhelming evidence of Earley’s guilt and the district court properly instructed the jury
to base its verdict on the evid ence and not on either attorney ’s statements or arguments.
Because the jury’s verdict was surely unattributable to any error in restricting Earley’s
closing argument, we deny Earley’s request for a new trial.
II. Entering Conviction s on Both DWI Counts
We next address Earley’s argument that the district court violated Minn. Stat.
§ 609.04 (2014) by entering convictions on both DWI counts. Whether section 609.04 has
been violated presents a legal question th at appellate courts review de novo. State v.
Chavarria-Cruz, 839 N.W.2d 515, 522 (M inn. 2013). Section 609.04 provides that,
“[u]pon prosecution for a crime, the actor may be convicted of either the crime charged or
an included offense, but not bo th.” Minn. Stat. § 609.04, su bd. 1. An included offense
includes “[a] lesser degree of the same crim e” and “[a] crime necessarily proved if the
crime charged were proved.” Id., subd. 1(1), (4). The Minnesota Supreme Court has
interpreted section 609.04 to “bar[] 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).
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The conviction prohibited by section 609.04 is not a guilty verdict, but rather a
formal adjudication of guilt. State v. Pflepsen, 590 N.W.2d 759, 767 (Minn. 1999). When
a jury finds a defendant guilty of more than one charge under the same statute for the same
act, the district court should formally adjudicate the de fendant guilty of, and impose a
sentence for, only one count. Spann v. State, 740 N.W.2d 570, 573 (Minn. 2007); State v.
LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984).
At the sentencing hearing, the district cour t stated that Earley was convicted of first-
degree DWI, operating a motor vehicle under the influence of alcohol in violation of Minn.
Stat. § 169A.20, subd. 1(1), and ordered that Earley be committed to the custody of the
commissioner of corrections for 46 months. The district court’s oral pronouncement makes
clear that Earley was formally adjudicated guilty of, and sentence d for, count 2. But
because the district court did not address count 1 in its oral pronouncement, it is unclear
whether the district court also adjudicated Earley guilty of count 1.
Appellate courts “look to the official judgm ent of conviction in the district court file
as conclusive evidence of whether an offense has been formally adjudicated.” Spann, 740
N.W.2d at 573 (quotations omitted). Here, the warrant of commitment provides that Earley
was formally convicted of both DWI counts. Because the DWI counts alleged violations
within the same criminal statute for acts committed during a single behavioral incident, the
district court erred by entering convictions on both counts. See State v. Clark, 486 N.W.2d
166, 170-71 (Minn. App. 1992) (holding that Minn. Stat. § 609.04 prohibited convicting
appellant of both a drivin g-while-under-the-influence charge and a blood-alcohol-
concentration charge where the charges arose from one behavioral incident). We reverse
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and remand with instructions to correct the warrant of commitment to reflect judgment of
conviction of one count of first-degree DWI.
Affirmed in part, revers ed in part, and remanded.