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This opinion will be unpublished and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
A16-1712

State of Minnesota,
Respondent,

vs.

Anthony Graham Clark,
Appellant.

Filed September 11, 2017
Affirmed
Kirk, Judge

Dakota County District Court
File No. 19HA-CR-15-90

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

James C. Backstrom, Dakota County Attorney, Ryan C. McCarthy, Da in L. Olson, Assistant
County Attorneys, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Kirk, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant challenges his conviction for first -degree test refusal following a jury trial.
Because there was sufficient evidence in the record to establish that the arresting officer had

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probable cause to believe that appellant was in physical control of the motor vehicle, we
affirm.
FACTS
In the early morning hours of January 7, 2015 , A.S. was riding northbound on Barnes
Avenue with her husband, who was driving. A.S. observed a man, later identified as appellant
Anthony Graham Clark, walking down the middle of the road straight at her vehicle and
waving his hands in the air. They slowed down to speak with appellant, who appeared
delusional, hurt, and in need of help. A.S. called 911 to report the situation . As they
continued, A.S. also noticed a vehicle in the ditch about 6 feet beyond where appellant was
walking and associated the vehicle with appellant. It was very cold outside and had recently
snowed. A.S. did not see anyone else around. A.S. and her husband were unable to stay at
the scene, but others arrived to help.
M.O. was driving to work around the same time when he saw appellant alongside the
road and pulled over to see what was going on. Appellant was about 100 yards away from
the vehicle in the ditch when M.O. arrived. M.O. did not see anyone else in the area .
Appellant appeared to be very cold, but M.O. did not allow him to get in his vehicle because
appellant seemed intoxicated. M.O. called 911.
Shortly after M.O. arrived , M.G., a county transportation worker, came upon the
vehicle in the ditch and saw appellant a short distance ahead standing on the side of the road
talking to M.O. through the passenger window of M.O.’s vehicle. M.G. stopped and allowed
appellant to sit in his vehicle. Appellant remained in M.G.’s vehicle until police officers

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arrived at the scene. M.G. did not speak to appellant, but he assumed that appellant was the
driver of the vehicle in the ditch.
Officer Miguel Guadalajara and Officer Patrick Sloan arrived separately at the scene
shortly after starting their early morning shifts. Officer Sloan saw the vehicle in the ditch and
parked his squad car on the road north of the vehicle, where M.G.’s and M.O.’s vehicles were
also stopped. Appellant was sitting in M.G.’s vehicle. Officer Sloan identified appellant and
recognized him from prior contacts. He patted appellant down and found a 5 -Hour Energy
drink, which he left in appellant’s pocket. He noticed a strong odor of an alcoholic beverage
coming from appellant.
Officer Guadalajara also observed the vehicle in the ditch and did not see anyo ne by
the vehicle. He parked his squad car on the road south of the vehicle in the ditch . As he
approached the vehicles parked on the road ahead, he saw footprints around the vehicle in the
ditch. He saw a set of footprints with the same tread outside the driver’s side door of the
vehicle in the ditch and leading from the driver’s side up toward M.G.’s vehicle. Officer
Guadalajara did not walk around the vehicle in the ditch to the passenger side and did not look
inside of it.
Officer Guadalajara spoke with appellant at the scene. Appellant did not admit or deny
driving the vehicle into the ditch , but it is undisputed that appellant’s license was cancelled
inimical to public safety at the time, and he had notice of the cancellation. Appellant was too
cold to talk, shaking badly, and breathing hard. He had bloodshot, watery eyes and smelled
of an alcoholic beverage. The officers suspected appellant had hypothermia, and Officer
Guadalajara transported him to the police department for treatment. After appellant received

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treatment, Officer Guadalajara advised appellant that they believed he drove the vehicle into
the ditch and that he was intoxicated while driving. He gave appellant a preliminary breath
test, which registered an alcohol concentration of 0.183. Appellant was placed under arrest on
suspicion of driving while impaired ( DWI) and read the implied -consent advisory. When
asked to submit to a breath test, appellant refused. Appellant was charged with first -degree
test refusal and driving after cancellation.
Officer Sloan testified at trial that w hile Officer Guadalajara transported appellant to
the police department, he investigated the scene, took photos, and searched inside the vehicle
before calling for a tow truck. Officer Sloan testified that he believed that appellant was the
driver of the vehicle in the ditch . He observed footprints in the recently fallen snow around
the general vicinity of the driver’s side door and testified that it looked like only one person
had come from the vehicle. He located the vehicle’s keys inside the vehicle, but not in the
ignition. He found a backpack in the backseat containing appellant’s cell phone and papers
and effects with appellant’s name on them. He also located 5-Hour Energy drinks in the front
passenger seat , the same type that he found on appellant during the pat-down. Officer
Guadalajara testified that he found a 5-Hour Energy drink in the back of his squad car after
appellant got out of the car at the police department.
A jury found appellant guilty of first-degree test refusal but not guilty of driving after
cancellation. This appeal follows.
D E C I S I O N
On appeal, appellant argues that the state failed to prove beyond a reasonable doubt
that the arresting officer had probable cause to believe that appellant was in physical control

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of the motor vehicle in the ditch . This is the only element of first -degree test refusal that
appellant claims was not sufficiently proved.
In considering a sufficiency-of-the-evidence challenge, this court’s review is limited
to a thorough analysis of the record to determine whether th e evidence, when viewed in the
light most favorable to the conviction, is 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 assume s
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).
The test for probable cause is whether, under the particular circumstances, the officers,
guided by their profession al experience and conditioned by their observations and the
available information, could have believed the potential arrestee committed a crime. State v.
Olson, 436 N.W.2d 92, 94 (Minn. 1989), aff’d, 495 U.S. 91, 110 S. Ct. 1684 (1990). “[W]e
review de n ovo the legal conclusion of whether probable cause existed. ” State, Lake
Minnetonka Conservation Dist. v. Horner, 617 N.W.2d 789, 795 (Minn. 2000).
Under Minn. Stat. § 169A.20, subd. 2 (2014), it is a crime for a person to refuse to
submit to a chemical test when an officer has probable cause to believe that the person was
driving, operating, or in physical control of a motor vehicle while impaired, and the person is
placed under arrest for driving while impaired. Minn. Stat. § 169 A.51, subd. 1(a), (b)(1 )
(2014).
Minnesota statutes do not define physical control, but Minnesota courts have held that
“a person is in physical control of a vehicle if he has the means to initiate any movement of
that vehicle, and he is in close proximity to the operating controls of the vehicle.” State v.

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Fleck, 777 N.W.2d 233, 236 (Minn. 2010). Temporary inoperability of the motor vehicle
does not necessarily preclude physical control. State v. Starfield, 481 N.W.2d 834, 838 (Minn.
1992). “Mere presence in or about a vehicle is insu fficient to show physical control . . . .”
Fleck, 777 N.W.2d at 236. Rather, “it is the overall situation that is determinative.” Id. (citing
Starfield, 481 N.W.2d at 838). Courts consider “the person’s location in proximity to the
vehicle; the locatio n of the keys; whether the person was a passenger in the vehicle; who
owned the vehicle; and the vehicle’s operability.” Id. (citing Starfield, 481 N.W.2d at 839).
Appellant argues on appeal that the state failed to prove beyond a reasonable doubt
that the arresting officer had probable cause to believe that appellant was in physical control
of the vehicle in the ditch because appellant was found walking down the road; no one saw
him in the vehicle or in the driver’s seat; the vehicle was immobile in a sn owy ditch; no one
saw the vehicle go into the ditch; and the keys were found in the vehicle but not in the
ignition.1 Appellant also contends that because the jury acquitted him of driving after
cancellation, the state did not prove that he had operated or driven the vehicle.2
In viewing the evidence here in the light most favorable to the conviction, and
assuming that the jury believed the state’s witnesses, there was sufficient evidence presented
at trial that Officers Sloan and Guadalajara observed or had information that: (1) there was an
immobile vehicle in a snowy ditch on the side of Barnes road in a rural location; (2) it was a

1 Appellant also argues that the vehicle did not belong to him and that his childhood friend
testified that appellant was the passenger. But the arresting officer did not have this
information prior to appellant’s arrest, and it had no bearing on the offic er’s probable cause
determination for the element of physical control.
2 We have not been asked to determine on appeal whether there was sufficient evidence to
prove that appellant drove or operated the vehicle.

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very cold day and had recently snowed; (3) witnesses reported a man in need of help walking
in the road in close proximity to the vehicle in the ditch; (4) no one saw the vehicle go into
the ditch or saw anyone in the vehicle; (5) no one saw anyone other than appellant near the
vehicle; (6) appellant exhibited signs of hypothermia and indicia of intoxication when the
officers arrived; (7) there were footprints that looked like they came from the same person in
front of the vehicle in the ditch and leading from its driver’s side up to M.G.’s vehicle, where
appellant was sitting when the officers arrived; (8) the keys were located inside the unlocked
vehicle in the ditch but were not in the ignition; (9) a backpack in the backseat of the vehicle
contained appellant’s cell phone, as well as papers and effects with his name on them; and
(10) 5-Hour Energy drinks were found in the front passenger seat of the vehicle, on appellant’s
person during a pat -down search, and in the back of Officer Guadalajara’s squad car after
appellant got out of it at the police department.3
The collective-knowledge doctrine provides that, “the entire knowledge of the police
force is pooled and imputed to the arresting officer for the purpose of determining if sufficient
probable cause exists for an arrest. ” State v. Conaway , 319 N.W.2d 35, 40 (Minn. 1982).
Applying the collective -knowledge doctrine here, based on the observations, investigation,
and experience of both officers , and the totality of the circumstances , the record shows that
Officer Guadalajara had probable cause to believe that appellant was in physical control of
the vehicle while under the influence of alcohol, sufficient to arrest appellant for DWI and to
read him the implied-consent advisory.

3 Officers also knew that appellant’s driver’s license was cancelled inimical to public safety,
but that information did not impact their probable cause determination for physical control.

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The evidence presented at trial supports the conclusion that a reasonable officer in this
situation would have entertained an honest and strong suspicion that appellant had the means
to initiate the vehicle’s movement despite its immobility, and was in a position to exercise
dominion or control over the vehicle at any time , so as to establish probable cause that
appellant was in physical control. Thus, there was sufficient evidence in the record for the
jury to reasonably conclude that the state proved beyond a reasonable doubt that the arresting
officer had probable cause to believe that appellant was in physical cont rol of the motor
vehicle, as required to find appellant guilty of first-degree test refusal.
Affirmed.