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This opinion will be unpublished and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
A17-0196

State of Minnesota,
Respondent,

vs.

Kendall Duane Perkins,
Appellant.

Filed December 26, 2017
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CR-16-8979

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

Susan L. Segal, Minneapolis City Attorney, Paula Kruchowski Barrette, Assistant City
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Worke, Presid ing Judge; Rodenberg, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant challenges his convictions of second-degree driv ing while impaired
(DWI), arguing that the jury lacked sufficient evidence to sustain his convictions and that

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the district court abused its discretion by denying his requested jury instruction explaining
physical control and inoperable vehicles. We affirm.
D E C I S I O N
A jury found appellant Kendall Duane Pe rkins guilty of two counts of second-
degree DWI and one count of careless driving. Appellant argues th at the jury lacked
sufficient evidence to co nvict him of two counts of second-degree DWI. Appellant also
argues that the district court abused its disc retion by not giving the jury an instruction
regarding the circumstances that a jury may consider when determining whether a person
was in physical control of a vehicle and whether a vehicle was inoperable.
I.
While considering a claim of insufficient ev idence, this court’s review is limited to
a careful analysis of the record to determine whether the evidence, when viewed in the light
most favorable to the conviction, is sufficient to allow the juro rs to reach the verdict they
did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume
“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). This is especially true when resolution of
the matter depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580,
584 (Minn. 1980). The reviewing court will not disturb the verdict if the jury, acting with
due regard for the presumption of innocen ce and the requirement of proof beyond a
reasonable doubt, could reasonably conclude that the defendant was guilty of the charged
offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

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A person is guilty of DWI if the person driv es or is in physical control of a motor
vehicle while the person is under the influence of alcohol or has an alcohol concentration
of .08. Minn. Stat. § 169A.20, subd. 1(1), (5) (2014).
Appellant argues that there was insufficient evidence to show that he drove or was
in physical control of a motor vehicle. Appellant argues that no one saw him driving at the
time of the crash and that the vehicle was inoperable after the crash, so he could not be in
“physical control.” Appellant’s arguments fail, because the evidence, when viewed in the
light most favorable to the conviction, shows he was driving his vehicle while intoxicated.
In March 2016, appellant’s vehicle crashed into a fence in a residential Minneapolis
neighborhood. State witness D.M.L. heard th e crash and, within moments of the crash,
saw appellant in the driver’s seat of the cras hed vehicle. The car was stuck in the moist
ground and appellant was revving the vehicle in an attempt to drive away. The vehicle had
lost one of its wheels, but appellant’s effort s were moving the vehicle a matter of inches
back and forth. D.M.L. did not witness anyone else in the car. D.M.L. went out to the
street to help appellant afte r seeing the vehicle begin to sm oke. When D.M.L. got to the
car, appellant was outside the driver’s side door and was having trouble standing.
Appellant told D.M.L. that he had a “dead le g,” so she helped him across the street and
later retrieved a chair from her apartment so that he could sit down.
Another of the state’s witnesses, S.M., wa s playing with his child in his house when
he heard the sound of a car crash. About 30 to 45 seconds later, he viewed the accident
scene from his balcony and saw the vehicle stuck in the mud. S.M. saw the driver of the
vehicle moving the car backward and forward by revving the engine. S.M. then heard the

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engine blow out and saw billowing smoke. The driver was the only person S.M. could see
in the car, and S.M. could not identify the driver with any certainty. S.M. then called the
police. S.M. saw the driver step out from the car, and the driver seemed unstable on his
feet. The driver was then assisted by a nearby neighbor.
Officer Guislain Muvundamina and his part ner arrived on the scene first, where they
found appellant seated in a ch air near the accident. Appella nt told Muvundamina that he
had been driving from his girlfriend’s house, a residence approximately two blocks away,
and he did not remember how he arrived at the scene. Wh ile speaking with appellant,
Muvundamina thought appellant was intoxicated, because appellant had bloodshot, watery
eyes; slurred speech; and trouble walking. Muvundamina performed a nystagmus test on
appellant and noticed signs of intoxication.
Assuming the jury beli eved the state’s witnesses, appe llant told an officer he was
driving at the time of the accident, and D. M.L. saw appellant in the driver’s seat
immediately after the crash. See Moore, 438 N.W.2d at 108 (holding that, while reviewing
a claim of insufficient evidence, the reviewing court presumes the jury believed the state’s
witnesses). Given this record and viewing the state’s evidence in the light most favorable
to the convictions, the evidence shows appellant was driving at the time of the crash. See
Webb, 440 N.W.2d at 430 (holding that, while reviewing a claim of insufficient evidence,
the reviewing court views the evidence in the light most favorable to the jury’s verdict).
Appellant also argues that, because his convictions were ba sed on circumstantial
evidence, his convictions should be evaluated under a heightened standard. See Bernhardt,
684 N.W.2d at 477 (determining that a highe r level of scrutiny is warranted when a

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conviction is based on circumstan tial evidence). We decline to apply this standard here,
because appellant was convicted on direct evidence—Officer Muvundamina’s testimony
that appellant admitted to driving the vehicle. State v. Horst, 880 N.W.2d 24, 40 (Minn.
2016) (noting that the circum stantial-evidence standard do es not apply when the state
proves each of the disputed elements through witness testimony on personal observations,
and the testimony allows a jury to convict without having to draw inferences).
The state’s evidence shows appellant was driv ing at the time of the crash. Appellant
did not dispute that he was under the influence of alcohol or that he did not have an alcohol
concentration of more than .08 at the time of the crash. Therefore, we affirm the jury’s
verdict of two counts of DWI because it was based on sufficient evidence.
II.
Appellant argues the district court abused its discretion by declining to give the jury
an instruction regarding the physical contro l of a vehicle and whether a vehicle was
inoperable.
A district court has “considerable latitude” in the selection of language for the jury
instructions. State v. Gatson , 801 N.W.2d 134, 147 (Minn. 2011). “[J]ury instructions
must be viewed in their entirety to determine whether they fairly and adequately explained
the law of the case.” State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). “An instruction
is in error if it materially misstates the law.” State v. Kuhnau, 622 N.W.2d 552, 556 (Minn.
2001). “[Appellate courts] evaluate [an] erro neous omission of a jury instruction under a
harmless error analysis.” State v. Lee, 683 N.W.2d 309, 316 (Minn. 2004). When faced
with an erroneous refusal to gi ve a particular jury instruction, the reviewing court must

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“examine all relevant factors to determine whether, beyond a reasonable doubt, the error
did not have a significant impact on the verdict.” State v. Shoop , 441 N.W.2d 475, 481
(Minn. 1989). If the error might have prompted the jury to reach a harsher verdict than it
might otherwise have reached, the defe ndant is entitled to a new trial. Id. The use of
criminal jury instruction guides (CRIMJIGs) is favor ed, though not mandatory. State v.
Hughes, 749 N.W.2d 307, 316 (Minn. 2008).
Appellant requested a jury instruction from State v. Starfield , which outlines
circumstances a jury may consider when de termining whether a person is in physical
control of a vehicle and whether the vehicl e is operable. 481 N.W.2d 834, 839 (Minn.
1992). The proposed instruction allows a jury to consider the following:
[The] defendant’s location in or by the vehicle, the location of
the ignition keys, whether the defendant had been a passenger
in the vehicle before it came to rest, who owned the vehicle,
the extent to which the vehicle was inoperable, and whether the
vehicle if inoperable might have been rendered operable so as
to be a danger to persons or property.

Id. While Starfield’s endorsement of these instructions might encourage their use in
physical-control cases, their exclusion in this case was not reversible error.
The judge’s decisi on not to use the Starfield instructions was proper, because the
standard CRIMJIGs accurately described the law of the case. See Gatson, 801 N.W.2d at
147. Here, the district court used instructions modeled after CRIMJIG 29.10, which is the
standard instruction for DWI cases. 10A Minnesota Practice, CRIMJIG 29.10 (2015). The
jury instructions given at tr ial for the “driving” and “physi cal control” elements are as
follows:

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A person “drives” a motor vehicle when the person exercises
physical control over the speed and direction of a motor vehicle
while it is in motion. A person is in “physical control” of a
motor vehicle when the person is present in the vehicle and is
in a position to either direct th e movement of the vehicle or
keep the vehicle in restraint. It is not necessary for the engine
to be running in order for the person to be in physical control
of the motor vehicle.

These instructions adequately describe the criteria for determining both whether a person
was driving a vehicle and whether a person wa s in physical control of a vehicle. The
question of physical control was not of sole importance, because there was direct evidence
in the record to show that appellant was actually driving. The district court was therefore
correct not to include more sp ecific instructions on physical control and new instructions
on operability, because doing so would have improperly highlighted a specific issue to the
detriment of other relevant issues. See State v. Olson, 482 N.W.2d 212, 216 (Minn. 1992)
(recommending that district courts avoid giving instructions that point the jury toward
particular evidentiary inferences). Indeed, the operability of a vehicle is only one factor to
be considered among the totality of the ci rcumstances and temporary inoperability does
not preclude criminal liability on its own. Starfield, 841 N.W.2d at 838. If the only issue
were physical control, it is possible that the Starfield instructions may have been more
appropriate, but the evidence indicated that appellant was driving at the time of the crash.
Appellant was observed in the driv er’s seat directly after the crash, and appellant told an
arresting officer that he was driving. In light of the circumstances, the district court was
correct in deciding not to give the Starfield instructions because su ch instructions might
confuse the jury.

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A judge has wide discretion to choose jury instructions, as long as they fairly and
adequately state the law. Gatson, 801 N.W.2d at 147, Flores, 418 N.W.2d at 155. Here,
the jury instructions fairly and adequately explained the law. The district court did not err
by failing to include the instructions from Starfield, and the refusal to include them was
unlikely to have resulted in a harsher verdict. See Shoop, 441 N.W.2d at 481.
Affirmed.