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This opinion will be unpublished and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
A17-0960

State of Minnesota,
Respondent,

vs.

David Paul Corbine,
Appellant.

Filed April 30, 2018
Affirmed
Connolly, Judge

Clay County District Court
File No. 14-CR-16-2088

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

Brian J. Melton, Clay County Attorney, Alexander J. Stock, Assistant County Attorney,
Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellant Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Halbrooks, Judge; and
Connolly, Judge.
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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges his conviction of two counts of driving while intoxicated ,
arguing that improper testimonial evidence and prosecutorial misconduct constitute plain
errors that warrant a new trial. Appellant also filed a pro se supplemental brief raising
several issues. We affirm.
FACTS
On June 18, 2016, a Moorhead police officer stopped appellant David Paul Corbine
for driving 66 m.p.h. in a 40 m.p.h. zone. The officer testified that appellant smelled like
alcohol and had slurred speech. Appellant admitted that he had one whiskey drink. The
officer asked appellant to take a field sobriety test. During the Horizontal Gaze Nystagmus
(HGN) test, appellant displayed all of the clues for impairment. During the counting-
backwards test, appell ant became confused and asked the officer, “Why don’t you just
arrest me?” Because the officer believed appellant was intoxicated, he arrested appellant.
At the jail, appellant submitted to what the transcript refers to as a “DataMaster
Transportable” (DMT) test, which measures the alcohol concentration in a person’s breath.
A Moorhead lieutenant who is certified to operate the DMT administered the test. The
lieutenant first ran a diagnostic test to ensure the machine was in “proper working order.”
Appellant’s first breath sample showed that his blood alcohol concentration was 0.192, and
the second sample showed it was 0.19.
After the DMT test, the officer read appellant his Miranda rights, and appellant
agreed to speak with him. Appellant admitted that he had been driving before being
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arrested, but could not remember which street he was on. Appellant admitted that he had
consumed whiskey the night before from 7:00 p.m. to approximately midnight. Appellant
then admitted that he presently felt the effects of the alcohol and that his driving ability
was affected by the alcohol. Appellant was charged with one count of gross misdemeanor
driving while impaired (DWI) –under the influence of alcohol in violation of Minn. Stat.
§ 169A.20, subd. 1(1) (2016) (count 1), and one count of gross misdemeanor DWI–alcohol
concentration over 0.08 within two hours of driving a motor vehicle in violation of Minn.
Stat. § 169A.20, subd. 1(5) (2016) (count 2).
At trial, appellant testified that the evening before he was arrested, he and his wife
had an argument that caused him to drink an entire bottle of whiskey. Appellant testified
that he passed out at 3 :00 a.m. on June 18, 2016, woke up approximately 12 hours later,
used mouthwash, and accidentally swallowed some mouthwash. Appellant then testified
that he decided to use mouthwash again right before he was pulled over, and he accidentally
swallowed the mouthwash again. On direct examination, appellant testified that during his
postarrest interview, he did not tell the officer that he was under the influence of alcohol;
rather, he said that he was feeling “hung over.” Appellant testified that at that time, he
believed that he was feeling dizzy because of his diabetes. Appellant never told the officer
or the lieutenant that he had diabetes. On cross-examination, appellant eventually admitted
that during his postarrest interview, he had answered affirmatively when the officer asked
if he was presently feeling the effects of alcohol and if the alcohol had affected his ability
to drive his vehicle.
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The state called the officer who initiated the traffic stop and the lieutenant who
administered the DMT test to testify. The lieutenant testified extensively about his DMT
certification, the DMT testing procedures, the DMT’s accuracy, and appellant’s test results.
In response to the state’s question about his opinion on the DMT’s accuracy, the lieutenant
testified that the machine “was operating properly and it’s 100% accurate.”
The district court instructed the jury on the legal standard for being under the
influence of alcohol. During closing arguments, the prosecutor repeated this legal standard
and explained how appellant met it by citing all the evidence. When addressing appellant’s
postarrest interview, the prosecutor characterized appellant’s statements as a confession to
driving under the influence.
The jury found a ppellant guilty of both counts. The district court sentenced
appellant on count two to 365 days in jail with 275 days stayed for up to six years of
supervised probation. This appeal follows.
D E C I S I O N
Appellant argues for the first time on appeal that two plain errors occurred at trial:
(1) the lieutenant’s statement that the DMT mac hine is 100% accurate was inadmissible
evidence and (2) the prosecutor’s characterizing appellant’s statement as a “confession”
was prosecutorial misconduct. Appellant asserts that he is entitled to a new trial because
the cumulative effect of these errors affected his substantial rights.
Because appellant did not object to the lieutenant’s testimo nial evidence at the
district court, we review its admission for plain error. See Minn. R. Crim. P. 31.02; State
v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) . Under our plain-error test, appellant
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must prove that there was (1) error, (2) that was plain, and (3) that affected appellant’s
substantial rights. State v. Washington, 693 N.W.2d 195, 204 (Minn. 2005). Additionally,
even if appellant meets these three prongs, “we may correct the error only if it seriously
affects the fairness, integrity or public reputation of judicial proceedings.” Id. (quotation
omitted).
Because appellant did not object to the prosecutor’s conduct at the district court, we
review the alleged misconduct for plain error under a modified test. State v. Milton, 821
N.W.2d 789, 802 (Minn. 2012) . Under the modified plain -error test, if appellant proves
that there was error that was plain, the burden then shifts to the state to prove that the error
did not affect appellant’s substantial rights. Id.
“An error is plain if it is clear or obvious.” Id. at 807. This is typically shown “if
the error contravenes case law, a rule, or a standard of conduct.” State v. Ramey , 721
N.W.2d 294, 302 (Minn. 2006). Under the plain -error test, “[w]ith respect to the
substantial-rights requirement, [the appellant] bears the burden of establishing that there is
a reasonable likelihood that the absence of the error would have had a significant effect on
the jury’s verdict.” State v. Horst, 880 N.W.2d 24, 38 (Minn. 2016) (quotation omitted).
Under the modified plain -error test, “the [s] tate must 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.’” State v. Matthews, 779 N.W.2d 543, 551 (Minn. 2010)
(quoting Ramey, 721 N.W.2d at 302).
Appellant argues that the lieutenant’s statement that the DMT machine “is 100%
accurate” was inadmissible and plainly erroneous for two reasons: (1) because it constitutes
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statistical-probability testimony that likely had an exaggerated impact on a finding reserved
for the jury and necessary to the determination of guilt and (2) because it constitutes
opinion testimony to which the lieutenant was not qua lified to testify . As t he state
concedes, it was plain error for the lieutenant to testify about his opinio n of the DMT
machine’s accuracy:
Regardless of whether [the lieutenant’s] testimony should be
characterized as vouching testimony or statistical probability
testimony, it was a poorly worded question that should neither
have been asked nor answered.

We agree that admitting this testimony was plain error.

Appellant also argues that the prosecutor’s c onduct constitutes plain error because
he misstated the law during his closing arguments when he said that appellant had
confessed to being under the influence. Under the modified plain-error test, we first must
determine if the prosecutor committed plain error through prosecutorial misconduct. See
State v. McCray , 753 N.W.2d 746, 751 (Minn. 2008) ( “A prosecutor engages in
prosecutorial misconduct when he violates clear or establish ed standards of conduct, e.g.,
rules, laws, orders by a district court, or clear commands in this state’s case law.” (quotation
omitted)).
Misleading the jury about the law is prosecutorial misconduct. State v. Salyers, 842
N.W.2d 28, 36 (Minn. App. 2014). The prosecutor may “argue all reasonable inferences
from evidence in the record,” but the prosecutor may not “intentionally . . . misstate the
evidence or mislead the jury as to the inferences it may draw.” State v. Smith, 876 N.W.2d
310, 335 (Minn. 2016) (quotations omitted).
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A person is “under the influence” if he “ does not possess that clearness of intellect
and control of himself that he otherwise would have.” State v. Ards, 816 N.W.2d 679, 686
(Minn. App. 2012) (quotations omitted). The jury instructions stated that standard, and the
state reiterated this standard during its closing argument. As appellant points out, to prove
count 1, the state also had to prove that appellant “had drunk enough alcohol so that [his]
ability or capacity to drive was impaired in some way or to some degree.” Id.
Appellant argues that the prosecutor misstated the law because “[t]he state needed
to prove to the jury not only that the alcohol affected [appellant’s] ability to drive, it needed
to prove that the alcohol impaired it.” The state counters that the prosecutor did not
misstate the law because appellant’s statements were, in fact, a confession, and the
prosecutor’s arguments were “ba sed on the evidence produced at trial, or the reasonable
inferences from that evidence.” State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995).
During the postarrest interview, appellant admitted that he had drunk alcohol, that
he presently felt the effects of alcohol, and that the alcohol had affected his driving. During
closing arguments, the prosecutor said:
However much alcohol [appellant] had consumed, he
confessed that he was under the influence of alcohol that day.
You heard [the officer’s] testimony. He asked him, do you
presently feel the effects of alcohol? [Appel lant] said, “ yes.”
He didn’ t say “I feel dizzy because of my diabetes. ” That
wasn’t ever mentioned until today. He says – well, [the officer]
asks [appellant], “did the alcohol you consum e affect your
ability to drive?” He says, “yes.” Not – no explanati on,
nothing like that, just, “ yes.” Ladies and gentlemen, we have
a confession to Count 1 here. [Appellant] was under the
influence of alcohol while he was driving his vehicle that day.

During the state’s rebuttal argument, the prosecutor stated:
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Now, again, we have to base our verdicts on common sense
and reason and we have a confession about the under the
influence prong. We have [appellant] saying, I felt the effects
of alcohol that day and it affected my ability to drive. Ladies
and gentlemen, he confessed because he’ s guilty of driving
under the influence. He wouldn’ t have confessed otherwise.

Through his closing-argument statements, the prosecutor urged the jury to conclude
that when appellant acknowledged that the alcohol had affected his driving, he meant the
alcohol had negatively affected or “impaired” his driving. This was a reasonable inference
to make. No juror would reasonably believe that what appellant meant was t hat alcohol
had positively affected his driving.
But even assuming that the prosecutor’s closing-argument statements constituted
misconduct, that misconduct as well as the admission of the lieutenant’s testimony did not
collectively affect appellant’s sub stantial rights such that reversal is the appropriate
remedy. The evidence of appellant’s guilt was so overwhelming that there is no reasonable
likelihood that the jury’s verdict would have changed without the errors.
Plain error affects appellant’s subs tantial rights if “there is a reasonable likelihood
that the error substantially affected the verdict.” Strommen, 648 N.W.2d at 688.
Conversely, when the burden shifts to the state to prove appellant’s substantial rights were
not affected by the error, the state must 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.” Ramey, 721 N.W.2d at 302 (quotation omitted). When there is overwhelming
evidence of guilt compared to slight errors, the errors do not affect an appellant’s
substantial rights. See State v. Vang , 847 N.W.2d 248, 262 (Minn. 2014) (holding that
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appellant failed to meet his burden of proving his substantial rights were affected when
there was overwhelming evidence of guilt); see also State v. Ivy , 902 N.W.2d 652, 663
(Minn. App. 2017), review denied (Minn. Dec. 19, 2017) (holding that even assuming the
prosecutor engaged in misconduct, it was n ot prejudicial because the alleged miscondu ct
was a couple of short statements in closing argument that was outweighed by the
overwhelming evidence of guilt).
Here, the evidence against appellant was overwhelming in comparison to the errors
that appellant challenges. The officer testified that he arrested appellant because he
smelled alcohol on appellant’s breath, appellant admitted to drinking whiskey, appellant
failed the HGN test and the counting -backwards test, and he believed appellant was
intoxicated; the DMT test results were 0.19, which is nearly two-and-one-half times the
legal limit; in his post arrest interview, appellant admitted that he had drunk whiskey, he
presently felt the effects of alcohol, and the alcohol affected his driving; during trial,
appellant testified that he had drunk a bottle of whiskey the night before, passed out, woke
up, accidentally swallowed mouthwash before driving, then accidentally swallowed
mouthwash again as he w as being stopped by the officer. Moreover, appellant’s trial
testimony was inconsistent because he first testified that in his postarrest interview he was
feeling “hung over” rather than the present effects of alcohol and that he believed he was
dizzy from his diabetes rather than the present effects of alcohol, but he eventually admitted
to telling the officer that he presently felt the effects of alcohol.
We therefore conclude that neither of the alleged errors affected the verdict and we
decline to reverse appellant’s conviction.
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II.
Appellant also filed a pro se supplemental brief, which has one pa ge of arguments,
multiple letters of recommendation, and certificates showing appellant has been admitted
to rehabilitation programs. All of appellant’s pro se arguments are being raised for the first
time on appeal. See Roby v. State, 547 N.W.2d 354, 35 7 (Minn. 1996) (holding that this
court will not address issues not raised in the district court ). Appellant claims that his
Miranda rights were violated because his defense lawyer “would not let [him] see” the
officer’s reports or the officer’s field camera. He also claims that the mouthwash he
accidentally swallowed made the DMT machine malfunction because he had a previous
experience with hand sanitizer causing a breathalyzer to malfunction. Finally, he claims
his positive character should have been taken into account. On appeal, claims that are
unsupported by either arguments or citations to legal authority are deemed forfeited. State
v. Beaulieu , 859 N.W.2d 275, 278 -79 (Minn. 2015) . Because appellan t raises these
arguments for the first time on appeal and does not cite to any legal authority for why he
should prevail, we consider his pro se arguments forfeited.
Affirmed.