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This opinion will be unpublished and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
A17-1086

State of Minnesota,
Respondent,

vs.

Ronald John Impola,
Appellant.

Filed May 7, 2018
Affirmed
Connolly, Judge

Clay County District Court
File No. 14-CR-16-1312

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Connolly, Judge; and Smith,
John, Judge.
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 fleeing a peace officer in a motor vehicle,
arguing that the district court erred in concluding that appellant did not have standing to
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challenge the seizure of the vehicle and abused its discretion in allowing the state to reopen
its case to present additional evidence; appella nt also argues that the prosecutor’s closing
argument included reversible misconduct. Because we see no error in the district court’s
conclusion, no abuse of discretion, and no prejudice to appellant in the prosecutor’s closing
argument, we affirm.
FACTS
On March 29, 2016, a sheriff’s deputy on patrol i n Minnesota observed a white
vehicle with a Colorado license plate and a misaligned headlight approach the deputy, turn
on its bright lights when about 1,000 feet from the deputy, and pass the deputy. The deputy
turned around to follow the vehicle , which then accelerated. Th e deputy determined that
the vehicle was moving at 104 m.p.h. in a 55-m.p.h. zone and pursued it into Fargo, North
Dakota, when he stopped the pursuit for safety reasons.
The deputy notified Fargo police officers to be on the lookout for the vehicle, which
he described to them. Some hours later, Fargo police officer s notified the deputy that a
vehicle matching his description had been found in a parking lot. The deputy we nt to the
parking lot and identified the vehicle , which was parked diagonally across two parking
spots with its doors locked and its windows closed. The deputy noticed that men’s clothing
and papers were lying on the floor of both front and back seats.
The deputy determined that the vehicle ’s owner was Jessica Impola. He checked
the name “Impola” and found that a Fargo resident, appellant Ronald Impola, had previous
contact with law e nforcement while driving the vehicle and that there was a warrant for
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appellant’s arrest. The deputy seized the vehicle and had it towed to a police impound lot
in Minnesota.
On April 4, 2016, the deputy was informed that s omeone was trying to get the
vehicle out of the impound lot. He telephoned that person and recorded t he call. The
person identified himself as appe llant and the brother of the vehicle’s owner; he said that
he was driving the vehicle “not fast enough” when the deputy pursued him and that he
needed the personal property, i.e. the papers and clothing, in the vehicle.
Appellant was charged with fleeing a peace officer in a motor vehicle. He moved
to suppress the evidence found in the vehicle and to dismiss the case. The district court
denied the motion to suppress on the grounds that: (1) there was no evid ence to suppress
as a result of the impounding of the vehicle, (2) appellant lacked standing to challenge the
seizure of the vehicle because he was not the owner, and (3) nothing in the record indicated
that appellant was manipulated or coerced into making statements to the deputy over the
telephone.
The day before the jury trial, an investigator prepa red a search warrant for the
vehicle and searched it. He did not find the papers and men’s clothing seen by the deputy
in the vehicle and mentioned by appe llant during the phone call, but he did find a receipt
with appellant’s name, address, and phone number. Appellant’s counsel challenged the
admission of the receipt on the ground of spoliation, saying that the receipt “could have
been” put in the vehicle before the investigator searched it. The district court admitted the
receipt into evidence.
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At trial, appellant’s counsel gave a very brief opening statement, asserting that the
evidence would show that the person who spoke to the deputy on the phone and admitted
fleeing in a vehicle was not appellant.
The state called the deputy as its first witness. He testified about pursuing the
vehicle and about finding it; the recording of his phone conversation was admitted into
evidence; he went on to testify th at papers and men’s clothing we re lying on the floor of
the vehicle when he impounded it and had it towed. The investigator then testified that the
purpose of the warrant was to look for the papers and clothing tha t the deputy had seen in
the vehicle and that appellant had sai d were in the vehicle during his phone conversation
with the deputy, that those items had not been in the vehicle when the investigator executed
the warrant the previous day, and that the investigator had found a receipt identifying
appellant in the vehicle. The state then rested its case.
Appellant moved for a judgment for acquittal on the grounds that the state had failed
to prove appellant was the man speaking to the depu ty on the phone and that the vehicle
had obviously been tampered with, so the receipt could have been put into it by anyone at
any time. The motion was denied, and the court adjourned.
Later that afternoon, the state looked in to who had had access to the vehicle while
it was impounded and discovered that Jessica Impola, appellant’s sister, the vehicle’s
owner, and a resident of Michigan, had asked the chief deputy to allow her mother, who
lives near the lot where the vehicle was impounded, to remove the papers and clothing.
The chief deputy had allowed the mother to do this and would testify to that effect.
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The next morning, after extensive debate, the state’s motion to reopen its case was
granted on the grounds that appellant was actually asserting an alternative -perpetrator
defense and the state’s evidence wo uld be relevant to that defense. The state called the
chief deputy, who testified that, at the direction of appellant’s sister, he had broug ht
appellant’s mother to the vehicle and permitted her to remove appellant’s papers and
clothing.
Appellant did no t testify and called no witnesses. During closing argument, the
prosecutor told the jury that it had to weigh two competing theories of the case: the state’s
theory that appellant drove the vehicle that fled from the deputy and spoke to the deputy
on the phone, and appellant’s theory that some other person drove the vehicle and spoke to
the deputy.
The jury found appellant guilty of fleeing a peace officer in a motor vehicle.
Appellant challenges his conviction, arguing that the district court erred in concluding that
appellant did not have standing to challenge th e seizure of the vehicle and abused its
discretion in allowing the state to reopen its case and that the prosecutor committed
reversible error during closing argument.1

1 As a threshold matter, appellant argues that the state waived the issue of standing by
failing to raise it at the hearing on his motion to suppress. But although standing was not
mentioned at the hearing, the state in its memorandum opposing appellant’s motion to
suppress said, “[t]he fact that [appellant] was not the registered owner of the vehicle would
mean that he has no privacy interest in the vehicle and would have no standing, whatsoever,
to assert a fourth amendment challenge . . . .” Thus, the issue of appellant’s standing was
presented to the district court in writing, if not orally.
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D E C I S I O N
1. Standing
“A defendant may not vicariously assert fourth amendment rights; they are
personal. Furthermore, it is the burden of the party seeking suppression to show his fourth-
amendment rights were violated, that he had a personal and legitimate expectat ion of
privacy . . . .” State v. Robinson , 458 N.W.2d 421, 423 (Minn. App. 1990) (citations
omitted). The district court, relying on Robinson, concluded that
[Appellant] does not claim to have any ownership interest in
the vehicle, and therefore, does not have sufficient legal
standing to allege that the vehicle was wrongfully seized in
Fargo, North Dakota, and then transported over to Clay
County, Minnesota. Under the circumstances of this case, the
only person who would have a sufficient privacy inter est to
have legal standing to complain about the seizure of the vehicle
would be the rightful owner of the vehicle.

Appellant argues that the district court relied on facts not in evidence when it found
that appellant’s sister was the registered owner of the vehicle because there was no
reference to ownership of the vehicle at the hearing on appellant’s motion to suppress.
While this is true, the state’s post -hearing memorandum opposing the motion to suppress
provided evidence of ownership supplied by appellant during his phone conversation with
the deputy, in which he said, “I don’t care where the car goes . . . it’s actually my sister’s
car,” and answered the deputy’s question, “[I]s . . . your car just registered to her then or
what?” with “Well no it’s in her name . . . the bank and everything is all in her name.” In
any event, appellant did not show that he had any expectation of privacy in the vehicle in
which he fled a peace officer.
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2. Re-opening the State’s Case
“In the interests of justice, the [district] court may allow any party to reopen that
party’s case to offer additional evidence.” Minn. R. Crim. P. 26.03, subd. 12(g). Thus, the
standard of review is abuse of the district court’s discretion.
Appellant argues that the district court abused its discretion in allowing the state to
reopen its case because appellant did not identify a specific individual as the alternative
perpetrator and was therefore not presenting an alternative -perpetrator defense. But an
alternative-perpetrator def ense may be asserted without identifying the individual. See,
e.g., State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013) (addressing “whether the State
presented sufficient evidence that Silvernail, rather than an unidentified alternative
perpetrator, ca used [the victim’s] death”); Staunton v. State , 784 N.W.2d 289, 301 -02
(Minn. 2010) (concerning “claims that counsel failed to investigate . . . an unidentified
burglar or intruder as alternative perpetrators”). Appellant argues that he was “simply
challenging the state’s proof on the element of identity.” But, as the district court observed,
since appellant did not assert that the car that fled the deputy was driving itself and did
assert that he was not the driver, he was “in essence raising the defense of an alternative
perpetrator.”
Appellant then argues that the state should not have rested its case when it did. But,
at the time it rested its case, the state had no further evidence to present: it had no reason
to investigate the chief deputy or pr oduce him as a witness until the investigator testified
that the papers and clothing the deputy saw in the vehicle when it was seized were not there
when the investigator searched the car the day before trial.
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Appellant argues further that the chief depu ty’s evidence “was not material in that
it did not directly address any of the elements of the charged offense.” But he also argues
that “[t]he strongest piece of evidence tying [him] to [the vehicle ] was the . . . receipt . . .
that contained his name an d telephone number.” Appellant does not explain how “the
strongest piece of evidence” was also “immaterial”; nor does he explain why that evidence
should have been kept from the jury.
Given the circumstances here, the district court did not abuse its d iscretion in
allowing the state to reopen its case.
3. Closing Argument
Appellant claims the prosecutor committed misconduct in his closing argument. No
objection was made to the closing argument at trial.
[B]efore an appellate court reviews an unobjected-to error,
there must be (1) error; (2) that is plain; and (3) the error must
affect substantial rights. If these three prongs are me t, the
appellate court then ass esses whether it should address the
error to ensure fairness and the integrity of the judicial
proceedings.

State v. Griller , 583 N.W.2d 736, 740 (Minn. 1998). On the third prong, the state bears
the burden of proving that there is no reasonable likelihood that the absence of the
misconduct would have had a significant effect on the jury’s verdict. State v. Ramey, 721
N.W.2d 294, 302 (Minn. 2006).
Appellant argues that the prosecutor misstated the state’s burden of proof by telling
the jury it had to weigh the state’s the ory that appellant drove the vehicle that fled the
deputy against appellant’s theory that some other unidentified individual, referred to as “a
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mystery man,” drove that car. But a prosecutor “has the right to fairly meet the arguments
of the defendant.” State v. Jackson , 773 N.W.2d 111, 123 (Minn. 2009 ). Appella nt’s
counsel repeatedly argued that appellant was not the driver of the vehicle , beginning with
his opening statement. When the deputy identified appellant at trial, appellant’s counsel
objected: “The deputy certainly identified my client as Ronald John Impola, but he has no
way of identifying him as the man on the phone.” The objection was sustained.
Appellant’s counsel asked the deputy if he had taken any steps to identify the voice of the
man on the p hone, and the deputy said no. T he prosecutor had the right to respond to
appellant’s argument that the driver of the vehicle was someone other than appellant; he
did not commit misconduct in contrasting that argument with the state’s view that appellant
was the driver. See id.
Finally, appellant argues that the prosecutor “implied [appellant] had to come up
with a reasonable theory of innocence in order for the jury to acquit him.” But the
prosecutor explicitly told the jury near the end of his closing argument,
[W]hen you . . . think about everything, you should look at and
reread the instruction, specifically the talk about proof beyond
a reasonable doubt. Proof beyond a reasonable doubt is such
proof as ordinarily prudent men and women would act upon in
their most important affairs. A reasonable do ubt is a doubt
based on reason.

The prosecutor also urged the jury to reread the district court’s instructions, including the
instruction that “[t]he state must convince you by evidence beyond a reasonable doubt that
the defendant is guilty of the crime c harged. The defendant has no obligation to prove
innocence.”
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The jury had heard the deputy testify about pursuing the vehicle, finding the vehicle,
and having a phone conversation with someone who identified himself as the driver of the
vehicle; it had heard the investigator testify about finding a receipt bearing appellant’s
name, address, and phone number in the vehicle; it had heard the chief deputy testify about
receiving a request from the vehicle ’s owner, appellant’s sister, and taking appellant’s
mother to retrieve appellant’ s personal property from the vehicle . Even if the prosecutor
had committed misconduct in his closing argument, there is no reasonable likelihood that
the misconduct would have had a significant effect on the verdict.
Affirmed.