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This opinion will be unpublished and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
A17-1244

State of Minnesota,
Respondent,

vs.

Jerry Robert Deno,
Appellant.

Filed July 2, 2018
Affirmed
Ross, Judge

Olmsted County District Court
File No. 55-CR-16-7288

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

Terry L. Adkins, Rochester City Attorney, Kelli L. Ceraolo, Assistant City Attorney,
Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Hooten,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Trooper Scott Barstad stopped Jerry Deno’s pickup truck for Deno’s suspected
drunk driving and noticed that Deno’s face was bruised and blood y. Deno stood trial for
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second-degree gross misdemeanor test refusal and o pen-bottle possession. Deno’s trial
strategy was to highlight his facial injuries and maintain that all of the indicia of his
intoxication could have been the result of those injuries rather than intoxication. The
district court allowed Deno to advance this theory but did not allow him to present any
argument or ask any question suggesting that the trooper’s decision not to bring him to the
hospital undermined probable cause for the arrest. Because this trial limitation falls within
the district court’s discretion, we affirm.
FACTS
A police dispatcher sent Trooper Scott Barstad to a parking lot in Rochester on a
report of a suspected impaired driver with a bloody face sitting in a pickup truck. The
trooper found and stopped Jerry Deno’s truck after he saw it exceed the speed limit and
drift over the centerline. After the stop, the trooper saw that Deno’s face was bloody and
bruised. The trooper also saw signs of Deno’s intoxication: Deno smelled of a strong odor
of an alcoholic beverage; his eyes were bloodshot; and he slurr ed his speech. The trooper
administered the horizontal gaze nystagmus test, which supported his suspicion that Deno
was impaired. Deno refused to perform any other field sobriety tests, including a
preliminary breath test. The trooper arrested Deno and searched his truck, finding a cold,
open, partly consumed, 40-ounce bottle of Steel Reserve malt liquor in the center console.
Trooper Barstad took Deno to the detention center and read him the implied-consent
advisory. The trooper asked Deno at least three times if he would submit to a breath test,
but Deno refused. The state charged Deno with second-degree gross- misdemeanor test
refusal, third-degree gross- misdemeanor driving while impaired, and open-bottle
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possession. The state later dismissed the driving-while-impaired charge, and a jury
considered the remaining offenses.
Deno’s trial strategy was to argue that his visible facial wounds implied that he had
suffered a head injury that caused him merely to appear to be impaired. The district court
treated this as a valid defense theory but prohibited Deno from arguing “to th[ e] jury that
[the arresting trooper’s] decision not to contact emergency medical care or seek out medical
care somehow negates probable cause.” During Deno’s cross examination of Trooper
Barstad, the district court sustained relevancy objections to the following questions:
“[H]ow far would you say [the traffic stop] was from the closest hospital?” “Well, in any
event, you did not take him to the hospital. Correct?” “Knowing now that [man y of the
circumstances that led you to believe Deno was impaired could have also been explained
by his head injuries,] . . . if you had to do it again . . . ?”
The jury found Deno guilty. Deno appeals.
D E C I S I O N
Deno argues that the district court denied him his constitutional right to present a
defense to the test-refusal charge. A district court has broad discretion in making
evidentiary decisions, and this court will reverse those decisions only if the district court
abused its discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). One way a district
court abuses its discretion is by denying a criminal defendant his right to present a complete
defense. See State v. Bjork, 610 N.W.2d 632, 636 (Minn. 2000). To convict a defendant of
test refusal, the state must prove that a peace officer had probable cause to believe that the
defendant was driving while impaired. See Minn. Stat. §§ 169A.20, subd. 2(1), 169A.51,
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subd. 1(b) (2016); see also State v. Koppi, 798 N.W.2d 358, 361– 64 (Minn. 2011). Deno
argues that b y prohibiting him from asking questions that sought to undermine the
existence of probable cause (by casting doubt on the trooper’s decision not to take Deno
for medical treatment), the district court abused its discretion. The argument fails.
A defendant must exercise his right to present a complete defense within the bounds
of the rules of evidence. State v. Henderson, 620 N.W.2d 688, 698 (Minn. 2001). Deno’s
challenged questions were irrelevant under the rules. “Evidence is relevant when it
logically or reasonably tends to prove or disprove a material fact in issue, or tends to make
such a fact more or less probable, or affords a basis for or supports a reasonable inference
or presumption regarding the existence of a material fact.” State v. Walen, 563 N.W.2d
742, 749 (Minn. 1997) (quotation omitted). In the context of the test-refusal statute,
probable cause “exists whenever there are facts and circumstances known to the officer
which would warrant a prudent man in believing that the individual was driving . . . while
impaired.” Koppi, 798 N.W.2d at 362 (quotations omitted). Questioning the trooper about
the proximity to the nearest hospital would not elicit any evidence relevant to whether
probable cause existed. The location of a hospital has no bearing on whether a reasonable
officer would suspect that impaired driving was caused by alcohol consumption. Deno’s
other two challenged questions— “[I]f you had to do it again” and “ You did not take him
to the hospital” —likewise would not draw any testimony about whether probable cause
existed at the time of the arrest. See id. The district court appropriately sustained the state’s
relevancy objections.
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We are not persuaded otherwise by Deno ’s reliance on State v. Tran, 712 N.W.2d
540 (Minn. 2006), and State v. Nissalke, 801 N.W.2d 82 (Minn. 2011). Deno maintains
that these cases stand for the proposition that “questions challenging [a] police
investigation are always relevant.” Nothing in those cases stands for such a sweeping
proposition of relevance or admissibility. And those cases had nothing to do with an
officer’s probable cause as an element of an offense. Both cases instead addressed the
application of the alternative-perpetrator rule in murder cases. Tran, 712 N.W.2d at 550–
52; Nissalke, 801 N.W.2d at 99–103. That evidence of an alternative perpetrator is relevant
under the alternative-perpetrator rule does not translate into a holding that evidence of some
theoretical alternative cause is relevant to the element of the officer’s probable-cause
determination. That determination is not diminished even if some other cause might be
theoretically plausible. This is because “even if there are valid alternative explanations,
probable cause may still exist.” State v. Moe, 498 N.W.2d 755, 759 (Minn. App. 1993).
The trooper knew that Deno reeked of alcoholic beverages, had been drinking an alcoholic
beverage in his pickup, and had failed the nystagmus test (none of which can be explained
by facial bruising), and that his driving, bloodshot eyes, and slurred speech were consistent
with drunk driving. These circumstances established his probable cause for the arrest
regardless of whether some of the circumstances m ay have also supported some other
theory.
The district court’s evidentiary rulings did not deny Deno the right to present a
complete defense.
Affirmed.