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This opinion will be unpublished and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
A17-1788

State of Minnesota,
Respondent,

vs.

Lonny Duane Lundgren,
Appellant.

Filed September 17, 2018
Affirmed
Florey, Judge

Le Sueur County District Court
File No. 40-CR-15-75

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

Brent Christian, Le Sueur County Attorney, Benjamin J. King, Assistant County Attorney,
Le Center, Minnesota (for respondent)

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

Considered and decided by Ross, Presiding Judge; Florey, Judge ; and Stauber,
Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by ap pointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant challenges his 2017 felony driving-while-impaired (DWI) conviction. In
2003, he was convicted of criminal-vehicular operation (CVO). Three statutory
subsections were listed as bases for the CVO conviction, and only one qualifies to enhance
appellant’s 2017 DWI offense to f elony level. Appellant argues that the jury in his DWI
trial should have been instructed to determine if the CVO convi ction is under an
enhancement subsection. He also argues that the district court improperly limited his
arguments on that issue. We affirm.
FACTS
In 2015, following a traffic stop, appellant Lonny Duane Lundgr en was charged
with felony DWI and driving after cancellation. The DWI offens e was charged under
Minn. Stat. § 169A.24, subd. 1(3)(ii) (2014), which imposes fel ony liability if the driver
was previously convicted of substance-related criminal vehicular homicide or injury. See
Minn. Stat. § 609.21 (2006). The complaint alleged that appell ant had a qualifying 2003
conviction.
Appellant moved to dismiss the DWI charge. He asserted that his 2003 conviction
did not qualify to enhance his DWI charge to felony level. At an omnibus hearing, the
state offered a copy of the 2003 sentencing order indicating th at appellant was convicted
of CVO—substantial bodily harm “i n violation of M.S. 609.21, Su bd. 2a(1), (2)(i), (7).”
The district court denied appellant’s motion and concluded that appellant was convicted of

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violating three subsections of section 609.21, and subdivision 2a(2)(i) qualifies to enhance
the DWI charge.
In January 2016, appellant moved the district court to accept a plea over the state’s
objection to driving after cance llation and to dismiss the DWI charge. Appellant again
asserted that his 2003 conviction did not support the felony DW I charge. He argued that
he could not have been lawfully convicted under three subsectio ns for a single crime and
that the jury should “determine of what [appellant] was previou sly convicted.” He
submitted a copy of the CVO complaint. It indicates that he wa s charged with numerous
counts, including one count of CVO—substantial bodily harm, wit h three separate
subsections listed under that s ingle count. Appellant also sub mitted plea-hearing and
sentencing transcripts.
At the plea hearing, appellant’s attorney indicated that appellant would be pleading
guilty to CVO under three subsections. In addition, the following exchange occurred:
Q: [Y]ou’ve pled guilty to, uhm, [CVO], and would you
agree that this occurred on September 15, 2002, in the City of
St. Peter, Nicollet County, Minnesota, or the day before?
A: Yes.
Q: Okay. Now, at—at or about that time in the City of
St. Peter were you driving a motor vehicle?
A: I believe so, yes.
Q: Whose vehicle were you driving?
A: My own.
Q: And that was a 1989 GMC Suburban?
A: Yes.
Q: And, uhm, what happened?
A: Uh, there was a fight after the bar had closed in St. Peter
and, uh, I was involved in that fight and, uhm, there was ten or
fifteen guys, uhm, against me and two of my friends. Uhm, I
had hit my head on the utility box outside of the bar and I was
kicked in the head several times and got knocked out

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eventually. I don’t remember anything after that until the next
morning.
Q: Okay. Uhm the—th e record reflects that you drove this
vehicle and hit a, uhm, person named, uh, [J.B.]. If that’s what
the record shows and witnesses would testify to that, would
you have any reason to disagree with that?
A: No.
Q: And you would agree that, uh, [J.B.], if the report shows
this and the witnesses so wou ld say, that [J.B.] suffered
substantial bodily harm?
A: Yes.
Q: Had you been drinking at that time?
A: Yes.
Q: And, uh, do you believe that the alcohol which you had
consumed affected your ability to drive the motor vehicle?
A: Yes.

Appellant admitted that he was intoxicated at the time of the CVO.
The district court denied appellant’s motion to enter a plea over the state’s objection.
The court noted that appellant should have been charged with se parate counts, but “there
can be no doubt that [appellant] admitted, under oath, that he was under the influence of
alcohol when he caused substantial bodily harm to another as a result of operating a motor
vehicle.” The court concluded th at appellant’s prior convictio n qualified to enhance the
DWI charge.
A jury trial commenced in February 2016. The district court in structed appellant
that he was to refrain from arguing that his 2003 conviction is not under an applicable
enhancement subsection. At trial, the sole admitted document relating to appellant’s 2003
conviction was a copy of the 2003 sentencing order. Appellant also testified about the
prior offense. He acknowledged that he admitted to three crime s, as set forth in the 2003
sentencing order, and was convicted of felony-level CVO—substantial bodily harm.

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Appellant requested that the jury be instructed on the three subsections listed in the
2003 sentencing order. The district court denied appellant’s proposed instruction because
a determination was made that the 2003 conviction qualified for purposes of enhancement.
The jury was instructed that, in order to convict appellant, it needed to find that appellant
“had a previous felony conviction for [CVO]—substantial bodily harm.” The jury found
appellant guilty of first-degree DWI. He was sentenced to a st ayed 66 months’
imprisonment. This appeal followed.
D E C I S I O N
I. The district court did not abuse its discretion by instructing the jury that it
must find that appellant has a previous felony conviction for CVO—substantial
bodily harm.

Appellant first argues that the district court committed revers ible error by merely
requiring the jury to find that h e has a previous felony convic tion for CVO—substantial
bodily harm. He asserts that the jury should have been tasked with determining if he was
previously convicted under a specific statutory subsection.
In determining the adequacy of jury instructions, we apply an a buse-of-discretion
standard. State v. Moore, 699 N.W.2d 733, 736 (Minn. 2005). Likewise, “[t]he refusal to
give a requested jury instruction lies within the discretion of the district court and no error
results if no abuse of discretion is shown.” State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).
District courts must instruct the jury in a way that “fairly and adequately explain[s] the law
of the case” and does not “materially misstate[ ] the applicabl e law.” State v. Koppi, 798
N.W.2d 358, 362 (Minn. 2011).

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The Constitution provides a criminal defendant the right to a j ury determination
“that the defendant is guilty of every element of the crime with which he is charged, beyond
a reasonable doubt.” United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 2313
(1995). “[A] prior conviction is an element of the offense of aggravated DWI.” State v.
Berkelman, 355 N.W.2d 394, 395 (Minn. 1984). Appellant’s DWI offense was charged as
a felony under Minn. Stat. § 169A.24, subd. 1(3)(ii), which imp oses felony liability for a
DWI offense when the driver has previously been convicted of a felony under “Minnesota
Statutes 2006, section 609.21,” subdivision 2a, clauses (2) to (6). Under subdivision 2a of
section 609.21 (2006):
A person is guilty of [CVO] resulting in substantial
bodily harm . . . if the person causes substantial bodily harm to
another, as a result of operating a motor vehicle;
(1) in a grossly negligent manner;
(2) in a negligent manner while under the influence
of:
(i) alcohol;
. . . .
(7) where the driver who c auses the accident leaves
the scene of the accident . . . .

Appellant’s sentencing order indicates that he was convicted of violating 2a(1), concerning
gross negligence; 2a(2)(i), concerning alcohol; and 2a(7), concerning leaving the scene of
the accident. Of the three, only a conviction under 2a(2)(i), concerning alcohol, qualifies
to enhance appellant’s DWI offense to a felony under Minn. Stat. § 169A.24, subd. 1(3)(ii).
Appellant asserts that the district court abused its discretio n by not instructing the
jury to find whether his CVO conviction is under subdivision 2a(2)(i). District courts have
broad discretion in formula ting jury instructions. State v. Thao , 875 N.W.2d 834, 841

7
(Minn. 2016). Here, there was only one prior conviction at issue, the 2003 CVO resulting
in substantial bodily harm. The district court, in pretrial pr oceedings, determined that the
CVO qualified under Minn. Stat. § 609.21, subd. 2a(2)(i), to en hance the DWI charge.
Given these determinations, the jury instructions fairly define d the prior-conviction
element of the DWI charge. “A district court is not required t o give a party’s proposed
instruction if its substance is a lready included in the instruc tion proposed by the court.”
State v. Schoenrock, 899 N.W.2d 462, 466 (Minn. 2017).
We are not persuaded that a jury must specifically find that a prior conviction fits
within “Minnesota Statutes 2006, section 609.21.” Minn. Stat. § 169A.24, subd. 1(3)(ii).
Requiring a jury to delve into s pecific statutory language may result in confusion and
misapplication of the law. For example, in State v. Boecker, 893 N.W.2d 348, 349, 354
(Minn. 2017), the supreme court concluded that a 1998 CVO convi ction qualified for
purposes of enhancement, despite section 169A.24 referring to previous felony convictions
under “Minnesota Statutes 2006.” The district court did not ab use its discretion by
declining to instruct the jury t o find whether appellant’s prio r CVO was under a specific
statutory subsection.1
Appellant also argues that whether his CVO conviction is under an applicable
enhancement subsection is a fact question for the jury, and the district court abused its

1 Even if the district court erred by not requiring the jury to find that appellant’s prior CVO
was specifically under section 609.21, subdivision 2a(2)(i), any error was harmless beyond
a reasonable doubt. See Schoenrock, 899 N.W.2d at 467 (concluding that omission of the
phrase “with intent to defraud” from jury instruction on the el ements of theft by false
representation was harmless beyond a reasonable doubt). There was only one conviction
at issue, and the sentencing order listed subsection (2)(i) as grounds for that conviction.

8
discretion by depriving the jury of that fact question. Appell ant had a right to a jury
determination on whether he has a previous qualifying convictio n. See Berkelman, 355
N.W.2d at 395. But appellant’s challenge is qualitatively diff erent. For two reasons, we
conclude that the issue here was properly decided by the district court.
First, appellant argued that his p rior conviction does not qual ify for purposes of
enhancement, thereby raising a legal issue for the district cou rt to determine. Whether a
prior conviction statutorily qualifies as a prior impaired-driving conviction for purposes of
enhancement is a “legal question.” State v. Smith, 899 N.W.2d 120, 121 (Minn. 2017); see
also State v. Schmidt, 712 N.W.2d 530, 539 (Minn. 2006) (concluding that South Dakot a
convictions could be used for enhancement purposes). Legal iss ues must be decided by
the district court, and it is inappropriate to submit such issues to the jury. State v. Mellett,
642 N.W.2d 779, 785 (Minn. App. 2002), review denied (Minn. July 16, 2002).
Second, appellant effectively challenged the validity of his pr ior conviction by
asserting that he could not have been convicted under three sta tutory subsections, thereby
raising a legal issue best decided by the district court in a pretrial proceeding. See State v.
Leroy, 604 N.W.2d 75, 77 (Minn. 1999) (“An appellate court reviews d e novo the
constitutional issue of double jeopardy.”). Appellant’s 2003 s entencing order indicates a
qualifying conviction for purpos es of enhancement. The record does not indicate that
appellant moved to correct that sentencing order. See Minn. R. Crim. P. 27.03, subd. 9
(“The court may at any time correct a sentence not authorized b y law.”); Schmidt, 712
N.W.2d at 538 n.4 (noting that c ollateral attacks on conviction s are permitted only in
unique cases). The supreme court has indicated that a pretrial proceeding is the proper

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venue to challenge the validity of a prior DWI conviction that will be used for
enhancement. State v. Nordstrom , 331 N.W.2d 901, 905 (Minn. 1983). The issue
presented by appellant is a legal issue properly decided in a pretrial proceeding. The district
court did not abuse its discretion.
II. The district court did not abuse its discretion by limiting appellant’s argument
on whether the CVO conviction is under a qualifying subsection.

Appellant next argues that the district court erred by prohibiting him from arguing
that he was not convicted of a prior qualifying offense. The district court ordered appellant
to refrain from arguing that hi s 2003 conviction was not under an applicable subdivision
for purposes of DWI enhancement.
We review a district court’s rulings on evidentiary issues for an abuse of discretion.
State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). Likewise, we review a district court’s
restriction of the scope of a closing argument for an abuse of discretion. State v. Caldwell,
815 N.W.2d 512, 516 (Minn. App. 2012), review denied (Minn. July 27, 2012).
Whether appellant was convicted u nder a qualifying subsection, and whether that
conviction was valid, were legal questions decided by the district court in pretrial rulings.
Argument contrary to those pretrial rulings would be improper a nd confusing to the jury.
A district court may limit a defendant’s arguments to ensure th at the jury is not misled.
State v. Atkinson, 774 N.W.2d 584, 589 (Minn. 2009). The district court did not abuse its
discretion by requesting that appellant refrain from arguing legal issues to the jury that had
already been determined by the court. See Mellett, 642 N.W.2d at 785.
Affirmed.