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This opinion will be unpublished and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
A17-2048

State of Minnesota,
Respondent,

vs.

Jefferey Mariner,
Appellant.

Filed November 13, 2018
Affirmed
Reilly, Judge

Lyon County District Court
File No. 42-CR-16-465

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

Rick Maes, Lyon County Attorney, Abby Wikelius, Assistant County Attorney, Marshall,
Minnesota (for respondent)

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

Considered and decided by Worke, Presiding Judge; Reilly, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant challenges his conviction for first-degree driving while impaired, arguing
that the district court abused its discretion and denied him his constitutional right to present

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a complete defense by excluding an abridged version of the squad-car video recording as
cumulative evidence. Appellant also raises three additional pro se arguments. We affirm.
FACTS
On May 7, 2016, a Minnesota State patrol trooper observed a truck traveling
southbound on Highway 23, which was crossing ov er the fog line and speeding. After
stopping the truck, the trooper identified appellant, Jefferey Mariner, as its driver. While
speaking with appellant , the trooper smelled an odor of alcoholic beverage coming from
the truck. Appellant spoke with slurred spee ch and had glassy, watery eyes. Based upon
the trooper’s observations and appellant’s performance on field sobriety tests, the trooper
arrested appellant. After he was read the implied consent advisory, appellant submitted to
a DataMaster DMT (DMT) breath tes t, which indicated that appellant had a 0.13 alcohol
concentration. Appellant was charged with two counts of driving while impaired and one
count of open bottle.
During the jury trial, appellant’s defense counsel argued that the trooper’s radio was
on and receiving radio traffic during the DMT test , which could have impacted the
reliability of the test. Both defense counsel and the prosecutor questioned the trooper about
his radio. Additionally, appellant’s defense counsel called a forensic scientist from the
Minnesota Bureau of Criminal Apprehensi on as an expert witness to testify to DMT
machine safeguards and radio frequency interference. Following the witnesses’ testimony,
defense counsel requested to play an abridged version of the implied-consent video
recording (abridged recording) to demonstrate that there was radio traffic during the DMT
test. The district court sustained the state’s objection to the abridged recording as

3
cumulative evidence. At the conclusion of trial, the jury returned guilty verdicts on all
counts.
This appeal followed.
D E C I S I O N
I. The district court did not abuse its discretion when it precluded the abridged
recording.

A criminal defendant has a constitutional right to a meaningful opportunity to
present a complete defense. California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528,
2532 (1984); State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992). “But this right is not
absolute” as “[c]riminal defendants are bound by the rules of evidence, which are designed
to assure fairness and reliability in ascertaining gui lt or innocence.” State v. Wilson, 900
N.W.2d 373, 384 (Minn. 2017) (citations omitted) . Even where a criminal defendant
alleges that his inability to present a defense violates his constitutional rights, evidentiary
questions are reviewed for an abuse of discretion. Id. (citing State v. Henderson , 620
N.W.2d 688, 698 (Minn. 2001)). The appe llant has the “burden of establishing that the
[district] court abused its discretion and that appellant was thereby prejudiced.” State v.
Amos, 658 N.W.2d 201, 203 (Minn. 2003).
a. The abridged recording was cumulative evidence.
A district court may exclude otherwise relevant evidence “if its probative value is
substantially outweighed by . . . considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Minn. R. Ev id. 403 . “Cumulative evidenc e” is
“[a]dditional evidence that supports a fact established by the existing evidence.” Black’s

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Law Dictionary 675 (10th ed. 2014). After the trooper testified that his radio was on during
the DMT test, a ppellant’s defense counsel sought to introduc e the abridged recording to
establish that the trooper’s radio was on and received radio traffic during the DMT test .
Given that appellant’s rationale for introducing the abridged recording had “already been
testified to” by the trooper, the district court’ s decision to exclude the evidence as
cumulative was not an abuse of discretion. See State v. Moua, 678 N.W.2d 29, 37 (Minn.
2004) (stating that an appellate court will not reverse a district court’s evidentiary ruling
absent a clear abuse of discretion) ; see also State v. Buchanan , 431 N.W.2d 542, 551
(Minn. 1988) ( discerning no abuse of discretion where excluded evidence that “merely
duplicated other evidence already presented” was cumulative).
b. The best-evidence rule is inapplicable.
Appellant also asserts that the best-evidence rule required the introduction of the
abridged recording. See Minn. R. Evid. 1002. Appellant did not present the best-evidence
argument to the district court, and therefore this court need not address it on appeal. Roby
v. State, 547 N.W.2d 354, 357 (Minn. 1996) (“This court generally will not decide issues
which were not raised before the district court.”). But in the interests of justice, we will
briefly address the issue.
In the absence of an objection, an appellate cou rt may review an issue first raised
on appeal for plain error. Minn. R. Crim. P. 31.02; State v. Kelley, 855 N.W.2d 269, 273-
74 (Minn. 20 14). The plain -error standard requires the appellant to show (1) an error
(2) that was plain and (3) that the error a ffects the appellant’s substantial rights. Kelley,
855 N.W.2d at 273 -74. The party asserting plain error has the burden of establishing all

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three elements. Id. “If these three prongs are met, the court must then decide whether it
should address the issue in order to ensure fairness and the integrity of the judicial
proceedings.” State v. Vick, 632 N.W.2d 676, 685 (Minn. 2001) (quotation omitted).
The best-evidence rule requires that the original recording be produced to prove its
contents. Minn. R. Evid. 1002. Generally, secondary evidence about the contents of the
original cannot be admitted where the original is available. State v. DeGidio, 152 N.W.2d
179, 180 (Minn. 1967). However, the best-evidence rule is inapplicable in this situation.
Here, appellant did not seek to introduce the abridged recording to prove the contents of
the recording, but, rather, to demonstrate the presence of radio transmissions. At trial, the
trooper was not asked specifically about the content of the radio traffic during the DMT
test and appellant’s counsel did not raise any objection to the trooper’s ability to remember
detailed information about the radio traffic. This case is analogous to State v. Bauer, where
the supreme court held that i t was not an error to permit the officer to testify about the
contents of a recorded conversation, in lieu of a video recording, because the defendant did
not object to any discrepancies between the testimony and recordings or provide any
evidence that the officer’s testimony was misleading. 598 N.W.2d 352, 368 (Minn. 1999).
Accordingly, because there is no plain error, we reject appellant’s best-evidence argument.
II. The exclusion of the abridged recording did not affect the jury’s verdict.

Even if we determined that the district court abused its discretion in making its
evidentiary ruling, this court will reverse only if the exclusion of the evidence was not
harmless beyond a reasonable doubt. State v. Zumberge , 888 N.W.2d 688, 694 (Minn.

6
2017). An “error is harmless if the jury’s verdict is surely unattributable to the error.”
State v. Atkinson, 774 N.W.2d 584, 589 (Minn. 2009).
Appellant argues that his defense was to “attack the test results by establishing that
the testing procedures were flawed because of radio interference.” To that end, appellant’s
defense counsel questioned both the trooper and the BCA expert regarding potential radio
interference. The trooper testified that “from [his] training and knowledge of the operating
machine, it was functioning properly and resulted in a correct test” and the BCA expert
testified that “this test was completed without issue .” When a jury hears a wealth of
evidence on a topic, the exclusion of other evidence on that same topic is unlikely to be
prejudicial. Zumberge, 888 N.W.2d at 696; see also State v. Martin, 773 N.W.2d 89, 109
(Minn. 2009) (failure to admit video evidence was harmless in part because it was “largely
redundant”).
In addition, t his court may consider the strength of each party ’s evidence when
determining whether admitting excluded evidence would have led to a different result.
State v. Turner, 359 N.W.2d 22, 24 (Minn. 1984). Here, besides the DMT test results—
which revealed appellant had a 0.13 alcohol content —the state presen ted evidence that
appellant displayed sign s of intoxication, failed field -sobriety tests, and admitted to
drinking. Therefore, even if the district court erroneously excluded the abridged recording,
that decision was harmless error. See Zumberge, 888 N.W.2d at 697 (weighing the strength
of the state’s case when making a harmless-error evaluation).

III. Appellant’s pro se arguments.

Appellant raises three additional pro se arguments, but b ecause appellant failed to
support these arguments with citations to relevant facts or legal authority, we deem them
forfeited. See State v. Manley, 664 N.W.2d 275, 286 (Minn. 2003) (considering arguments
forfeited when they are unsupported by facts in th e record and contain no citati on to
relevant legal authority). Nevertheless, in the interests of justice, we analyze appellant’s
arguments below.
Trooper’s Driving Conduct
First, appellant asserts that his convictions should be overturned because the district
court erred in its factual determinations regarding the trooper’s driving conduct. “We give
great deference to a district court’s findings of fact and will not set them aside unless clearly
erroneous.” State v. Evans , 756 N.W.2d 854, 870 (Minn. 200 8). “Findings of fact are
clearly erroneous only if the reviewing court is left with the definite and firm conviction
that a mistake has been made.” Fletcher v. St. Paul Pioneer Press , 589 N.W.2d 96, 101
(Minn. 1999) (quotation omitted).
Minnesota Statut es provide that t he driver of a motor vehicle shall not follow
another vehicle more closely than is “reasonable and prudent, having due regard for the
speed of such vehicles and the traffic upon and the conditions of the highway.” Minn. Stat.
§ 169.18, subd. 8 (2016). Appellant argues that the trooper was a “road -rage driver that
came up upon him at a very high speed, tailgating him” and was “illegally too close,” which
caused appellant to cross the fog line and speed resulting in the traffic stop. Based upon
its review of the evidence, the district court determined that “Trooper Schuelke’s driving

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conduct did not cause the [appellant] to weave over the fog line or exceed the speed limit.”
The district court did not clearly err in making this factual determination because the
evidence in the record supports it.
Alternative Test
Second, appellant asserts that a blood test should have been offered in addition to
the DMT test administered by the trooper. Minnesota Statutes provide that a person has
“the right to have someone of the person’s own choosing administer a chemical test or tests
in addition to any administered at the direction of a peace officer,” however, “[t]he failure
or inability to obtain an additional test or tests by a person does not preclude the admission
in evidence of the test taken at the direction of a peace officer unless the additional test was
prevented or denied by the peace officer. ” Minn. Stat. § 169A.51, subd. 7(b) (2016).
Again, the district court did not clearly err in its factual determination that the trooper “did
not hamper or interfere with any attempt by [appellant] to obtain a blood test.”
Expert Testimony Regarding Ketones
Third, appellant asserts that the district court erred when it precluded appellant’s
expert witness, Dr. Enrico Ocampo, M.D., from testifying about ketones. Appellant sought
to i ntroduce evidence that ketones —chemicals produced by the body that are found in
greater amounts in individuals with uncontrolled diabetes or who are on starvation diets—
could have rendered a positive DMT test result in this case.
Here, the district court determined that, in order to satisfy the relevance requirement
for evidence, “[e]vidence regarding ketones’ effect on the breath test result may only be
admitted if Dr. Ocampo testifies to a reasonabl e degree of medical certainty that on May

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7, 2016, ketones were present in the [appellant’s] breath and that the presence of the
ketones affected the DMT test results in this case.” Moreover, the district court found that,
because there was no evidence that there were ketones in appellant’s system on the date of
the offense, the evidence was speculative, “confusing and misleading.” The district court’s
ruling on evidentiary issues will not be disturbed absent “a clear abuse of discretion.”
Amos, 658 N.W.2d at 203. On appeal, the appellant has the burden of establishing that the
trial court abused its discretion and that ap pellant was thereby prejudiced. Id. (citation
omitted). Appellant has not met this burden.
Because the district court did not abuse its discretion in its evidentiary determination
that the abridged recording was cumulative, nor did it violate the best -evidence rule, and
appellant’s additional pro se arguments are not persuasive, we affirm.
Affirmed.