State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1054

State of Minnesota,
Respondent,

vs.

Anthony Derek Donner,
Appellant.

Filed June 10, 2019
Reversed and remanded
Hooten, Judge

Hennepin County District Court
File No. 27-CR-16-28878

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Susan L. Segal, Minneapolis City Attorney, Matthew Wilcox, Assistant City Attorney,
Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jodi L. Proulx, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Chief Judge; Hooten, Judge; and Stauber,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment 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
HOOTEN, Judge
Appellant argues that his convictions for driving while impaired and careless driving
should be reversed because the district court erroneously refused to instruct the jury on his
affirmative defense of involuntary intoxication . Because the record leads us to conclude
that appellant made a prima facie showing of involuntary intoxication, we agree that the
district court abused its discretion in failing to provide the jury with an involuntary
intoxication instruction. We accordingly reverse and remand for a new trial.
FACTS
Shortly after mid night on August 7, 2016 , while going home from a nightclub,
appellant Anthony Derek Donner was arrested f or driving while intoxicated. Earlier that
evening, appellant drove to pick up a friend, parked in a parking garage in downtown
Minneapolis, and went to a nightclub. He was familiar with the parking garage because he
had previously worked in the attached building for three years.
Appellant testified that once at the club, he ordered a club soda to drink at the bar
while his friend went to the dance floor. Appellant had been in a car accident roughly a
week before the arrest, and so, following his doctor’s recommendation, he did not have any
alcoholic beverages to drink that night. He was also carrying about $300 in cash because
he had been paid earlier that day.
Appellant testified that after his friend went to dance, he was approached at the bar
by a woman he did not know. He purchased a drink for this woman. After chatting with
this woman, appellant left his club soda at the bar while he went to the bathroom, and then

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came back and continued his conversation with the same woman at the bar for
approximately 20 or 30 more minutes.
Appellant then ended this conversation and joined h is friend on the dance floor.
After a short time, appellant “started to feel funny,” so he went back to the bar to buy a
bottle of water. At this point, appellant noticed that most of the $300 in cash he had been
carrying was gone. After looking and asking around for his missing money, appellant got
upset and decided to leave the club.
On his way back to his car, appellant was “feeling groggy and kind of slow-paced,”
but thought that he might be feeling that way as a side effect of his car accident the week
before. Appellant testified that he did not remember getting back to his car, and that the
next thing he did remember was waking up in jail, scared and confused about why he was
there.
R.A., a security guard at the parking lot appellant parked at, testified that appellant
walked to the garage around 2:00 a.m. on August 7, 2016. Appellant appeared drunk, and
R.A. told him to take a nap before driving. A.S., a second security guard at the parking
garage, testified that he saw appellant get into his car, sit without driving for four or five
minutes, start driving, and almost immediately hit a parked car. R.A. then cal led 911 to
summon the police.
Officer Ross Blair was one of the officers who responded to the call. When Officer
Blair arrived, appellant was asleep in his car and had to be woken up. Officer Blair testified
that appellant showed signs of intoxication and failed multiple field sobriety t ests, but did
not smell like alcohol. Appellant also took a preliminary breath test for the presence of

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alcohol which did not detect any alcohol in appellant’s system. Police arrested appellant
based on his failed sobriety tests and took him to get teste d for the presence of o ther
chemicals in his system.
Police obtained a warrant for appellant’s blood, had a sample taken at a nearby
hospital, and sent it to the Bureau of Criminal Apprehension to be tested for the presence
of intoxicants. The test re vealed that appellant had a significant amount of alprazolam,
more commonly known as Xanax, in his system. The therapeutic range for alprazolam is
between .02 and .06 milligrams per liter, while the testing revealed appellant had a
concentration of .074 m illigrams per liter in his bloodstream. Appellant was eventually
charged with second-degree driving while impaired in violation of Minn. Stat. § 169A.20,
subd. 1(2) (2016), and careless driving in violation of Minn. Stat. § 169.13, subd. 2 (2016).
Before trial, the state filed a motion in limine to prevent appellant from arguing the
affirmative defense of involuntary intoxication. The district court denied the state’s
motion, but concluded that it would revisit the issue at the close of evidence to determ ine
if appellant had made a prima facie showing of involuntary intoxication.
At trial, appellant did not contest the fact that he drove while impaired, but testified
that he did not knowingly consume any intoxicating substances the evening of his arrest.
At the close of evidence, the district court considered whether to instruct the jury on the
affirmative defense of involuntary intoxication. Though the district court noted that it was
a “close call,” it elected not to include this instruction, concluding that appellant had failed
to establish a prima facie case.

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During deliberations, the jury sent a note to the district court asking whether it was
“allowed to consider the defendant’s intent, with regard to the question of whether he
consumed a controlled substance, i.e., knowingly consumed it.” At this point, appellant’s
attorney requested an instruction on general intent, essentially asking the district court to
instruct the jury that to find appellant guilty would require them to find that he intended to
drive while intoxicated. The district court denied appellant’s request and responded to the
jury note as follows, “I have provided you with jury instructions in this case, and that
contains the law that you should apply to the evidence and the fact s that you heard during
the course of this trial.” Just 17 minutes after the district court gave this instruction and
the jury exited the courtroom, the jury came back to deliver a verd ict of guilty on both
counts. This appeal follows.
D E C I S I O N
We review a district court’s refusal to issue a requested instruction for an abuse of
discretion. State v. Torres, 632 N.W.2d 609, 616 (Minn. 2001). “It is beyond dispute that
a party is entitled to an instruction on his theory of the case if there is ev idence to support
it.” State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977). If an instruction is “warranted by
the facts and relevant law” it must be given. State v. McCuiston , 514 N.W.2d 802, 804
(Minn. App. 1994), review denied (Minn. June 15, 1994); see also State v. Moser , 884
N.W.2d 890, 905 (Minn. App. 2016) (noting that once a defendant meets “ a burden of
production by making a prima facie showing that the defense applies,” the district court
must give a jury instruction on an affirmative defense).

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A prima facie showing is that which is “based on what seems to be true on first
examination, even though it may later be proved to be untrue .” Black’s Law Dictionary
1382 (10th ed. 2014) (defining “prima facie”) . “[T]he defendant’s burden of making a
prima facie showing that would entitle him to a jury instruction and the defendant’s burden
of proving to the trier of fact by a preponderance of the evidence each element of the
defense proffered are two separate inquiries.” State v. Voorhees, 596 N.W.2d 241, 250 n.2
(Minn. 1999).
In determining whether the defendant has made the required prima facie showing
so as to be entitled to an instruction on an affirmative defense, we, like the trial court, must
view the evidence in the light most favorable to the defendant. State v. Radke, 821 N.W.2d
316, 328 (Minn. 2012). An error in the jury instructions requires reversal unless it was
harmless, meaning that we can say beyond a reasonable doubt the error “had no significant
impact on the verdict.” State v. Kuhnau, 622 N.W.2d 552, 558–59 (Minn. 2001).
I. The district court erred when it refused to instruct the jury on the
affirmative defense of involuntary intoxication.

Appellant argues that the district court erred when it refused to instruct the jury on
the affirmative defense of involuntary intoxication. “A defendant bears the burden of
making a prima facie showing that he is entitled to a jury instruction on the defense of
involuntary intoxication . . . .” Voorhees, 596 N.W.2d at 250. However, once a defendant
makes such a prima facie showing he is “ entitled to the instruction .” State v. Jama, 908
N.W.2d 372, 378 (Minn. App. 2018), aff’d, 923 N.W.2d 632 (Minn. 2019).

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The affirmative defense of involuntary into xication, first adopted by Minnesota in
City of Minneapolis v. Altimus, has three elements. 238 N.W.2d 851, 855–58 (Minn. 1976).
First, the intoxication must have been involuntary. Voorhees, 596 N.W.2d at 250 . This
can consist of intoxication that is: coerced, pathological, by innocent mistake, or that is
unexpected from the ingestion of a medically prescribed drug. Id. Second, “the defendant
must show that [his] intoxication was caused by the intoxicating substance in question and
not by some other intoxicant.” Id. (quotation omitted). Third, the defendant must, due to
the involuntary intoxication, be temporarily insane. Id. Minnesota law interprets this
requirement as meaning that “at the time of committing the alleged criminal act the person
was laboring under such a defect of reason . . . as not to know the nature of the act, or that
it was wrong.” Minn. Stat. § 611.026 (2016); see also Altimus, 238 N.W.2d at 857.
Appellant argues that he established a prima facie case that he had become
involuntarily intoxicated by innocent mistake. The district court concluded, and
respondent now argues, that appellant did not.
Appellant argues that the following evidence is sufficient to at least establish a prima
facie case for the first element, that he was involuntarily intoxicated by innocent mistake.
Appellant testified that at the nightclub , he ordered a club soda to drink at the bar, while
his friend went to the dance floor. He was carrying abo ut $300 in cash that night. After
his friend went to dance, he was approached at the bar by a woman whom he did not know.
He purchased a drink for this woman. After chatting for a while, appellant left his club

8
soda at the bar and went to the bathroom. He then came back and kept chatting with the
same woman at the bar for approximately 20 or 30 minutes.1
Appellant next testified that he stopped talking to this woman when his friend came
back and asked appellant to join him on the dance floor. Appellant did, and the woman
with whom he had been talking did not join them. Appellant testified that after some time,
he got thirsty, so he went back to the bar to buy a bottle of water. At this point, appellant
noticed that the $300 in cash he had been carrying was gone. Appellant also testified that
he did not knowingly consume any substances the evening of his arrest. And appellant
also testified by affirmation that he “must have been slipped something because [he didn’t]
remember the incident.” This chain of events, appellant argues, gave the unknown woman
both motive and opportunity to drug appellant. Crucially, in our analysis , we must view
this evidence in the light most favorable to appellant. See Radke, 821 N.W.2d at 328.
The district court concluded th at because appellant did not directly testify that he
drank from his club soda after he got back from the bathroom or that he “felt weird” shortly
after drinking the water, and there was no direct testimony from someone who saw
something get slipped in app ellant’s drink, appellant had failed to establish even a prima
facie case that he unintentionally consumed alprazolam. Respondent argues that the district
court was correct and cites several cases which hold that speculation is insufficient to
establish a prima facie case for each element of involuntary intoxication.

1 The prosecution’s expert witness, forensic scientist Jody Nelson, testified that it was
impossible for her to estimate when or in what form appellant ingested the alprazolam.

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But while instructive, these cases actually cut against respondent’s arguments. In
State v. Jama, a defendant claimed on appeal that a district court erred in concluding that
he had failed to establish a prima facie case for involuntary intoxication. 908 N.W.2d at
377–78. At trial , he had argued that he smoked a hookah he thought only contained
tobacco, but actually contained some unknown substance, causing him to black out. Id. at
378. We affirmed, holding that the defendant had failed to make a prima facie case on
each element of the defense. Id. at 378–79. As to the element of innocent mistake, we
focused on the facts that Jama:
[D]id not identify what, if any, substance was the source of his
intoxication. He presented evidence that he smoked what he
believed to be flavored tobacco, he became dizzy and vomited,
and woke up in jail. He testified that he never had a reaction
like that to tobacco in the past. He did not present any evidence
that there was any substance other than tobacco in the hookah
and thus did not establish that he was “innocently mistaken as
to the nature of the substance taken ” because he did not
establish that he innocently mistook the shisha that he
voluntarily c onsumed for something other than the flavored
tobacco he believed it to be.

Id. at 378. These facts are a far cry from the specific facts presented by appellant in this
case that he did not knowingly consume alprazolam or any other intoxicating substances,
that there was a reasonable explanation of how and why someone would have wanted to
drug him, and that he tested positive for a high level of alprazolam on the night in question.
The other case cited by respondent is also supportive of appellant’s arguments. In
State v. McClenton , a defendant challenged his convictions for aggravated robbery and
possession of a controlled substance. 781 N.W.2d 181, 183 (Minn. App. 2010) , review
denied (Minn. June 29, 2010). He challenged the district court’s refusal to allow him to

10
argue to the jury the defense of involuntary intoxication. Id. at 189. The only showing
McClenton made to the district court before trial was to proffer through his attorney, “that
in addition to [McClenton’s] use of cocaine during the days leading up to the date of
offense; [McClenton] also smoked marijuana which, [McClenton] believes, was ‘laced’
with an unknown substance. ” Id. at 190. Again, this case involves the consumption of
multiple substances, with a claim of some “unknown” substance being introduced at the
time. Id. There was no evidence that McClenton had actually ingested any substance that
he had not intended to consume. Id. Again, this is materially distinct from the facts of this
case, where the evidence was far more specific. We therefore hold that the district court
erred when it concluded that appellant had not established a p rima face case for the
innocent-mistake element.
The second element of the defense of involuntary intoxication is that the consumed
drug, and not any “other intoxicant, is in fact the cause of defendant’s intoxication at the
time of his alleged criminal conduct .” Altimus, 238 N.W.2d at 85 7. The state drew
appellant’s blood a nd tested it for intoxicants. Alprazolam was the only drug that was
present in appellant’s system. The state conceded at trial that this element was met and
does not change its position on appeal. We agree with the parties that this element was
met.
The third element of involuntary intoxication is that the defendant must meet the
legal definition of temporary insanity in that he or she did not know the nature of the act
or that it was wrong. Id.; Minn. Stat. § 611.026. The district court concluded that appellant
did not establish a prima facie case for this element. While it again noted that this element

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was a “close call,” the district court based its ruling primarily on the fact that no expert
testified that appellant was legally insane at the time he was arrested. It also reasoned that
if expert testimony were not required, “then that means anyone who ingests some substance
unknowingly can simply testify, ‘I don’t remember anything,’ and it would generate this
defense.”
Appellant argues that the evidence of his behavior while he was intoxicated, both
from the security guards and the police, establish es that he did not know the nature of his
act or that it was wrong. He notes that, as discussed in Altimus, his erratic behavior supports
his claim that he was unable to understand what he was doing or that it was wrong and that
his interactions with authority figures do not show that he believed that he had done
anything wrong. In support of his claims, a ppellant also cites testimony from the
prosecution’s expert about the effect that alprazolam can have on a person . Finally,
appellant argues that his testimony regarding his inability to remember what happened that
night leads to a reasonable inference that he did not understand the nature of his actions.
Respondent argues that appellant’s behavior shows that he knew right from wrong.
It also adopts the district court’s reasoning that allowing appellant’s argument “would
allow strategic memory loss advanced through testimony of a defendant to equate to
involuntary intoxication in virtually every criminal case.”
We note the impact of appellant’s testimony, then discuss appellant’s behavior and
the relevant caselaw, analyze the effect of requiring expert testimony, and conclude by
addressing respondent’ s argument that a ruling in appellant’s favor would open the
proverbial floodgates for this defense.

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First, appellant testified that he did not know that he was intoxicated when he left
the club and thought that any odd feelings he was having were the result of the car accident
that he had been in the week before. Appellant testified that as he was walking to his car
he felt groggy, but explained that, “All I knew was I hadn’t taken anything that day for me
to be feeling like this, you know.” After leaving the nightclub and starting to walk back to
the car, appellant did not remember anything else until he woke up in a jail cell.
If the jury believed appellant, it could conclude that he did not understand that he
was getting behind the wheel of his car while intoxic ated because he did not know that he
was intoxicated. This is corroborated by the prosecution’s expert, who testified that,
among other symptoms, alprazolam could cause impairme nt of reasoning and judgment .
This could explain why appellant might not have believed he was intoxicated even when
he was feeling groggy.
Both parties argue that appellant’s behavior on the night of his arrest supports their
differing conclusions regarding whether or not he understood the nature of what he was
doing or whether i t was right or wrong. Because appellant testified that he did not
remember getting back to the parking garage, t he evidence of appellant’s behavior comes
in the form of testimony from the police officers and security guards who were at the scene
where appellant was arrested. This uncontested testimony indicated that: after being
directed to not drive right away by the security guard, appellant sat in his car for roughly
five minutes before driving; after appellant immediately crashed his car into another car in
the parking ramp and the security guards wa ved him down, appellant stopped his car and
waited for police to arrive; and he complied with the police officers’ requests including

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that he take field so briety tests. In viewing this behavior in the light most favorable to
appellant, along with appellant’s testimony that he had no memory of what transpired after
he left the bar, we conclude that the evidence was sufficient to meet the very low bar of a
prima facie showing that appellant did not understand the nature of what he was doing, or
that he did not know it was wrong.
Respondent argues that appellant took “coherent steps” indicating that he was not
temporarily insane. Respondent cites to Voorhees, where the defendant read an owner’s
manual for a rifle, figured out how to load it, parked his car away from his intended victim,
navigated a dark path to get to his victim, and shot the victim 11 times pulling the trigger
after each shot. 596 N.W.2d at 250–51. But Voorhees is distinguishable on its facts
because Voorhees’s actions required problem solving and concentration. Id. Appellant’s
actions that respondent points to, i.e., making his way back to his car, which was parked in
a parking garage lo cated in a building where appellant had pre viously worked for three
years, and then complying with instructions from authority figures, simply did not require
the same level of cognitive activity. Furthermore, the discussion in Voorhees that
respondent cites to does not come from the court’s analysis of the element of mental defect,
it comes from the section where the court concluded that there was no evidence Voorhees
was even intoxicated at all. Id.
Respondent also cites to Jama, but that case is equally unhelpful to its position. 908
N.W.2d at 379. In that case, the court found that the fact that Jama, who was charged with
indecent exposure, tried to hide his exposed penis when police showed up contradicted his
claim that he did not know that what he was doing was wrong. Id. Respondent claims that

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this case supports its argument, but the case actually supports appellant’ s claim. Jama
stands for the proposition that a suspect trying to hide his guilt might be indicative of an
awareness that his behavior was wrong. But here, appellant did not try to hide his guilt.
He complied with the security guards’ requests, as well as those of the police. When police
arrived, appellant offered to take a breath test. Respondent argues that these actions show
an awareness that appellant knew what he was doing was wrong, but, again, the opposite
is true. Appellant’s offer to take a breath test does show that he knows that drinking and
driving is wrong, but construing the evidence in the light most favorable to appellant, it
also could show that he believed that he had done nothing wrong because he did not believe
that he was intoxicated.
Next, the district court correctly noted that there was no direct expert testimony that
appellant met the legal definiti on of insanity when he got in his car to drive home. But i t
is worth noting that neither the district court nor respondent point to any legal authority
which requires expert testimony to establish a prima facie case of involuntary intoxication.
Adopting the district court’s reasoning would effectively create a new rule of law requiring
expert testimony to make out even a prima facie cas e of involuntary intoxication, going
beyond what this court is empowered to do. See Lake George Park, L.L.C. v. IBM Mid -
America Employees Fed. Credit Union , 576 N.W.2d 463, 466 (Minn. App. 1998) (“ This
court, as an error correcting court, is without authority to change the law.”), review denied
(Minn. June 17, 1998).
And the prosecution’s expert testified that alprazolam would be expected to cause
symptoms of “drowsiness, tired, dizziness, you might have impairment of your cognition,

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which is reasoning and judgment as well as psychomotor skills, which is taking your
thought and putting that thought into motion.” Those are symptoms expected in any person
who uses alprazolam, particularly here where appellant had a concentration of the drug in
his bloodstream above the therapeutic range.
Finally, respondent reasons that allowing appellant’s argument here to prevail
would allow the use of the involuntary intoxication defense in “virtually every criminal
case.” This is clearly untrue. There are three elements that must be demonstrated before
a defendant is entitled to an instruction on involuntary intoxica tion. Even if a defendant
could establish a prima facie case on the third element through their own testimony, they
still would have to establish involuntarily intoxication, and that the specific substance they
involuntarily imbibed was the substance that caused them to become temporarily insane to
even receive the instruction.
We conclude that, when viewing the evidence in the light most favorable to
appellant, appellant did establish a prima facie case for the affirmative defense of
involuntary intoxication. Therefore, the district court abused its discretion when it declined
to instruct the jury on involuntary intoxication.2

2 Appellant also argues that the district court erred when it refused to instruct the jury on
general intent. But because we already reverse and remand on the district court’s failure
to instruct the jury on voluntary intoxication , we need not consider appellant’s alternate
argument about general intent.

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II. The district court ’s error in failing to instruct the jury on involuntary
intoxication cannot be said to be harmless beyond a reasonable doubt.

Appellant and respondent contest whether any error was harmless. The note that
the jury sent to the district court during deliberations refute s the claim that any error was
harmless beyond a reasonable doubt, as required by caselaw. See Kuhnau, 622 N.W.2d at
558–59 (requiring that error in instructing the jury must have “had no significant impact
on the verdict” beyond a reasonable doubt to be considered harmless).
Here, after receiving instructions which did not include the defense o f involuntary
intoxication, the jury was sent to deliberate. After roughly one hour and fifteen minutes,
the jury sent a note to the district court questioning whether it could consider whether
appellant knowingly consumed a controlled substance. This note is an important indication
that the jury was considering appellant’s argument that he did not intend to become
intoxicated, but did not know whether it was allowed to do so. The jury’s return of a verdict
within 17 minutes after the district court responded to the jury’s question by indicating that
it had already provided the jury with instructions also supports appellant’s claim that the
failure to include an involuntary intoxication instruction was not harmless beyond a
reasonable doubt.
Respondent argues that any error in the failure to grant an instruction on involuntary
intoxication was surely harmless because the evidence of that affirmative defense was
weak, and because appellant’s credibility was tarnished. But respondent conflates the law.
Accepting respondent’s argument here as true would require both that we , 1) not construe
the evidence in the light most favorable to appellant, as we are required to do, Radke, 821

17
N.W.2d at 328; and 2) make a finding of what the jury would have found credible, which
we are not permitted to do, see State v. Blom, 682 N.W.2d 578, 622 (Minn. 2004).
While the jury may or may not have ultimately believed appellant, the district
court’s error in fail ing to instruct the jury on the affirmative defense of involuntary
intoxication cannot be said to have been harmless beyond a reasonable doubt. Because the
district court abused its discretion in failing to instruct the jury on involuntary intoxication
and the error cannot be said to be harmless beyond a reasonable doubt, we reverse
appellant’s conviction and remand to the district court for a new trial.
Reversed and remanded.