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This opinion will be unpublished and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
A18-1342

State of Minnesota,
Respondent,

vs.

Laurie Ann McIntyre,
Appellant.

Filed July 22, 2019
Affirmed; motion granted
Cochran, Judge

Scott County District Court
File No. 70-CR-16-8820

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

Ronald Hocevar, Scott County A ttorney, Todd P. Zettler, Assista nt County Attorney,
Shakopee, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llant Public Defender, Roy G. Sp urbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Florey, Judg e; and Cochran,
Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant Laurie Ann McIntyre challenges her convictions for two counts of driving
while impaired (DWI), arguing that there was insufficient evide n c e t o s u p p o r t h e r

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conviction on count one, that the district court plainly erred in allowing retrograde
extrapolation evidence of McIntyre’s alcohol concentration, and that the district court erred
in telling the jury that it would end deliberations for the day at 4:20 p.m. McIntyre also
submitted a pro se supplemental brief, which the state moved to strike. Because the pro se
supplemental brief is based on allegations outside of the record, we grant the state’s motion
to strike McIntyre’s pro se suppl emental brief. Because there was sufficient evidence to
support McIntyre’s convictions, and because we find no error by the district court, we
affirm.
FACTS
At approximately 9:30 p.m. on Ma y 7, 2016, a City of Savage pol ice officer was
patrolling Highway 13, looking for speeders. The officer stopped McIntyre for driving 56
miles per hour in a 45 mile-per-hour zone. The officer asked M cIntyre where she was
going, and McIntyre responded that she was going to a Holiday g as station. After the
officer told McIntyre that there was no Holiday gas station in the vicinity, McIntyre
responded that she thought that s he was on Highway 169. The of ficer smelled alcohol
coming from the vehicle and asked McIntyre whether she had been drinking alcohol.
McIntyre initially denied having consumed any alcohol, but later in the evening, after she
was arrested, McIntyre admitted to consuming alcohol at around 5:30 p.m.
The officer asked McIntyre to perform field sobriety tests. The officer administered
the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand test.
McIntyre showed sufficient “clues” of impairment in all three tests to indicate that she was
impaired. During the tests, McIntyre indicated that she was ha ving panic attacks. The

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officer took multiple breaks to calm her down. The officer testified that she did not believe
that McIntyre was actually having panic attacks but rather was trying to avoid getting in
trouble for drinking and driving. The officer arrested McIntyre for DWI.
After transporting McIntyre to the police department, the officer read McIntyre the
implied-consent advisory. McIntyre called an attorney and then agreed to submit to a
breath test, which the officer a dministered. At approximately 11:40 p.m., McIntyre
provided two valid breath samples. The first breath sample sho wed an alcohol
concentration of 0.087, and the second breath sample showed an alcohol concentration of
0 . 0 8 0 . T h e s t a t e c h a r g e d M c I n t y r e w i t h d r i v i n g u n d e r t h e i n f l uence under Minn.
Stat. § 169A.20, subd. 1(1) (20 14), and driving with an alcohol concentration of 0.08 or
more under Minn. Stat. § 169A.20, subd. 1(5) (2014).
The case proceeded to a jury trial . During the trial, McIntyre called a forensic
scientist working for the Minnes ota Bureau of Criminal Apprehen sion (BCA). McIntyre
asked the forensic scientist about the uncertainty of measuring alcohol concentration in a
breath sample. The forensic scientist testified that, to analy ze the uncertainty of
measurement, the BCA averages the breath samples and uses a for mula to create
confidence intervals. A confide nce interval is a range of valu es that you could expect a
true result to fall within. At the 99% confidence interval, the true result should fall within
the range 99 times out of 100. The forensic scientist testifie d that the 99% confidence
interval for a person providing an average breathe sample of 0. 0835, as McIntyre did,
would be from 0.0736 to 0.0934. According to the forensic scie ntist, this means that if
McIntyre were tested 100 times, it is expected that 99 of the r esults would be within that

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range, and one would show an alc ohol concentration outside that r a n g e . T h e f o r e n s i c
scientist stated that 81.92% of the tests would register at 0.08 or higher.
After defense counsel concluded his direct examination, the pro secutor asked the
forensic scientist whether she could determine what an average person’s alcohol
concentration would have been at 9:30 p.m., when the officer pu lled McIntyre over,
compared to the samples that McIntyre provided around 11:40 p.m. The prosecutor asked
the forensic scientist to assume that the average individual had an alcohol concentration of
0.08 around 11:40 p.m. and that the individual had stopped drin king around 5:30 p.m., as
McIntyre had told police that she had done. Defense counsel objected to the question based
on a lack of foundation, and the district court sustained the objection.
The prosecutor then asked the for ensic scientist questions esta blishing how she
would calculate a person’s alcohol concentration at a time prio r to a breath test and the
factors that would go into such a calculation. After establish ing this foundation, the
prosecutor repeated the question about an average person’s alco hol concentration at
9:30 p.m. based on the other assumptions. Defense counsel did not object, and the forensic
scientist answered that an average person would have had an alc ohol concentration
between 0.101 and 0.132 at 9:30 p.m. On redirect, the forensic scientist acknowledged that
she did not personally know whether McIntyre actually stopped drinking at 5:30 p.m. and
that the range she testified to was based on an average person, not McIntyre specifically.
The parties then gave closing arguments, and the district court gave its final jury
instructions. During the district court’s jury instructions, it stated, “Today unless you reach
a verdict before then you will deliberate until 4:20 at which time I will call you back in to

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give you an instruction and release you. Then you would come back tomorrow and report
back at 8:45 to continue in deliberations.” The jury left to deliberate at 4:00 p.m. Outside
the presence of the jury, defens e counsel indicated for the rec ord a concern that the jury
might rush through deliberations to avoid being called back the next day. But defense
counsel did not request that the district court provide any instruction to the jury regarding
that issue or request any other remedy. The jury returned guil ty verdicts on both counts,
dating one verdict form, May 25 at 4:17, and the second verdict form, May 25 at 4:19. The
correct date was April 25.
McIntyre appeals her convictions.
D E C I S I O N
I. The evidence was sufficient to support McIntyre’s conviction on count one.
McIntyre argues that the evidence was insufficient to support h er conviction on
count one, driving under the influence under Minn. Stat. § 169A.20, subd. 1(1). To convict
McIntyre of driving under the influence, the state was required to prove beyond a
reasonable doubt that McIntyre drove a vehicle while she was “u n d e r t h e i n f l u e n c e o f
alcohol.” Minn. Stat. § 169A.20, subd. 1(1); State v. Ards, 816 N.W.2d 679, 686 (Minn.
App. 2012). A person is “under the influence” when she does not possess that clearness of
intellect and control of herself that she otherwise would have. Ards, 816 N.W.2d at 686
(quotation omitted).
W h e n r e v i e w i n g t h e s u f f i c i e n c y of the evidence, we undertake a “painstaking
analysis of the record to determ ine whether the evidence, when viewed in the light most
favorable to the conviction, was sufficient” to support the conviction. State v. Ortega, 813

6
N.W.2d 86, 100 (Minn. 2012) (quotation omitted). We assume that “the jury believed the
state’s witnesses and disbelieve d any evidence to the contrary. ” State v. Caldwell , 803
N.W.2d 373, 384 (Minn. 2011) ( quotation omitted). “[W]e will n ot disturb the verdict if
the jury, acting with due regard for the presumption of innocen ce and the requirement of
proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty
of the charged offense.” Ortega, 813 N.W.2d at 100.
McIntyre likens this case to State v. Elmourabit, 373 N.W.2d 290 (Minn. 1985). In
that case, the defendant exhibited some outward manifestations of impairment from alcohol
consumption, such as slurred speech, the odor of alcohol, and g lassy bloodshot eyes.
Elmourabit, 373 N.W.2d at 293. But the defendant performed normally on dexterity tests
and there was no alcohol test or any other evidence establishin g that the defendant had
consumed alcohol beyond his own admission to drinking a single beer. Id. at 291-93. The
defendant argued that the outward manifestations of impairment were due to the fact that
he was not a native English speaker and was suffering from a me dical issue. Id. at 293.
The supreme court determined tha t the evidence was insufficient to prove beyond a
reasonable doubt that Elmourabit was under the influence of alcohol. Id. at 294.
Unlike in Elmourabit, McIntyre took a breath test and provided two samples, each
of which showed an alcohol concentration above the legal limit. McIntyre also showed
signs of impairment during three field sobriety tests, and the officer testified that McIntyre
was confused about what road she was driving on. A driver’s confusion can be indicative
that she is under the influence. See Steele v. Comm’r of Pub. Safety, 439 N.W.2d 427, 430

7
(Minn. App. 1989) (including confusion among a list of factors that indicated an individual
was under the influence).
McIntyre argues that she failed the field sobriety tests because of her panic attacks,
but the officer testified that she believed the panic attacks were a ruse. Other evidence also
supports the jury’s verdict. The breath tests indicated that M cIntyre had an alcohol
concentration in excess of the legal limit. And the testimony that McIntyre was confused
and failed field sobriety tests s upports the jury’s finding tha t M c I n t y r e w a s u n d e r t h e
influence. See Ards, 816 N.W.2d at 686 (explaining that a person is under the infl uence
when she does not possess that clearness of intellect and contr ol of herself that she
otherwise would have). We conclude that the evidence was sufficient for a jury to find that
McIntyre drove while under the influence of alcohol.
II. The district court did not plainly err by allowing the forensic scientist to
testify about alcohol retrograde extrapolation.

McIntyre argues that the district court abused its discretion by allowing the forensic
scientist to testify about alco hol retrograde extrapolation. A lthough McIntyre initially
objected to the forensic scientist’s testimony due to a lack of foundation, she did not object
to the scientist’s testimony after the prosecutor established f urther foundation for it.
Because McIntyre did not object t o the testimony after the pros ecutor established further
foundation, we review the admission of the testimony for plain error. See State v. Manthey,
711 N.W.2d 498, 504 (Minn. 2006) (“In the absence of an objecti on, we may review the
admission of evidence for plain error.”). “ Under the plain-error doctrine, the appellant
must show that there was (1) an error; (2) that is plain; and (3) the error affected substantial

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rights.” State v. Huber, 877 N.W.2d 519, 522 (Minn. 2016). “An error is ‘plain’ if it is
clear or obvious.” State v. Peltier , 874 N.W.2d 792, 799 (Minn. 2016). “Typically, a
‘plain’ error contravenes case law, a rule, or a standard of conduct.” Id. “The third prong,
requiring that the error affect substantial rights, is satisfied if the error was prejudicial and
affected the outcome of the case.” State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).
The defendant bears the burden of persuasion on this prong, and it is a “heavy burden.” Id.
If all three prongs are satisfied, the reviewing court corrects the error only if it “seriously
affects the fairness, integrity, or public reputation of judici al proceedings.” Huber, 877
N.W.2d at 522 (quotation omitted).
We have previously held that exp ert testimony using retrograde extrapolation to
determine alcohol concentration is admissible. State v. Jensen , 482 N.W.2d 238, 238
(Minn. App. 1992), review denied (Minn. May 15, 1992). McIntyre analogizes this case
to State v. Wolf, in which a district court declined to admit alcohol extrapolation evidence
after concluding that its potential for unfair prejudice outweighed its probative value. 605
N.W.2d 381, 383-84 (Minn. 2000). The supreme court affirmed th e district court,
concluding that the district court did not abuse its discretion under Minn. R. Evid. 403 by
excluding the evidence after determining that the potential for unfair prejudice outweighed
the probative value. Id. at 385. The supreme court noted that the record did not contai n
basic information such as when Wolf last consumed alcohol, the amount and type of
alcohol, or Wolf’s height and weight. Id. The supreme court also noted that “[l]ower
courts have allowed such evidence when based on a proper founda tion.” Id. McIntyre

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relies on Wolf to argue that there was insufficient foundation to introduce t he alcohol
retrograde extrapolation. We are not persuaded.
In this case, the forensic scientist acknowledged that alcohol retrograde
extrapolation involves a number of variables and that the confi dence-interval range she
provided was for an average person, not for McIntyre specifically. The expert further stated
that the range was based on an assumption that the average pers on stopped drinking at
5:30 p.m., as McIntyre told police she had done. As we noted in Jensen, variables affecting
absorption and elimination rates would most likely go to the we ight, rather than the
admissibility of retrograde extrapolation testimony. 482 N.W.2d at 240 n.2. Knowing that
the testimony about alcohol retro grade extrapolation was based on assumptions about an
average person, and that McIntyre’s breath samples showed that she was over the legal
limit at around 11:40 p.m., the jurors were free to assign as much or as little weight to the
alcohol retrograde extrapolation testimony as they felt was appropriate. We conclude that
the district court did not commit error that is plain in allowi ng the alcohol retrograde
extrapolation testimony.
Furthermore, even if the district court had committed error that is plain, we conclude
that any error was not prejudicial and did not affect the outco me of the case. Besides the
forensic scientist’s testimony, the state presented a very strong case, including failed field
sobriety tests, the officer’s testimony that McIntyre was confu sed about which road she
was on, and two breath samples that registered over the legal l imit. Under these
circumstances, we conclude that any error did not affect the ou tcome of the case and
therefore did not affect McIntyre’s substantial rights.

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III. The district court did not abuse its discretion by telling the jury that it
would break for the day at 4:20 p.m. and reconvene the next day.

McIntyre argues that the district court erred by informing the jury that unless it
reached a verdict by 4:20 p.m., th e court would release them fo r the day and the jurors
would then come back the next morning. “District courts are afforded broad discretion and
considerable latitude in choosing the language of jury instruct ions.” State v. Thao , 875
N.W.2d 834, 841 (Minn. 2016) (qu otation omitted). A district c ourt abuses its discretion
“if the jury instructions confuse , mislead, or materially misst ate the law.” State v.
Onyelobi, 879 N.W.2d 334, 353 (Minn. 2016) (quotations omitted). “We will not reverse
a [district] court’s decision on jury instructions unless the [ district] court abused its
discretion.” State v. Mahkuk, 736 N.W.2d 675, 682 (Minn. 2007).
McIntyre cites to State v. Kelley, in which the supreme court held that a district court
erred by giving instructions that could have misled a deadlocked jury into believing that it
was required to reach a verdict. 517 N.W.2d 905, 909 (Minn. 19 94). The supreme court
noted that the instructions “did not provide [a] careful description of the obligations of the
jurors” and that “jurors were left with no sense of the limits of their duty.” Id.
This case is distinguishable from Kelley. In this case, the district court provided the
jurors with an accurate description of their obligations and an accurate description of the
court’s schedule. The district court instructed the jurors that they should deliberate with a
view toward reaching an agreement if they could do so “without violating your individual
judgment” and that the jurors “should not [surrender] your honest opinion simply because
other jurors disagree or merely to reach a verdict.” The distr ict court also instructed the

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jury, “You have pledged yourself to perform your duty honestly, conscientiously, without
fear or favor, putting aside any feelings of bias, prejudice, s ympathy, and basing your
verdict solely on the evidence in this case and the law as I ha ve given it to you.” The
district court clearly and accurately described to the jurors their duties and obligations.
The jury left to deliberate at 4 :00 p.m. and returned guilty ve rdicts on both counts
by 4:19 p.m. The verdict forms listed the date as May 25, rather than April 25. McIntyre
argues that the speed of the deliberations and incorrect date o n the verdict forms indicate
that the jury did not fully deliberate. But a brief deliberati on time does not necessarily
indicate that the jury failed to fully consider the issues. See State v. Dickson, 209 N.W.2d
785, 787-88 (Minn. 1973) (noting that brief deliberations were a result of the strength of
the state’s case).
In an unpublished opinion, we u pheld a conviction in a case in which the jury
deliberated for only 11 minutes before returning a guilty verdi ct. State v. Latham , Nos.
A11-1930, A11-1931, 2012 WL 3792209, at *2, *6-7 (Minn. App. Sept. 4, 2012), rev’d on
other grounds (Minn. June 17, 2014). In that case, the district court at on e point told the
jury that the court would have to leave at noon to attend a golf tournament. Id. at *2. But
in its final instructions, the district court told the jury tha t the deliberations were in the
jury’s hands and that the jury could stay as long as it wanted. Id. at *7. We held that the
statement that the jury could stay as long as it wanted mitigat ed any suggestion that the
jury needed to end its deliberations prematurely. Id. Although our unpublished opinions
are not precedential, we find the reasoning of Latham persuasive. See Dynamic Air, Inc.
v. Bloch, 502 N.W.2d 796, 800-01 (Minn. App. 1993) (noting that unpubli shed opinions

12
of the court of appeals are not precedential but may be persuas ive). In this case, the fact
that the jury deliberated for 19 minutes does not suggest that the jury failed to fully consider
the issues in light of the district court’s instructions that the jury could return the next day
and that the jury must act conscientiously.
Similarly, the fact that the foreperson wrote down the wrong date does not indicate
that the jury failed to fully deliberate. The record does not indicate why the wrong date
was written down, but the date of the jury verdict was not rele vant to the issue before the
jury, which was whether McIntyre was guilty of DWI. The fact that the foreperson wrote
down the wrong date does not indicate that the jury was confused about whether McIntyre
was guilty of DWI.
The district court instructed the jurors to act conscientiously and to not violate their
judgment or surrender their honest opinion solely to reach a verdict. “We assume that the
jury follows a court’s instructions.” State v. Ferguson, 581 N.W.2d 824, 833 (Minn. 1998).
We see no basis to conclude that the jury ignored the district court’s express instructions
and failed to deliberate conscientiously. In light of the stre ngth of the state’s case, the
length of the jury deliberations and the incorrect dates on the verdict forms do not give rise
to an inference that the jury failed to conscientiously conside r the merits of the case. We
find no abuse of discretion under these circumstances.
IV. McIntyre’s pro se arguments are based on factual assertions out side the
record.

The state moved to strike McIntyre’s pro se brief because the f acts and arguments
in the brief are outside of the record of this case. Appellate courts may not base their

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decisions on matters outside the record on appeal. State v. Manley, 664 N.W.2d 275, 286
(Minn. 2003) (granting a motion to strike portions of a brief that were unsupported by any
facts in the record); see also Minn. R. Civ. App. P. 110.01 (stating that the record on appeal
consists of papers filed in the d istrict court, exhibits, and t ranscripts of the proceeding).
McIntyre’s pro se brief attempts to introduce evidence outside of the record and presents
no citation to legal authority; for these reasons, the state’s motion is granted. See State v.
DeWalt, 757 N.W.2d 282, 290 (Minn. App. 2008) (declining to address p ro se arguments
that are either fully addressed in the public defender’s appell ate brief, are dependent on
facts not in evidence, or have no apparent importance, and are not supported by any legal
argument or citation to authority).
Affirmed; motion granted.