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This opinion will be unpublished and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
A18-2063

State of Minnesota,
Respondent,

vs.

Edward Gary Kowalzyk,
Appellant.

Filed October 21, 2019
Affirmed
Larkin, Judge

Traverse County District Court
File No. 78-CR-17-260

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

Matthew P. Franzese, Traverse County Attorney, Wheaton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Larkin, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges his convictions of second-degree driving while i mpaired
(DWI), driving after cancellation, and possession of an open bottle in a motor vehicle,

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arguing that the district court plainly erred by allowing the state to impeach him with
statements he made regarding his breath test in a prior DWI investigation. We affirm.
FACTS
After learning that appellant Edward Gary Kowalzy k’s license to drive was
cancelled as inimical to public safety, Traverse County Sheriff’s Deputy Darrell Thompson
stopped the car Kowalzyk was driving. Deputy Thompson suspected that Kowalzyk was
intoxicated, arrested him for DWI, and transported him to the county jail. There, Deputy
Thompson read Kowalzyk Minnesota’s implied-consent advisory and asked him to submit
to a breath test. Kowalzyk told Deputy Thompson that he would not submit to the test.
The state charged Kowalzyk with second -degree DWI ( test refusal ), third-degree DWI,
driving after cancellation, and possession of an open bottle while in a motor vehicle.1
Before trial, Kowalzyk stipulated that his driver’s license was cancelled based on a
prior DWI offense. The district court noted that Kowalzyk made recorded comments in
response to the implied-consent advisory in this case, in which he told Deputy Thompson
that he would not take a test because law enforcement manipulated the breath test in his
prior DWI and the results of that test were inaccurate. The district court stated that
Kowalzyk’s recorded comments regarding his prior breath test would not be admissible at
trial, “unless it comes up in some other way.” The district court indica ted that it might
allow the state to impeach Kowalzyk with the excluded comments if he “were to testify to
some other reason [he] refused.”

1 The state dismissed the third-degree DWI charge before trial.

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The case was tried to a jury. At trial, Kowalzyk testified about his physical
condition and the pain that he experienced on the day of his arrest. Kowalzyk testified that
when he got out of his car during the traffic stop, he was “hurting.” He explained that he
knew he could not do the field sobriety tests because “with [his] skull fracture [his] balance
isn’t very good” and he could not “hop on one leg” because his “hip is shot.” Kowalzyk
further testified that he did not know what test Deputy Thompson wanted, but he knew that
he could not “blow into things without hurting” and that he was “hurting so bad [that] all
[he] wanted to do was lay down.”
In response to that testimony, the state moved to impeach Kowalzyk with his
previously excluded comments, arguing that his testimony had opened the door to
impeachment. The district court ruled that the state could ask Kowalzyk about his reasons
for refusing the test. The state asked Kowalzyk whether he told Deputy Thompson that he
did not want to take the test because the last breath tes t he took “was a set -up job.”
Kowalzyk did not object to that line of questioning. The district court later explained that
it had allowed the state to impeach Kowalzyk with the excluded com ments because the
court “felt the door had been opened” to that line of questioning.
The jury found Kowalzyk guilty , and t he district court entered judgments of
conviction. Kowalzyk appeals.
D E C I S I O N
“The credibility of a witness may be attacked by any party, including the party
calling the witness.” Minn. R. Evid. 607. A party may impeach a witness by cross -
examination with a prior inconsistent statemen t. Minn. R. Evid. 613(a). “It is well

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established that proper impeachment evidence includes prior inconsistent statements.”
State v. Knaffla, 243 N.W.2d 737, 740 (Minn. 1976).
Kowalzyk did not object to the admission of his comments for impeachment, but he
contends that the admission was improper. This court reviews such an alleged, unobjected-
to error under the plain-error standard. Minn. R. Crim. P. 31.02. The plain-error standard
requires the challenging party to show : (1) error; (2) that was plain; and (3) that affected
substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Error is plain when
it “is clear or obvious, which is typically established if the error contravenes case law, a
rule, or a standard of conduct.” State v. Webster , 894 N.W.2d 782, 787 ( Minn. 2017)
(quotation omitted). If the first three parts of the plain -error test are satisfied, this court
determines whether it is necessary to address t he error to ensure the fairness and integrity
of the judicial proceedings. State v. Kuhlmann, 806 N.W.2d 844, 852-53 (Minn. 2011). If
any p art of the p lain-error test is not satisfied, this court need not consider the others.
Webster, 894 N.W.2d at 786.
Kowalzyk argues that the admission of his comments for impeachment was
erroneous for two reasons: h e did not open the door with his trial testimony and the
comments were irrelevant and overly prejudicial. We address each argument in turn.
Opening the Door
Opening the door occurs when one party, by introducing cer tain material, creates a
right in the opposing party to respond with otherwise inadmiss ible material. State v.
Guzman, 892 N.W.2d 801, 814 ( Minn. 2017). “The opening -the-door doctrine is
essentially one of fairness and common sense, based on the proposition that one party

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should not have an unfair advantage and that the factfinder should not be presented with a
misleading or distorted representation of reality.” State v. Valtierra, 718 N.W.2d 425, 436
(Minn. 2006) (quotation omitted).
In explaining its allowance of the challenged comments, the district court stated, “I
did feel it was fair” and “I felt the door had been opened.” The district court explained that
“[Kowalzyk] was saying to [the] jury that he was in pain. And he just couldn’t do anything
because he was in pain and that’s why he didn’t take [the test]. And he had said a different
thing at the time” of the implied-consent advisory.
Kowalzyk asserts that the district court erred, arguing:
The prosecutor claimed [he] opened the door when he testified
that he could not blow without hurting. This comment did not
open the door to impeachment with his statements that the prior
breath test was a “set -up.” The gist of [ his] excluded
statements was that he would not take the test because he did
not agree with how his prior breath test was conducted. When
the court originally exclu ded these statements, the court said
impeachment with the statements might be possible if [ he]
testified he refused because of a different reason. [He] did not
provide a different reason for refusing the b reath test in his
testimony. [He] explained his medical problems and the pain
he suffered because of them. He was not testifying that he
refused the breath test because of pain. He testified that the
pain was so bad that he did not understand what was going on
and he did not understand what test the deputy offered.

Kowalzyk concludes that because he “did not offer an alternative explanation for his
refusal, he did not open the door” and that, therefore, “[i]t was error for the court to permit
impeachment with evidence of his prior breath test.”
We are not persuaded that Kowalzyk did not offer an alternative explanation for his
test refusal. He most certainly did. On direct examination, Kowalzyk testified about his

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physical condition on the day of his arrest , the pain he was feeling that day, and the pain
he was feeling during the advisory. Kowalzyk told the jury that he “didn’t know what test
[the officer] wanted,” that he “can’t blow into things without hurting,” and that he was “just
hoping [that he] could lay down because [it] was so painful.”
The implication of Kowalzyk’s testimony is obvious: he refused the test because
he did not understand what was going on because he was in pain. Indeed, Kowalzyk’s
appellate brief refers to his “defense that he did not understand what was going on because
he was in pain.” Because Kowalzyk testified about his reason for refusing the test , the
district court correctly concluded that he opened the door to impeach ment evidence
regarding his earlier inconsistent comments regarding his reason for refusal. Not allowing
the state to impeach Kowalzyk under those circumstances would have given Kowalzyk an
unfair advantage and presented the jury with a distorted representation of reality. Thus,
the district court’s allowance of the impeachment was not error, much less plain error.
Relevance and Prejudice
Evidence is not admissible unless it is relevant, that is, it must have a “tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probabl e than it would be without the evidence.” Minn. R. Evid.
401, 402. A district court may exclude relevant evidence if “its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or b y considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Minn. R. Evid. 403. Evidence is unfairly prejudicial

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when it persuades by illegitimate means. State v. Kendell, 723 N.W.2d 597, 609 ( Minn.
2006).
Kowalzyk argues that the district court plainly erred because the challenged
comments were irrelevant and overly prejudicial. As to relevance, Kowalzyk argues that:
It was error to allow the introduction of the excluded
statements because they were not relevant to the determination
of any issue at trial. The state’s purported purpose in
impeaching [him] with the statements was to show he provided
a different reason for refusing the test. The crime of refusal,
however, does not require the state to prove the defendant’s
reason for refusing. It is enough that the defendant refused a
chemical test after being re ad the implied consent advisory.
Because the statements had no bearing on an element of the
crime, they were not relevant and should not have been
admitted.

(Citations omitted.)
Published caselaw has not squarely addressed whether a reasonable-refusal defense
is available in a criminal -refusal case . See State v. Johnson , 672 N.W.2d 235, 242-43
(Minn. App. 2003) (holding narrowly that an instruction on reasonable refusal was not an
abuse of discretion), review denied (Minn. Mar. 16, 2004); State v. Olmscheid, 492 N.W.2d
263, 266 n.2 (Minn. App. 1992) (declining to decide whether or how reasonable refusal
applies in criminal test-refusal cases). Unlike the implied-consent statute, the criminal test-
refusal statute under which Kowalzyk was convicted does not set forth a reasonable-refusal
defense. Compare Minn. Stat. § 169A.53, subd. 3(c) (Supp. 2017) (implied -consent
statute), with Minn. Stat. § 169A.20, subd. 2(1) (Supp. 2017) (criminal test-refusal statute).

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Because the availability of a reasonable-refusal defense in a criminal-refusal case is
undecided, the relevance of Kowalzyk’s reasons for refusing is debatable.2 Thus, we
cannot say that the district court clearly or obviously erred by admitting Kowalzyk’s prior
comments for impeachment purposes . But e ven if the comments were irrelevant,
Kowalzyk’s testimony opened the door to the impeachment.
Lastly, Kowalz yk’s complaint that the comment s were overly prejudicial is not
compelling given his failure to object when the district court allowed the comments to be
used for impeachment . And we discern no unfair prejudice here. The state’s cross -
examination regarding Kowalzyk’s earlier inconsistent comments about the reasons for his
refusal did not persuade by illegitimate means. See Knaffla, 243 N.W.2d at 740 (stating
that proper impeachment evidence includes prior inconsistent statements). Thus, we are
not persuaded that the district court clearly or obviously erred by failing to conclude—sua
sponte—that the challenged statements were overly prejudicial.
Once again, Kowalzyk has failed to establish error that is plain. Because Kowalzyk
has failed to satisfy the requirements of the plain-error test, he is not entitled to relief. See
Webster, 894 N.W.2d at 786 (stating that if any p art of the plain -error test is not met ,
appellate courts need not consider the others). We therefore affirm.
Affirmed.

2 Kowalzyk’s relevancy argument begs the question: Why was his direct testimony
regarding his physical condition and pain during the implied-consent advisory —which
clearly presented a reason for refusing—relevant?