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This opinion will be unpublished and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
A19-0051

State of Minnesota,
Respondent,

vs.

Alfonso Quiroz,
Appellant

Filed December 9, 2019
Affirmed
Kirk, Judge*

Clay County District Court
File No. 14-CR-18-1262

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

Brian Melton, Clay County Attorney, Tara B. Nagel, Assistant County Attorney,
Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Publ ic Defender, Suzanne M. Senecal -Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Smith, Tracy M., Judge; and
Kirk, Judge.

* Retired judge of the Mi nnesota 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
KIRK, Judge
Appellant challenges his convictions of driving while impaired (DWI) and fleeing
a police officer in a motor vehicle, arguing that the prosecution committed misconduct by
eliciting evidence that violated his right to remain silent and to due process , and that the
district court denied him his r ight to present a complete defense. Appellant makes
additional arguments in a pro se supplemental brief. We affirm.
FACTS
In April 2018, respondent State of Minnesota charged appellant Alfonso Quiroz
with DWI test refusal under Minn. Stat. § 169A.20, subd. 2(1) (Supp. 2017), felony first-
degree DWI under Minn. Stat. § 169A.20, subd. 1(1) (2016), and felony fleeing a peace
officer in a motor vehicle under Minn. Stat. § 609.487, subd. 3 (2016).
The case proceeded to trial, and appellant sought to use an al ternative-perpetrator
defense to argue that someone else had committed the crimes with which he was charged.
Before trial, appellant notified the state and the district court of his intent to use the defense
and moved to introduce evidence to support his defense theory, requesting that the district
court allow him to name the alleged alternative perpetrator. The only evidence appellant
put forth to support his alternative-perpetrator defense was a name . At the hearing,
appellant’s counsel explai ned that there was no additional information to disclose. The
district court ruled that because the evidence was “just a name,” and there was not “any
tendency to connect [the] name of some in dividual with the charged crime,” appellant
could not name the alleged alternative perpetrator at trial.

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At trial, Moorhead Police Department Officer Cooper Gauldin testified that during
the early morning hours of April 1, 2018, he received a report that a car had fled from a
traffic sto p in Fargo. He testified t hat he observed the suspect car traveling through
Moorhead and confirmed that the car’s license plate and description matched the fleeing
car. He explained that he tried to conduct a traffic stop, but that the car continued to drive
away from him. He continued to pursue the car as it reached speeds around 95 to 100 miles
per hour.
Moorhead Police Department Officer Zachary Johnson assisted O fficer Gauldin in
the pursuit. He testified that he had planned to put down stop sticks, but the car was
traveling too fast and he was unable to do so. He caught up to the car, and when the fleeing
car passed him, he saw an individual in the driver’s seat, but could not see into the back of
the car.
The officers continued to follow the car until it came t o a stop when it crashed into
part of a railroad track at an intersection and struck a pole. Officer Gauldin described that
appellant got out of the dr iver’s side door of the car and he “began to run . . . eastbound
along the railroad tracks.” He further testified that he did not see anyone else in the car
and that as far as he knew, there were no other individuals in the area. Officer Johnson
testified that the man who got out of the car had the same “basic characteristic s” as the
person he saw driving the car that had passed him. Officer Gauldin testified that when he
made contact with appellant, he observed that a “strong odor of alcohol [was] coming from
[appellant’s] person,” that his speech was slurred , that he was having a hard time
maintaining his balance, and that his eyes were “extremely bloodshot and watery.” Officer

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Gauldin believed that appell ant was impaired by alcohol and transported him to the law
enforcement center to complete field sobriety testing.
At the law enforcement center, ap pellant refused to perform field s obriety tests.
Officer Gauldin read appellant Minnesota’s implied-consent advisory, but a ppellant told
Officer Gauldin that he “was not going to perform the field sobriety tests because he was
guilty” and refused to take a breath test. Officer Gauldin testified that at no time during
his interaction with appellant did appellant mention that another individual had been
driving his car, and testified that he did not think it was possible that someone else had
been driving the car.
Appellant testified that on the day of the incident he had “no control” of the situation
because he was a passenger in someone else’s car. He explained that after the car crashed,
he crawled over the center console to get out of the car from the driver’s side because the
passenger-side door would not open . He testified that when he refused the breath test he
said that he was guilty, but that he meant he “was guilty of having drinks” and “going with
somebody that was going to do that.”
On cross-examination, appellant testified that the car that police had stopped was
registered to his wife. He admitted that when Officer Gauldin asked him to perform field
sobriety tests, he did not tell Officer Gauldin that he was not driving, that he did not tell
the officers he was a passenger, and that he failed to mention someone else had been with
him.
The jury found appellant g uilty of the charged offenses. The district court entered
judgments of conviction on counts 2 and 3 and sentenced appellant to a 60-month prison

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term on count 2, and a 19-month prison term on count 3 to run concurrent with count 2.
This appeal follows.
D E C I S I O N
I. The prosecutorial misconduct did not affect appellant’s substantial rights
and therefore a new trial is not warranted.

Appellant argues that the prosecutor “violated [his] constitutional rights to remain
silent and to due process” by eliciting evidence, during his/her case-in-chief and on cross-
examination, that appellant did not tell officers that someone else was driving the car.
Because appellant did not object at trial, we apply the modified plain-error test and consider
whether there is “ (1) error, (2 ) that is plain, and (3) affects substantial rights.” 1 State v.
Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Error is plain if it is clear or obvious, and is
typically shown if the error “contravenes case law, a ru le, or a standard of conduct.” Id.
“[T]he state bears the burden of persuasion on claims of prosecutorial misconduct to
demonstrate that the misconduct di d not affect substantial rights. ” State v. Hill, 801
N.W.2d 646, 654 ( Minn. 2011) (quotation omitted). If the state fails to carry its burden,
we then assess whether to address the error to ensure fairness and the integrit y of the
judicial proceedings. State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007).

1 The Minnesota Supreme Court has reviewed the state’s use of a defendant’s silence under
the standard plain -error framework and the burden -shifting, modified -plain-error
framework. Compare State v. Lilienthal , 889 N.W.2d 780, 785 ( Minn. 2017) (applying
standard plain-error framework), with State v. Dobbins, 725 N.W.2d 492, 508 (Minn. 2006)
(applying modified-plain-error framework). Because the alleged error is attributable to the
prosecutor, we apply the modified plain-error standard.

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Appellant’s plain-error argument is premised on his right not to be penalized for
exercising his right not to incriminate himself. Both the United States and Minnesota
Constitutions guarantee the right of a person in a criminal matter to remain silent. U.S.
Const. amend. V; Minn. Const. art. I, § 7. Because exercising this right may be erroneously
interpreted as an admission of guilt, admitting evidence of a defendant’s silence may
deprive the defendant of a fair trial. Doyle v. Ohio , 426 U.S. 610, 6 19, 96 S. Ct. 2240,
2245 (1976). A prosecutor’s reference to a defendant’s post -arrest, post-Miranda silence
is a violation of due process because it comments on the defendant’s exer cise of a
constitutional right. Id. at 618, 96 S. Ct. at 2245. The state may not use a defendant’s post-
arrest, post -Miranda silence as substantive evidence in its case -in-chief, Wainwright v.
Greenfield, 474 U.S. 284, 292, 106 S. Ct. 634, 639 (1986) , or to impeach the defendant
during cross-examination, Doyle, 426 U.S. at 611, 96 S. Ct. at 2241.
Appellant asserts that it was plain error for the prosecution to ask, during its direct
examination of Officer Gauldin, about “whether [appellant] ever told him another person
was driving the car that night,” and for the prosecution to ask, during cross-examination,
questions about whether appellant told Officer Gauldin that someone else was driving the
car that night. As appellant points out, these questions referred to his post-arrest, post-
Miranda silence because his silence occurred after he had been read the implied -consent
advisory, arrested, and given a Miranda warning. The state concedes that some questions
asked by the prosecutor were plain error but argues that the questions did not affect
appellant’s substantial rights.

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The prosecution’s questioning appears to have been in response to appellant’s
defense theory that someone e lse had been driving the car. But we do not address the
alleged errors further because even if the errors were plain, appellant’s substantial rights
were not affected. If an appellant seeks reversal of an unobjected-to claim of prosecutorial
misconduct, the state avoids reversal if it shows that “there is no reasonable likelihood that
the absence of the misconduct in question would have had a significant effect on the verdict
of the jury.” Hill, 801 N.W.2d at 654 (quotation omitted). When deciding whether the
state has met this burden, we consider “(1) the strength of the evidence ag ainst the
defendant; (2) the pervasiveness of the improper conduct; and (3) whether the defendant
had an opportunity (or made efforts), to rebut the prosecutor’s improper suggestions.” Id.
at 655.
At trial, t he evidence against appellant was strong. Despite appellant’s assertion
that someone else had been driving the car, both officers testified that they only saw one
person inside the fleeing car and that there were no other individuals near the scene once
the car was stopped . The fleeing car was registered to appellant’s wife. When officers
were finally able to stop the car, appellant got out from the driver’s door and ran, and when
officers finally apprehended him, he appeared to have been impaired by alcohol, and later
refused to take a breath test and told Officer Gauldin that he was guilty . Moreover, the
prosecution’s improper use of appellant’s silence was not pervasive . The alleged
misconduct was limited to only a few instances in a two-day trial, and appellant had an
opportunity to rebut the evidence while presenting his case and after the state’s cr oss-

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examination. Because the state has met it burden to show appellant’s substantial rights
were not affected, a new trial is not warranted.
II. The district court did not violate appellant’s right to present a complete
defense.

Appellant next argues that “ [t]he district court violated [his] right to present a
complete defense by preventing him from naming the person driving the car.” Even where
a defendant alleges that his inability to present a complete defense violates his
constitutional rights, we review evidentiary questions for an abuse of discretion. State v.
Wilson, 900 N.W.2d 373, 384 (Minn. 2017).
A criminal defendant is guaranteed a constitutional right to present a meaningful
defense. State v. Ferguson , 804 N.W.2d 586, 590 -91 ( Minn. 2011). That right
encompasses, among other things, “the right to present the defendant’s version of the facts
. . . to the jury so it may decide where the truth lies.” Washington v. Texas, 388 U.S. 14,
19, 87 S. Ct. 1920, 1923 (1967). But, “[c]ourts may limit the defendant’s evidence to
ensure that the defendant does not confuse or mislead the jury.” Ferguson, 804 N.W.2d at
591.
Included within the righ t to present a complete defense is the right to present
evidence showing that an alternative perpetrator committed the crime with wh ich the
defendant is charged . Id.; State v. Nissalke , 8 01 N.W.2d 82, 99 ( Minn. 2011).
“Determining whether alternative perpetrator evidence was improperly excluded at trial
involves a two -step analysis.” State v. Atkinson , 774 N.W.2d 584, 590 (Minn. 2009).
“First, we must determine whether the defendant laid a proper foundation for admission of

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such evidence by offering evidence that has an inherent tendency to connect the alternative
perpetrator to the commission of the charg ed crime.” Id. If the defendant fails to lay a
proper foundation, the alternative perpetrator defense will not be permitted ; but if the
defendant lays a proper foundation, he may then introduce evidence of a motive of the third
person to commit the crime , threats by the third person, or other miscellaneous facts
tending to prove the third party committed the crime. Id.
When appellant notified the state and the district court of his in tent to rely on the
alternative-perpetrator defense at trial, the only evidence he offered to support his theory
was that “ [someone else] committed the crime with which [appellant] is charged.” He
offered no further evidence to support his theory, and the district court therefore properly
rejected his motion because he had given “no information,” and the name alone provided
“no connection” between the cr ime and the alleged perpetrator . And the district court ’s
ruling did not bar appellant from putting forth a meaningful defense. At trial, appellant
testified at length regarding the series of events that led to his arrest and his testimony
suggested that someone else had been driving the car.
Because appellant did not offer any evidence connecting someone else to the
charged offenses and, because he was not precluded from presenting a complete defense,
the district court did not abuse its discretion by prohibiting appellant from naming the
alleged alternative perpetrator at trial.
III. Appellant’s pro se arguments do not warrant relief.
In a pro se supplemental brief, appellant argues that the officers committed perjury
while testifying at trial and that transcripts were incomplete.

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Appellant cites no authority and provides no argumen t to further his assertion s.
Because the issues were not adequately briefed and no prejudicial error is obvious on mere
inspection, we do not consider appellant’s argument.2 See State v. Andersen, 871 N.W.2d
910, 915 (Minn. 2015) (stating that an assignment of error in a brief based on mere assertion
and not supported by argument or authority is waived unless prejudicial error is obvious
on mere inspection).
Affirmed.

2 Moreover, the re cord contradicts his argument. His argument regarding the officer’s
testimony was a credibility issue for the jury. See State v. Steinbuch, 514 N.W.2d 793, 800
(Minn. 1994) (explaining that it is well -settled in Minnesota that it is within the province
of the jury to determine the credibility and weight to be given to the testimony of any
individual witness). In addition, appellant’s argument that the transcripts are incomplete
is mistaken. The transcripts that he claims are incomplete are included in the record.