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This opinion will be unpublished and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
A19-0296

State of Minnesota,
Respondent,

vs.

Caleb John Permann,
Appellant.

Filed April 6, 2020
Affirmed
Bratvold, Judge

Itasca County District Court
File No. 31-CR-18-68

Keith Ellison, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Matti R. Adam, Itasca County Attorney, Grand Rapids, Minnesota (for respondent)

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

Considered and decided by Reyes, Presiding Judge; Bratvold, Judge; and Bryan,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this direct appeal from a final judgme nt of conviction for first-degree driving
while impaired (DWI), appellant argues that his conviction must be reversed because

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(1) the evidence is insufficient to establish three qualified prior impaired driving incidents
within the preceding ten years and (2) the district court abused its discretion when it
admitted hearsay evidence. We affirm.
FACTS
The following summarizes testimony rece ived during appellant Caleb John
Permann’s two-day jury trial for first-degr ee DWI. On January 5, 2018, Permann met
with his probation agent at 10:00 a.m. in Gr and Rapids. Permann told her that he used
methamphetamine “two days prior.” After te lling Permann that he would be taken into
custody for violating probation, the agent asked staff to contact law enforcement. Permann
told the agent that “he had driven to [her] office.” The agent did not see Permann driving.
Permann then asked if he could make arrangements for his sport utility vehicle
(SUV) parked outside. Officer Pomplun arrived and overheard Permann say he wanted to
make some phone calls to his employer and to a family member or friend to “get his
vehicle.” Pomplun testified that “Mr. Pe rmann acknowledged that he had used
methamphetamines in the last 48 hours and he had driven to his ap pointment” with his
probation agent. While Permann was on the p hone, Pomplun searched Permann’s driving
record because he thought “there’s a poten tial for a DWI.” After he determined that
Permann had three qualified prio r impaired driving incidents within the past ten years,
Pomplun arrested Permann.
At the jail, Pomplun read Permann his Mi randa rights and Permann gave a recorded
statement stating he drove his black Ford Bronco to the probation agent’s office for a
scheduled meeting. When Pomp lun asked how many DWIs he ha d in the past ten years,

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Permann responded, “Umm, in the past 10 years I’ve had two DWI’s and one . . . DUI for
driving under the influence of marijuana.” When asked if he had three DWIs in the past
ten years, Permann responded, “Yes.” Police obtained a search warrant and Permann gave
a urine sample, which was sent to the Bureau of Criminal Apprehension (BCA) and tested
positive for methamphetamine.
The state charged Permann by complaint w ith DWI in violation of Minn. Stat.
§ 169A.20, subd. 1(7) (2016), which makes it a cr ime to drive, operate, or be in physical
control of a motor vehicle while the person ’s body contains any amount of a controlled
substance, which includes a Schedule II drug. The same count also alleged that Permann
violated Minn. Stat. § 169A.24, subd. 1(1) (2016), which prov ides that a person is guilty
of first-degree DWI if the violation is within ten years of the first of three or more qualified
prior impaired driving incidents (count one). 1 The complaint allege d that Permann had a
2009 driver’s license revocation and two DWI convictions from 2012 and 2015. Permann
pleaded not guilty and did not stipulate to his prior convictions or license revocation.
Outside the presence of the jury on the first day of trial, the state asked the district
court to rule on the admissibility of three exhi bits it intended to offer to prove Permann’s
driving record. The district court heard argum ent about the admissibility of the exhibits.
Exhibit six is certified as a “true and corre ct copy from the records of the Driver and
Vehicle Services Division” of the Department of Public Safety (DPS) of a 2009 notice and
order revoking Permann’s license for DWI (200 9 notice and order of license revocation).

1 The state also charged Permann with violation of a restricted driver’s license under Minn.
Stat. § 171.09, subd. 1(f)(1) (2016), but dismissed this charge on the first day of trial.

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Exhibit seven is certified as “a true copy of the original reco rd in [the] custody” of the
Olmsted County Court Administrator of th e September 28, 2012 c ourt minutes showing
Permann’s DWI conviction (2012 court minutes). Exhibit eight is a certified copy of a 2015
warrant of commitment from Dakota Count y showing Permann’s DWI conviction.
Permann argued that exhibit six was inadmissible because it was the initial, not final, notice
and that it was hearsay. Permann argued that exhibit seven was inadmissible because it was
not a certified copy of the actual conviction a nd court minutes are subject to error. As for
exhibit eight, Permann acknowledged that it was a certified copy of a 2015 DWI
conviction, but noted that irrelevant and prejudicial information was included on the
document and should be redacted. After a brief recess, the district court found that the three
exhibits were “certified records, official records,” and were admissible with some
redactions. 2
During trial, the state offered testimony fr om the probation agent, Pomplun, and a
BCA forensic scientist to establish the facts summarized above. The forensic scientist also
testified that methamphetamine is a Schedule II drug in Minnesota.
The district court received into evidence exhibits six, seven, and eight, discussed
above, and also Permann’s recorded statem ent to Pomplun (exhibit one), and a photo of
Permann’s SUV parked outside his probation agent’s office (exhibit nine). Defense counsel

2 The contested exhibits were initially marked as exhibits three, four, and five, and filed as
court exhibits. The transcript indicates that redacted versions of these exhibits were
received into evidence and published to the ju ry as exhibits six, seven, and eight,
respectively. While the record on appeal doe s not contain redacted exhibits, Permann’s
brief to this court states that redacted exhibits were received into evidence.

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renewed her objections to the ad mission of exhibits six, seven, and eight when they were
offered, and the district court overruled the objections.
After the state rested and Permann waived his right to testify, he moved for a
judgment of acquittal under Minn. R. Crim. P. 26.03, subd. 18(1 )(a), arguing that the
evidence was insuffi cient to establish that he had th ree qualified prior impaired driving
incidents. The district court denied Permann’s motion.
The jury found by special-verdict inte rrogatory that Permann had three qualified
prior impaired driving incide nts within the past ten year s and found Permann guilty of
first-degree DWI. Permann moved for downward dispositional and downward durational
departures. The district court denied Pe rmann’s motions and committed him to the
commissioner of corrections for 62 months with credit for 327 days served. Permann
appeals.
D E C I S I O N
I. The evidence is sufficient to support Permann’s co nviction for first-degree
DWI.

At the outset, the parties disagree about the correct standard of review. Permann
argues that our review is de novo because he presents a legal issue and the facts are
undisputed. The state argues that the “issue is the sufficiency of evidence, which an
appellate [court] reviews in the light most favorable to the verdict.”
When reviewing sufficiency of the evidence, this cour t conducts “a painstaking
analysis of the record to determine whether the evidence, when view ed in a light most
favorable to the conviction, wa s sufficient to permit the jurors to reach the verdict which

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they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). “A reviewing court will not
disturb the verdict if the jury, acting with due regard for the presumption of innocence and
the requirement of proof beyond a reasonable doubt, could reasonably conclude that the
defendant was guilty of the charged offense.” State v. Brandes , 781 N.W.2d 603, 606
(Minn. App. 2010). Permann relies on State v. Tomlin as establishing the de novo standard
of review. But Tomlin decided what elements the state must prove to sustain a conviction
of obstructing the legal process. 622 N.W.2d 546, 548 (Minn. 2001). Tomlin does not
require de novo review for Permann’s sufficiency challenge.3
The state must prove every element of the charged offense beyond a reasonable
doubt. State v. Cross , 577 N.W.2d 721, 726 (Minn. 19 98). Permann was convicted of
violating Minnesota Statutes section 169A.24, subdivision 1(1):
A person who violates sec tion 169A.20 (driving while
impaired) is guilty of first-degree driving while impaired if the
person:

(1) commits the violation within ten years of the first of
three or more qualified prior impaired driving incidents.
A qualified prior impaired driv ing incident is defined as “prior impaired driving
convictions and prior impaired driving-relate d losses of license.” Minn. Stat. § 169A.03,
subd. 22 (2016). A prior impa ired driving-related loss of license includes “a driver’s

3 Some caselaw holds that de novo review a pplies to determine wh ether an appellant’s
conduct is a crime under the charging statute. See State v. Hayes , 826 N.W.2d 799, 803
(Minn. 2013) (reviewing de novo whether a ppellant’s “conduct in this case meets the
definition of a drive-by shoo ting”). But Permann’s sufficie ncy-of-the-evidence argument
contends that the evidence offered to prove his qualified prior impaired driving incidents
was insufficient, not that the incidents themse lves were insufficient to establish qualified
prior impaired driving incidents.

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license suspension, revocation, cancellation, denial, or disqualification under” enumerated
statutes, including sections “169A.50 to 169A.53 (implied consent law)” and section
“169A.54 (impaired driving co nvictions and adjudications).” See Minn. Stat. § 169A.03,
subd. 21(a)(1) (2016).
Permann does not challenge the sufficiency of the evidence offered to prove that he
was guilty of DWI on the morni ng of January 5, 2018, when he met with his probation
agent. Rather, Permann argues that the state failed to offer sufficient evidence establishing
two of the three qualified prior impaired driving incidents committed within the ten years
before his 2018 DWI. On appeal, Permann does not challenge the admissibility of exhibit
eight, the 2015 warrant of co mmitment for a DWI, but argues th at exhibits six and seven
are insufficient to sustain his first-degree DWI conviction.
First, Permann argues that exhibit six is insufficient to pr ove a qualified prior
impaired driving incident because the 2009 notice and order of license revocation was
appealable. Because the state failed to offer a “final notice of revocation,” Permann argues
that the state failed to prove his license was revoked. The state responds that the prosecution
can use “competent and reliable evidence” to prove a license revocation.
Permann cites no legal authority to support his argument that the state had to prove
that his 2009 license revocation was not overturned on appeal. And Permann does not even
claim that he sought judicial review of his 2009 license revocation. A license revocation is
effective when the commissione r of public safety, or a peace officer acting on the
commissioner’s behalf, gives the notice and orde r of revocation to the driver. Minn. Stat.
§ 169A.52, subd. 6 (2016); see also State v. Goharbawang, 705 N.W.2d 198, 201 (Minn.

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App. 2005) (determining that license “revocati on takes effect when th e officer issues the
notice and order of revocation”), review denied (Minn. Jan. 17, 2006). Even if we assume
that Permann sought judicial review of his 20 09 license revocation, a driver’s petition for
judicial review “does not stay the revocation.” Minn. Stat. § 169A.53, subd. 2(c) (2016).
Because a notice and order of revocation is effective when the commissioner or
peace officer “notifies the [driver] of the in tention to revoke” his license, and a qualified
prior impaired driving incident includes a “loss of license” by revocation, we conclude that
exhibit six is sufficient eviden ce to establish that Permann had a qualified prior impaired
driving incident in 2009. See Minn. Stat. § 169A.52, subd. 6; Minn. Stat. § 169A.03,
subd. 21.
Next, Permann argues that exhibit seve n, 2012 court minutes of Permann’s DWI
conviction, is not “an official record of a conviction” and th us is insufficient to prove a
qualified prior impaired driving incident. The state argues that the 2012 court minutes are
a certified court record and thus are “competent and reliable.”
Minn. Stat. § 609.041 (2016) provides:
In a criminal prosecution in which the degree of the
crime or the penalty for the crime depends, in whole or in part,
on proof of the existence of a prior conviction, if the defendant
contests the existence of or factual basis for a prior conviction,
proof of it is established by co mpetent and reliable evidence,
including a certified court record of the conviction.

In State v. Eller, this court held that “section 609.041 does not mandate that only a certified
record may be used to prove a prior convicti on. Rather, it requires only that proof of the
[prior] conviction is establis hed by competent and reliable evidence.” 780 N.W.2d 375,

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380 (Minn. App. 2010), review denied (Minn. June 15, 2010). Eller also clarified that “[t]he
statute does not limit such proof to a certified court record” and held that a sworn statement
in the probable-cause section of a complain t was competent and reliable evidence to
establish the appellant’s prior convi ction at a stipulated-facts trial. Id. at 380-81. We
conclude that the 2012 court minutes of Permann’s DWI conviction is competent and
reliable evidence and exhibit seven is sufficient to establish Permann committed a qualified
prior impaired driving incident in 2012.4 Thus, we conclude that the evidence is sufficient
to support Permann’s conviction for first-degree DWI.
II. The district court did not abuse its discretion when it admitted exhibits six and
seven.

Permann argues that the district court abused its discretion when it admitted exhibits
six and seven because both are inadmissible hearsay. The state argues that the district court
properly admitted both exhibits u nder the public-records exception. See Minn. R. Evid.
803(8). We review a district court’s evid entiary rulings for abuse of discretion. State v.
Chomnarith, 654 N.W.2d 660, 665 (Minn. 2003). This court will not overturn a district

4 This court, in other unpublished opinions, has rejected similar challenges to certified court
documents received as evidence of prior convictions. Although this court’s unpublished
opinions are not precedential, th ey have persuasive value. Dynamic Air, Inc. v. Bloch ,
502 N.W.2d 796, 800 (Minn. App. 1993); Minn. Stat. § 480A.08, subd. 3 (2018). See, e.g.,
State v. Hazelton , No. A11-262, 2012 WL 426578, at *6 (Minn. App. Feb. 13, 2012),
(observing that Minn. Stat. § 60 9.041 does not limit proof of a prior conviction to only a
certified copy of a judgment of conviction), review denied (Minn. Apr. 25, 2012); State v.
Interian, No. A12-1462, 2013 WL 1859049, at *3 (Minn. App. May 6, 2013) (determining
that certified DPS driving record was “competent and reliable evidence of appellant’s prior
license revocations”).

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court’s evidentiary ruling unle ss it “abused its discretion and that the abuse of discretion
prejudiced the appellant.” State v. Pendleton, 706 N.W.2d 500, 510 (Minn. 2005).
Hearsay is “an oral or written assertion” th at is “offered in ev idence to prove the
truth of the matter asserted.” Minn. R. Evid . 801(a), (c). Hearsay is not admissible unless
it falls under an enumerated exception. Minn. R. Evid. 802. The public-records exception
in Minn. R. Evid. 803(8) provides th at public records and reports are not excluded by the
hearsay rule under certain circumstances:
Unless the sources of information or other
circumstances indicate lack of trustworthiness, records,
reports, statements, or data compilations, in any form, of public
offices or agencies, setting forth (A) the activities of the office
or agency, or (B) matters obser ved pursuant to duty imposed
by law as to which matters there was a duty to report,
excluding, however, in criminal cases and petty misdemeanors
matters observed by police officers and other law enforcement
personnel, or (C) in civil actions and proceedings except petty
misdemeanors and against the State in criminal cases and petty
misdemeanors, factual findings resulting from an investigation
made pursuant to authority granted by law.

First, Permann argues that exhibit six was not admissible because the 2009 notice
and order of license revocation is an initia l, preplea notice and results from “matters
observed” by police officers. Th e state responds that the district court properly admitted
exhibit six because it relates to the revocation of a driver’s li cense, “which is an activity
that is the responsibility of DPS.” See Minn. Stat. § 171.17 (2016) (identifying the
circumstances that require DPS to revoke a dr iver’s license). The st ate also argues that
exhibit six was not offered to prove the trut h of any matter observed by law enforcement,
but is a DPS record.

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DPS certified that the 2009 notice and order of license revocation was “a true
and correct copy from the records of the Dr iver and Vehicle Serv ices Division of the
Department of Public Safety.” On appeal, Permann has not offered reasons why exhibit six
lacks trustworthiness. We determine that the district court did not abuse its discretion in
admitting exhibit six under rule 803(8), the public-records exception, because the 2009
license revocation notice is a record of a public agency’s activity, the DPS.
Second, Permann argues that exhibit seven, 2012 court minutes, was not admissible
under the public-records exception because court minutes “are subject to error, subject to
the clerk’s entry of those minutes” and “indicate a lack of trustworthiness.” The state argues
that exhibit seven was admissible under the public-records exception.
Permann identifies no errors in the 2012 c ourt minutes, nor does he allege that the
minutes are inaccurate. The 2012 court minutes are the certified public records of the
Olmsted County court, a public office, thus exhibit seven records “the activities” of a public
office. See Minn. R. Evid. 803(8); see also State ex rel. McGuire v. Tahash , 109 N.W.2d
762, 763 (Minn. 1961) (“The minutes of the tr ial court are kept pursuant to law and, as
such, are prima facie evidence of the facts required or permitted by law to be so recorded.”)
(footnote omitted).
The state relies on State v. Romine , in which this court de termined that “[p]ublic
records, such as an affidavit from a district court file, are admissible as an exception to the
hearsay rule.” 757 N.W.2d 88 4, 893 (Minn. App. 2008), review denied (Minn. Feb. 17,
2009). In Romine, we considered whether the distri ct court abused its discretion by
admitting an affidavit of service as a trial exhibit. Id. We concluded that the affidavit did

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not appear to lack trustworthiness and was a certified copy of a public record, so its
admission was within the district court’s discretion. Id. Here, the 2012 court minutes are
like the affidavit of service in Romine because there is no indication that the minutes lack
trustworthiness and the certified minutes “are a true copy of the or iginal record.” We
conclude that the district court did not abus e its discretion when it admitted exhibit seven
under rule 803(8).5
Even if we were to determine that the district court abused its discretion by admitting
one or both of the exhibits, Permann must then show that he was prejudiced by the
erroneous admission. See Pendleton, 706 N.W.2d at 510. Permann argues the jury could
not have found that he committed three qualif ied prior impaired driv ing incidents in the
last ten years without exhibits six and seven. We are not persuaded because the jury heard
Permann’s recorded statement admitting that he had three DWI convictions in the last ten
years. We conclude that even if the district court abused its discretion in admitting exhibits
six and seven, Permann was not prejudiced because the record in cludes other evidence
establishing that Permann had three qualified pr ior impaired driving incidents in the ten
years before his 2018 DWI.
Affirmed.

5 The parties also argue whether another exception to the hearsay rule applies, rule 803(22).
Because we affirm admission under rule 803(8), we do not consider the parties’ arguments
under rule 803(22).