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This opinion will be unpublished and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
A19-0339

State of Minnesota,
Respondent,

vs.

Allison Elizabeth Gardner,
Appellant.

Filed January 13, 2020
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-CR-16-10207

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

Jesse D. Berglund, Eden Prairie City Attorney, Gregerson, Rosow, Johnson, & Nilan, Ltd.,
Minneapolis, Minnesota (for respondent)

Charles A. Ramsay, Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville, Minnesota
(for appellant)

Considered and decided by Johnson, Presiding Judge; Florey, Judge; and Klaphake,
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
JOHNSON, Judge
A Hennepin County jury found Allison Elizabeth Gardner guilty of driving while
impaired based on evidence that she appeared intoxicated after a minor collision and that
a blood test revealed an alcohol concentration of 0.137. Gardner challenges her conviction
in two ways. We conclude that the district court did not err by allowing the state to present
the testimony of a rebuttal witness . We also conclude that, although the prosecutor
engaged in misconduct by disparaging Gardner’s expert witness in closing argument s, the
misconduct is harmless. Therefore, we affirm.
FACTS
On April 14, 2016, at approximately 8:00 a.m., Gardner was involved in a minor
three-vehicle accident on U.S. Highway 212 in the city of Eden Prairie. An investigating
state trooper perceived that Gardner had bloodshot a nd watery eyes, that her speech was
slurred, that she smelled of alcohol, and that she was unsteady o n her feet. Gardner
performed poorly on field sobriety tests. The trooper arrested her for driving while
impaired and obtained a search warrant authorizing a blood draw. Gardner was transported
to the Hennepin County Medical Center (HCMC), where a sample of her blood was drawn.
A subsequent test of the blood sample revealed an alcohol concentration of 0.137.
The state charged Gardner with fourth -degree driving while impaired, in violation
of Minn. Stat. § 169A.20, subd. 1(1) (2014), and fourth-degree driving while impaired due
to an alcohol concentration of 0.08 or more, in violation of Minn. Stat. § 169A.20,
subd. 1(5).

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The case was tried to a jury on four days in January of 2019. The state called four
witnesses in its case -in-chief: two s tate troopers, who investigated the collision and
observed Gardner’s behavior; a forensic scientist employed by the Minnesota Bureau of
Criminal Apprehension (BCA), who tested Gardner’s blood sample ; and one of the other
drivers involved in the collision. One of the state troopers testified that he provided an
HCMC phlebotomist with a BCA-approved blood-draw kit. The BCA forensic scientist
testified on cross-examination that she did not know the procedures used by the HCMC
phlebotomist who drew Gardner’s blood sample.
After the state rested its case, Gardner called only one witness, Thomas Burr, who
was qualified as an expert witness on the subject of forensic toxicology. Burr questioned
the circumstances and procedures of the blood draw, including the credentials of the
HCMC phlebotomist who drew Gardner’s blood and the equipment used , facts that Burr
testified are “essential . . . to ensure that it’s an accurate sample.” Burr testified that he did
not know whether the phlebotomist used an alcohol-based swab or an appropriate needle
or whether the collection tubes were sterile and intact. He testified that the blood -test
results could be inaccurate if the phlebotomist who drew the blood sample was not
qualified, did not use an appropriate needle, used an alcohol -based swab, or used a
compromised collection tube. He further testified that the blood -test result could be
unreliable because the blood sample took six days to reach the BCA by mail.
After Gardner rested her case, the state called the phlebotomist as a rebuttal witness.
Gardner objected, arguing that the phlebotomist’s testimony was not proper rebuttal
evidence and would be unfairly prejudic ial. The prosecutor explained that the

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phlebotomist’s testimony would rebut Burr’s expert testimony, which had emphasized the
absence of testimony by the phlebotomist. The district court overruled Gardner’s objection
on the ground that rebuttal testimony was a ppropriate. The phlebotomist testified about
her qualifications, the procedures she followed during the blood draw, and the equipment
she used during the blood draw, including the fact that she used a non-alcohol-based swab
and a needle smaller than that provided in the BCA-approved blood-draw kit.
In closing argument s, Gardner’s trial attorney argued that the state did not satisfy
its burden of proof, in part because of errors and “unknowns” surrounding the blood draw
and blood test . In the state’s rebuttal closing argument , the prosecutor responded as
follows:
Now, let’s talk about Mr. Burr as [Gardner ’s trial
attorney] brought him in as an expert. He had a respectable
career, working for the St. Paul crime lab for 21 years, and now
he’s brought in as defense expert. Used to work for the State,
testify on behalf of the State, now testifying for the defense.
Essentially a mercenary.

Gardner’s trial attorney objected, and the district court sustained the objection. The
prosecutor then stated, “Ess entially he’s someone who is paid to provide answers. ”
Gardner’s trial attorney again objected, and the district court called counsel to the bench
for a sidebar discussion. After the conclusion of closing arguments, outside the presence
of the jury, Gardner’s trial attorney presented arguments to the district court in support of
three objections to the state’s rebuttal closing argument, including his objection to the word
“mercenary.” The district court stated that “none of the arguments that were made, even

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the ones that were improper, were so improper as in my opinion to compromise the fairness
of the process.”
The jury found Gardner guilty o f both of the offenses charged . The district court
sentenced Gardner to 30 days in the workhouse but stayed 28 days for two years. Gardner
appeals.
D E C I S I O N
I. Rebuttal Evidence
Gardner first argues that the district court erred by allowing the state to call the
phlebotomist as a rebuttal witness.
The subject of rebuttal evidence is governed by a rule of criminal procedure: “The
prosecutor may rebut the defense evidence, and the defense may rebut the prosecutor’s
evidence.” Minn. R. Crim. P. 26.03, subd. 12(g). Rebuttal evidence offered by the state is
defined as evidence that “explains, contradicts, or refutes the defendant’s evidence.” State
v. Swaney, 787 N.W.2d 541, 563 (Minn. 2010) (quotation omitted). This court applies an
abuse-of-discretion standard of review to a district court’s decision to admit rebuttal
evidence. Id. at 562.
Gardner contends that the district court erred on the ground that the state generally
may present rebuttal evidence “only after [ a defendant has] presented unexpected
testimony in his or her case.” Gardner cites two opinions in support of this contention. See
State v. Eling, 355 N.W.2d 286, 291-92 (Minn. 1984); State v. Anderson, 405 N.W.2d 527,
531 (Minn. App. 1987), review denied (Minn. July 22, 1987). In response, the state
contends that the cited opinions do not support Gardner’s contention and that there is no

6
requirement in the applicable caselaw that the defendant’s evidence that the state wishes to
rebut must have been unexpected. We agree with the state’s interpretation of the caselaw.
There is no such requirement in the opinions cited by Gardner, and we are not aware of
any other caselaw that imposes such a requirement. Furthermore, there is no such
requirement in the applicable rule of criminal procedure. See Minn. R. Crim. P. 26.03,
subd. 12(g). As stated above, rebuttal evidence is proper if it “explains, contradicts, or
refutes the defendant’s evidence.” Swaney, 787 N.W.2d at 563. That test may be satisfied
if the defendant’s evidence was expected or was unexpected.
Gardner also contends that the district court erred on the ground that , as a general
matter, the purpose of rebuttal evidence “is to cut down the defendant’s case and not merely
to confirm the case in chief through restatement or new facts.” See State v. Walker , 235
N.W.2d 810, 815 (Minn. 1975). In this case, the state’s rebuttal evidence did not merely
confirm the evidence introduced in the state’s case-in-chief. The phlebotomist’s testimony
concerning her training and the procedures she used during the blood draw had not been
introduced in the state’s case -in-chief. Because there was no such evidence , Gardner
introduced expert evidence to cast doubt on the accuracy and reliability of the blood -test
result. Gardner’s expert evidence prompted t he state to introduce the evidence t hat her
expert witness had said was lacking. In that way, the state’s rebuttal evidence was
responsive to Gardner’s evidence.
Gardner further contends that the state did not have a “good reason” to withhold the
testimony of the phlebotomist during its case-in-chief and that the state attempted to “game
the order of trial in order to gain a strategic advantage.” She further contends that her trial

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attorney, when developing trial strategy, relied on the state’s decision not to call the
phlebotomist in its case-in-chief. These contentions appear to assume that the state has an
obligation to introduce all of the evidence it possesses during its case-in-chief, or that the
state has an obligation to foresee or predict the evidence that a defendant will introduce
during the defense case. To the contrary, the rule and the caselaw allow the state to listen
to the defendant’s evidence and assess its persuasiveness and then consider offering
rebuttal evidence. The key question is whether the state’s pr offered rebuttal evidence
“explains, contradicts, or refutes the defendant’s evidence.” Swaney, 787 N.W.2d at 563.
In this case, t he state’s rebuttal evidence satisfies that test. We also note that the state
included the phlebotomist on its wi tness list , which made clear to Gardner that the
phlebotomist might be called as a witness at some point during the trial.
Thus, the district court did not err by allowing the state to call the phlebotomist as a
rebuttal witness.
II. Prosecutorial Misconduct
Gardner also argues that the prosecutor engaged in misconduct by disparaging her
expert witness during closing arguments. Gardner’s argument is based on the prosecutor’s
statements that Burr is “[e]ssentially a mercenary” and that he is “paid to provide answers.”
The right to due process of law includes the right to a fair trial, and the right to a fair
trial includes the absence of prosecutorial misconduct. Spann v. State , 704 N.W.2d 486,
493 (Minn. 2005); State v. Ferguson , 729 N.W.2d 604, 616 (Minn. App. 2007), review
denied (Minn. June 19, 2007). In general, a prosecutor’s closing argument must be based
on the evidence introduced at trial and the reasonable inferences from the evidence. State

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v. Morton, 701 N.W.2d 225, 237 (Minn. 2005); State v. Crane, 766 N.W.2d 68, 74 (Minn.
App. 2009), review denied (Minn. Aug. 26, 2009). It is inappropriate for a prosecutor to
disparage the defense in closing arguments. State v. Griese, 565 N.W.2d 419, 427 (Minn.
1997); State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993).
This principle extends to a defendant’s expert witness. In State v. Wahlberg , 296
N.W.2d 408 (Minn. 1980), a prosecutor commented in closing argument that a defense
expert was “paid to give a diagnosis favorable” to the defendant. Id. at 419. The supreme
court concluded that the prosecutor ’s remarks were “improper.” Id. at 420. In State v.
Bailey, 677 N.W.2d 380 (Minn. 2004), a prosecutor commented in the opening statement
that a defense expert “continues to walk around the country advocating” for a particular
theory “because he gets paid for it,” and the prosecutor reiterated in closing argument that
“in fact, all he is, is a paid witness by the Defense in criminal cases.” Id. at 404. The
supreme court reasoned that “it was improper for the prosecutor to go beyond the testimony
of the expert witness by making these references to the witness’s character.” Id.
Gardner contends that the prosecutor’s statements in this case were improper. In
response, the state contends that the prosecutor’s statement s were not improper because
they were based on evidence introduced at trial, because the state is permitted to argue that
a witness is not credible, and because closing argument need not be “colorless.” These
contentions do not justify the pejorative use of the word “mercenary.” Also, the state has
not attempted to distinguish the supreme court opinions in Wahlberg and Bailey, which
Gardner cited in her brief , which make clear that a prosecutor may not suggest that the
testimony of a defendant’s expert witness is attributable to a payment of money . In light

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of the applicable caselaw, we conclude that both of the prosecutor’s statements concerning
Gardner’s expert witness were improper and, thu s, that the prosecutor engaged in
misconduct.
We next must consider whether the misconduct requires a new trial . Because
Gardner objected at trial to the statements at issue on appeal, we must consider the
seriousness of the misconduct. State v. McDaniel , 777 N.W.2d 739, 749 (Minn. 2010)
(citing State v. Caron, 218 N.W.2d 197, 200 (Minn. 1974)). If misconduct is deemed “less
serious,” we examine “‘whether the misconduct likely played a substantial part in
influencing the jury to convict.’” Id. (quoting Caron, 218 N.W.2d at 200). If misconduct
is deemed “more serious,” we reverse “unless the misconduct is harmless beyond a
reasonable doubt.” Id. (citing Caron, 218 N.W.2d at 200). For purposes of this opinion,
we assume without deciding that the misconduct is of the “more serious” variety and, thus,
that reversal is required “unless the misconduct is harmless beyond a reasonable doubt.”
See id. Prosecutorial misconduct is harmless beyond a reasonable doubt “only if the verdict
rendered was surely unattributable” to the misconduct. State v. Nissalke, 801 N.W.2d 82,
105-06 (Minn. 2011) (quotation omitted).
Gardner contends that the prosecutor’s misconduct is not harmless because the
“validity, accuracy, and reliability of the blood test was the most contested issue at trial.”
Gardner also contends that the prosecutor’s misconduct undercut her expert’s testimony
concerning retrograde extrapolatio n (i.e., whether Gardner’s alcohol concentration at the
time she drove her vehicle could be accurately determined based on her alcohol
concentration at the time of the blood draw) . In response, the state contends that the

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misconduct is harmless because the evidence strongly supports a finding that Gardner was
impaired while driving because her blood-alcohol concentration exceeded 0. 08 by a
considerable degree and because she did not have an opportunity to consume any alcoholic
drinks between the collision and the blood draw. The state also contends that Gardner’s
expert evidence concerning the blood draw is relevant only to the second count, which
requires evidence of an alcohol concentration of 0.08 or more, and that Gardner’s guilt on
the first count, which simply requires evidence of impairment, was proved by the testimony
of the two state troopers, who observed Gardner’s appearance and behavior between the
collision and the blood draw.
The state’s evidence of Gardner’s guilt was strong. The blood-test result showed
that Gardner was quite impaired, and the state’s rebuttal evidence app arently allayed
concerns about the accuracy and reliability of the blood test. Also, two state troopers
testified that, based on their observations of Gardner, she appeared to be intoxicated.
Gardner’s trial attorney made several arguments to the jury that did not rely on her expert
witness, such as the argument that Gardner might have had bloodshot eyes because she had
been crying and might have failed the field sobriety tests because she had a leg injury. In
addition, the prosecutor’s improper comment s were an isolated in stance in the state’s
closing arguments, which spanned a total of approximately 24 pages of trial transcript.
Furthermore, the district court stated that “none of the arguments that were made, even the
ones that were improper, were so improper as in my opinion to compromise the fairness of
the process.” All of these circumstances cause us to conclude that the jury’s verdict was
“surely unattributable” to the misconduct. See Nissalke, 801 N.W.2d at 106.

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Thus, although the prosecutor engaged in misconduct by disparaging Gardner’s
expert witness during closing arguments, the misconduct is harmless beyond a reasonable
doubt.
Affirmed.