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This opinion will be unpublished and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
A20-0221

State of Minnesota,
Respondent,

vs.

Timothy J. Otis,
Appellant.

Filed December 28, 2020
Affirmed
Worke, Judge

Meeker County District Court
File No. 47-CR-18-1240

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

Brandi L. Schiefelbein, Meeker County Atto rney, John P. Fitzge rald, Assistant County
Attorney, Litchfield, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Lydia Maria Villalva Lijó,
Rachel F. Bond, Assistant Public Defenders, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Wo rke, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that the district court erred in its chemical-test-refusal jury
instruction. Appellant also makes several pro se arguments. We affirm.

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FACTS
Appellant Timothy J. Otis went to trial on three charges: fleeing a peace officer in
a motor vehicle, refusing to submit to a chemical test, and possessing marijuana in a motor
vehicle.
A deputy testified that on De cember 25, 2018, he respo nded to a driver complaint
of a red pickup truck traveling at high speeds. The deputy saw the vehicle traveling about
90 miles per hour and activated his emergency lights. The truck did not stop. After a
chase, the truck got stuck in a ravine. The deputy broke the window on the driver’s side
door after the driver refused to get out of his car. The driver eventually exited the
passenger’s side of the vehicle, and the de puty apprehended him. The deputy identified
Otis as the driver through documents found in Otis’s wallet. The deputy testified that Otis’s
“behavior was incredibly erratic. His skin was flushed. He’s disoriented in terms of
knowing who I was.” The deput y did not conduct field sobriety tests out of medical
concerns with Otis and because Otis was a flight risk.
Otis lost consciousness in the back of the squad ca r, and the deputy revived him
with a sternum rub. Officers searched the truck an d found a jar containing 12 grams of
marijuana. When paramedics arrived, they determined that Otis should be brought to the
hospital. The deputy brought Otis to the hospital.
The deputy then obtain ed a search warrant for “A Bl ood or Urine sample.” The
deputy served Otis w ith the search warrant and explai ned that Otis could refuse, but
refusing would constitute a separate crime. He explained this at least ten times. Otis first
admitted to being on Percocet and stated that he consented to a breathalyzer or urine test.

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When the deputy returned with a urine sample cup, Otis refused to take the test. The deputy
tried to obtain a sample of blood or urine for 15 minutes before he labeled it as a test refusal.
The state charged Otis with three counts, including one count for refusing to submit
to a chemical test. The case proceeded to a jury trial. Du ring trial, the district court
conferred with the parties to finalize the jury instructions. When discussing the instruction
for refusal to submit to a chemical test, Otis’s attorney stated, “We are gonna want, ah, the
language of ‘and’ instead of ‘or’ between blood or urine. I think the refusal is gonna have
to be both or in other words ‘and or.’” The state agreed with the change and stated, “I think
that if it was just left at ‘and’ it would be confusing that he would have to provide two, so
the ‘and or’ I think woul d be sufficient.” Otis’s attorn ey responded, “Yeah, I agree with
that. So, it would read ‘a person’s blood an d or urine’?” Otis’s co-counsel added, “As
long as it’s clear in the definition section . . . that he’d have to refuse both in order to violate.
As long as that part’s clear to the jury.” The district court concluded the discussion by
reading the full element and asking if it was accep table. Otis’s attorney responded, “Yes
– yes. Blood and or urine.” Otis’s attorney then confirmed that the “and or” language is
used in the definition of the crime along with the third and fourth elements.
The jury instructions defined “refusal to submit to a chemical test” as “whoever
refuses to submit to a chemical test of the person’s blood an d or urine as required by a
search warrant under the implied consent law is guilty of a crime.” The “and or” language
was used again in the elements of the crime: “Third, the defendant was informed that
refusal to submit to blood and or urine test is a crime. Fourth, the defendant was requested

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by a peace officer to submit to a chemical test of the defendant’s bl ood and or urine as
required by a search warrant.”
The jury found Otis guilty as charged. The district court sentenced Otis to 12
months and one day for fleeing a peace officer an d 365 days in jail for test refusal. Otis
received credit for time served, and the remainde r of his sentences we re stayed for three
years. This appeal followed.
D E C I S I O N
Jury instruction
Otis argues that the district court erred by using the “and or” language in the jury
instruction for the charge of refusal to submit to a chemical test when the statute requires
a defendant to refuse both tests. We must first determine the appropriate standard of
review.
“Under the invited error doctrine, a party ca nnot assert on appeal an error that he
invited or that could have been pr evented at the district court.” State v. Carridine , 812
N.W.2d 130, 142 (Minn. 2012). Otis requested the dist rict court to change the jury
instruction from “or” to “and or.” While the invited error doctrine appears invoked, it was
not argued by the state. But a defendant also generally forfeits the right to challenge jury
instructions on appeal by faili ng to object at trial. State v. Davis , 864 N.W.2d 171, 176
(Minn. 2015). We may analyze unobjected-to jury instructions under the plain-error
standard. Minn. R. Crim. P. 31.02; State v. Taylor, 869 N.W.2d 1, 15 (Minn. 2015).
Otis believes that the plain-error analysis does not apply because he brought to the
district court’s attention “the necessity of an instruction that aligned with the statute.” Otis

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is referring to his co-counsel’s statement that, “As long as it’s clear in the definition
section . . . that he’d have to refuse both in order to violate. As long as that part’s clear to
the jury.” But Otis never objected to th e “and or” language—in fact, his counsel first
suggested and then approved the language. We therefore apply the plain-error analysis
because Otis did not object to the jury instruction at trial.
In a plain-error analysis, appellate courts review the jury inst ruction to determine
whether (1) there was error, (2) the error was plain, and (3) the error affected the appellant’s
substantial rights. State v. Kelley, 855 N.W.2d 269, 273-74 (Minn. 2014). If an appellant
meets these requirements, appellate courts “m ay correct the error only if it seriously
affect[s] the fairness, integr ity, or public reputation of judicial proceedings.” Id. at 274
(quotations omitted). An appellant fails to demonstrate plain error when any of the
requirements are not met. See State v. Webster, 894 N.W.2d 782, 786 (Minn. 2017).
Here, we analyze whether Otis’s substantial rights were violated. “With respect to
the substantial-rights requirement, [the appe llant] bears the burden of establishing that
there is a reasonable likelihood that the absence of the [alle ged] error would have had a
significant effect on the jury’s verdict.” State v. Horst, 880 N.W.2d 24, 38 (Minn. 2016)
(quotation omitted). Appellate courts look at all relevant factors, including: “(1) whether
[the appellant] contested the omitted elements at trial and submitted evidence to support a
contrary finding; (2) whether the [s]tate pr esented overwhelming evidence to prove those
elements; and (3) whether the jury’s verdic t nonetheless encompassed a finding on those
elements notwithstanding their omission from the jury instructions.” State v. Peltier, 874
N.W.2d 792, 800 (Minn. 2016).

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Otis has not met his burden. The deputy obtained a search warrant for Otis’s blood
or urine. The deputy explai ned that Otis could refuse but it would constitute a separate
crime. After Otis changed his mind about the ur ine test, the deputy testified that he tried
for 15 minutes to get either a blood or urine sample from Otis . Otis did not provide any
evidence contrary to the deputy’s testimony. The record shows that Otis refused both tests.
Otis’s substantial rights were not violated; thus, he fails to show plain error.
Pro se arguments
Otis raises three pro se arguments. He fi rst argues that the district court erred by
not admitting into evidence his two clean urinalys is (UA) results that he took at the jail
later on the night of the incident. The jury convicted Otis for fleeing a peace officer,
refusing to submit to a chemical test, and posse ssing marijuana. None of these offenses
relate to a UA taken hours after the offense and after Otis refused to comply with the search
warrant.
Otis also argues, “I offered a urine sample at the hospital/I stated I was afraid of
needles. The policeman . . . said no to me giving a [UA] at [the] hospital. So at county jail
20 min[utes] later I offered a [UA] they took a UA.” This court does not consider matters
not argued to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988). We do not consider Otis’s argument because he did not make it to the district
court.
Otis next argues that he tried to mail letters to his attorney and the district court, but
Meeker County failed to send them until after the trial. This argument is unrelated to Otis’s
convictions and not within the scope of our review.

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Finally, Otis argues that a detective e ngaged in illegal questioning for several
reasons, but foremost because she made him believe that she work ed for parole and
probation. Otis does not allege a violation or present any legal argument. This court does
not consider pro se claims that are unsuppor ted by legal argument or citations to legal
authority. See State v. Bartylla, 755 N.W.2d 8, 22 (Minn. 2008). His pro se arguments are
without merit.
Affirmed.