State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1186

State of Minnesota,
Respondent,

vs.

Frank Garrett Quentin Walter,
Appellant.

Filed October 10, 2022
Affirmed in part, reversed in part, and remanded
Bratvold, Judge

Clay County District Court
File No. 14-CR-19-2801

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

Brian J. Melton, Clay County Attorney, Cecilia A. Knapp, Assistant County Attorney,
Moorhead, Minnesota (for respondent)

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

Considered and decided by Bratvold, Presiding Judge; Cochran, Judge; and
Wheelock, Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this appeal, appellant challenges the district court’s judgments of conviction for
first-degree physical control of a motor vehicle while impaired (DWI) under Minn. Stat.
§ 169A.20, subd. 1 (2018) (count 1), and first-degree refusal to submit to a chemical test
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under Minn. Stat. § 169A.20, subd. 2 (2018) (count 2). Appellant argues both convictions
must be reversed because the record evidence does not sufficiently prove beyond a
reasonable doubt that the appellant was guilty. After a careful review of the record
evidence, we affirm the guilty verdicts on both counts . But we remand with instructions
for the district court to vacate one of the two convictions because both convictions are for
offenses under different sections of the same criminal statute for acts committed during a
single behavioral incident.
FACTS
Respondent State of Minnesota charged appellant Frank Garrett Quentin Walter
with DWI and test refusal, as described above, and a jury trial was held in May 2021. The
following summarizes the evidence received during the jury trial. On July 13, 2019, at
around 2:00 a.m., a Clay County deputy was patrolling Interstate 94 near Moorhead. He
spotted a car parked on the shoulder with the driver’s door open and a leg hanging out. The
deputy pulled over, approached, and saw a male—later identified as Walter—sleeping in
the driver’s seat and a female sleeping in the back seat. There were no keys in the ignition.
The deputy woke Walter and noticed an odor of alcohol coming from the car and that
Walter was not wearing any shoes, was slurring his speech, and had bloodshot, watery
eyes. The deputy tried to conduct field sobriety tests, but Walter failed to follow
instructions or perform the tests. Walter was arrested and placed in the back seat of the
squad car.
The deputy and a second officer woke the female in the back seat, who was later
identified as Walter’s sister. The deputy saw car keys in the middle of the back seat behind
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the center console, and, when the deputy asked, Walter’s sister gave him the keys. The
deputy testified at trial that someone sitting in the driver’s seat could access the keys in the
back seat. After an officer transported Walter to the jail and read him the breath-test
advisory, Walter refused to submit to a breath test.
At trial, Walter called his sister as a witness. Walter’s sister testified that Walter
drove earlier in the evening, but she was driving just before they parked. Because the car
was overheating, she pulled onto the freeway shoulder, took the keys out of the ignition,
put the keys in her pocket, and fell asleep in the back seat. The next thing she recalled was
being awakened by an officer.
The jury found Walter guilty on both counts. The district court determined that
count 2 was a lesser -included offense of count 1 and orally pronounced a conviction on
count 1 but not on count 2. The district court sentenced Walter to 60 months in prison on
count 1 and stayed execution of the sentence for five years. The warrant of commitment
shows a conviction on both counts.
Walter appeals.
DECISION
Walter makes three arguments in support of his position that his convictions must
be reversed. First, he contends that the record evidence of his physical control of the car is
circumstantial, and this court should apply a heightened, two-step circumstantial-evidence
test. Second, Walter contends that the evidence failed to prove beyond a reasonable doubt
that Walter was in physical control of the car, and therefore, the record does not support
his conviction for count 1. Third, Walter argues the evidence failed to prove beyond a
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reasonable doubt that t he deputy had probable cause to believe Walter was in physical
control of the car, and therefore, the record does not support his conviction for count 2. We
consider each argument in turn.
I. The record includes direct evidence o f the challenged element of physical
control.
The sufficiency of the evidence for a conviction is reviewed differently based on
whether direct or circumstantial evidence supports a challenged element. Loving v. State,
891 N.W.2d 638, 643 (Minn. 2017). Circumstantial evidence is “evidence from which the
factfinder can infer whether the facts in dispute existed or did not exist,” and it “always
requires an inferential step to prove a fact.” State v. Harris, 895 N.W.2d 592, 599 (Minn.
2017). In contrast, direct evidence is “[e]vidence that is based on personal knowledge or
observation and that, if true, proves a fact without inference or presumptions.” Id.
Walter urges this court to apply the two-step circumstantial-evidence test to the
record evidence of physical control in his case.
1 His argument is unpersuasive. This record
includes direct evidence of Walter’s physical control of the car, such as testimony from the

1 When an appellate court reviews the sufficiency of circumstantial evidence, the first step
“is to identify the circumstances proved.” State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn.
2010). The second step is to “examine independently the reasonableness of all inferences
that might be drawn from the circumstances proved; this includes inferences consistent
with a hypothesis other than guilt.” State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010)
(quotation omitted). Under this second step, the court must “determine whether the
circumstances proved are consistent with guilt and inconsistent with any rational
hypothesis except that of guilt, not simply whether the inferences that point to guilt are
reasonable.” State v. Silvernail, 831 N.W.2d 594, 599 (Minn. 2013) (quotations omitted).

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deputy, the second officer, and Walter’s sister2 about their personal observations. The
record also includes a squad-car video recording. 3 Witness testimony is direct evidence
“when it reflects a witness’s personal observations and allows the jury to find the defendant
guilty without having to draw any inferences. ” State v. Horst, 880 N.W.2d 24, 40 (Minn.
2016). Similarly, a photograph or video recording is direct evidence of what it shows. See
State v. McCormick, 835 N.W.2d 498, 507 (Minn. App. 2013) (stating that a reenactment
video is direct evidence of a defendant’s actions), rev. denied (Minn. Oct. 15, 2013); but
see State v. Li, 948 N.W.2d 151, 155 (Minn. App. 2020) (stating that video evidence is not
direct evidence of a fact that did not appear in the video).
We therefore apply the direct-evidence test and not the two-step
circumstantial-evidence test in reviewing the sufficiency of the evidence for counts 1 and
2.
II. The record includes sufficient evidence that Walter was in physical control of
the car.
Walter challenges the sufficiency of the evidence for the element of physical control
and argues that we must reverse his conviction for count 1. When a disputed element is

2 When reviewing t he sufficiency of evidence, the appellate court’s duty is “performed
when it has considered all of the evidence in the light most favorable to the trial court’s
findings and has determined whether the findings are reasonably sustained by the evidence
as a whole.” Dempsey v. Meighen, 90 N.W.2d 178, 184 (Minn. 1958). Because we review
the record as a whole, we also consider Walter’s sister’s testimony even though she was a
defense witness.

3 While the squad video recording failed to capture the deputy’s initial interaction and
conversations with Walter, the recording corroborates the deputy’s testimony about Walter
sleeping in the driver’s seat and Walter’s sister sleeping in the back seat.
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supported by direct evidence, the appellate court’s review is limited “to a painstaking
analysis of the record to determine whether the evidence, when viewed in the light most
favorable to the conviction, [is] sufficient to permit the jurors to reach the verdict which
they did.” Horst , 880 N.W.2d at 40 (quotation omitted). The jury is assumed to
“disbelieve[] any evidence contrary to the verdict.” State v. Fleck, 777 N.W.2d 233, 236
(Minn. 2010). “The question on review is whether the facts in the record and the legitimate
inferences drawn from them would permit the jury to reasonably conclude that the
defendant was guilty beyond a reasonable doubt of the offense of which he was convicted,
giving due regard to the presumption of innocence.” Id.
The state charged Walter with count 1, alleging Walter was in physical control of
the car while under the influence of alcohol. Physical control is “more comprehensive than
either ‘drive’ or ‘operate.’” State v. Starfield, 481 N.W.2d 834, 836 (Minn. 1992) (quoting
State v. Harris, 202 N.W.2d 878, 881 (Minn. 1972)). “The phrase ‘physical control’ means
being in a position to exercise dominion or control over the vehicle.” State v. Duemke,
352 N.W.2d 427, 432 (Minn. App. 1984). “The offense, however, is not intended to cover
situations in which an intoxicated person is a passenger, having relinquished control of the
vehicle to a designated driver”; “mere presence” in the car is “insufficient to show physical
control.” Fleck, 777 N.W.2d at 236. An appellate court may consider “a number of factors
in determining whether a person is in physical control of a vehicle, including: the person’s
location in proximity to the vehicle; the location of the keys; whether the person was a
passenger in the vehicle; who owned the vehicle; and the vehicle’s operability.” Id.
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Walter argues the record evidence is insufficient to prove physical control because
it shows that he was merely sleeping in the driver’s seat, the keys were not in the ignition
but next to Walter’s sister, and “there was no evidence that the car was operable.” We
consider each of these three points in turn.
First, Walter is correct that sleeping in the driver’s seat is not, by itself, sufficient
evidence of physical control. In State, City of Falcon Heights v. Pazderski, law
enforcement found the appellant “asleep in his car on the property in which he lived.”
352 N.W.2d 85, 88 (Minn. App. 1984). We reversed appellant’s DWI conviction and held
that the record evidence of physical control was insufficient; we emphasized that appellant
was sleeping in the front seat of the car in his own driveway, “[t]he key was not in the
ignition, the engine was not running and there were no devices of the car operating.” Id. at
88-89. We also noted that appellant “had arrived home, had slept for about three hours, and
had no intention of restarting the vehicle and/or driving any place else.” Id. at 88.
Pazderski, however, does not support reversal of count 1. Although the deputy
found Walter sleeping in the driver’s seat, that was not the only record evidence of physical
control. Walter’s car was parked on the shoulder of a busy interstate, not in his own
driveway. Walter’s sister also testified that Walter recently drove the car. As we discussed
in Pazderski, “[o]ne who has been drinking intoxicating liquor should not be encouraged
to test his driving ability on the highway, even for a short distance, where his life and the
lives of others hang in the balance.” Id. (quoting State, Dept. of Pub. Safety v. Juncewski,
308 N.W.2d 316, 320 (Minn. 1981)). Thus, Pazderski does not apply to the facts in
Walter’s case.
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Second, Walter stresses the location of the car keys, pointing out that the keys were
found next to Walter’s sister, the keys were not in the ignition, and the keys were not with
Walter when the deputy found him. The state responds that the testimony proves someone
sitting in the driver’s seat could access the keys in the backseat.
This court has generally upheld DWI convictions or license revocations based on a
driver’s physical control when the driver had access to the vehicle keys. See, e.g., LaBeau
v. Comm’r of Pub. Safety, 412 N.W.2d 777, 780 (Minn. App. 1987) (“[K]eys were within
easy reach in the glove compartment.”); Vivier v. Comm’r of Pub. Safety, 406 N.W.2d 587,
589 (Minn. App. 1987) (“The keys were found in [driver’s] pocket prior to the arrest.”);
Palme v. Comm’r of Pub. Safety, 366 N.W.2d 343, 344 (Minn. App. 1985) (noting the
defendant was unaware of the keys, which were on the seat next to him), rev. denied (Minn.
June 24, 1985) . Here, the deputy’s testimony is sufficient to prove that Walter was in
physical control of the car because he could access the keys.
Third, Walter contends “a dark stream” on the interstate shoulder near the car
suggests that mechanical issues prevented its operation. This argument is unavailing. The
supreme court has held that “operability of the motor vehicle is not an element of the crime
of being in ‘physical control’ of a motor vehicle while under the influence of alcohol. ”
Starfield, 481 N.W.2d at 839. For example, t he supreme court upheld a DWI conviction
when the defendant was found sleeping “behind the steering wheel” even though the car
was stuck in the ditch. Duemke, 352 N.W.2d at 430. And this court has upheld DWI
convictions when the vehicles appeared to be inoperable. See, e.g., Abeln v. Comm’r of
Pub. Safety, 413 N.W.2d 546, 547-48 (Minn. App. 1987) (car battery was depleted); State
9
v. Woodward, 408 N.W.2d 927, 928 (Minn. App. 1987) (car had a flat tire) . The supreme
court has explained that even if the car is “incapable of immediate self-propelled mobility,”
it may still be a potential traffic hazard, which is “the potential harm that “the ‘physical
control’ offense is meant to encompass.” Starfield, 481 N.W.2d at 838. We conclude that
the operability of Walter’s car does not undermine the sufficiency of the record evidence
of physical control.
Because record evidence established that Walter was sleeping in the driver’s seat of
a car parked on the interstate shoulder and that he had access to the keys, we conclude the
evidence sustains Walter’s conviction for count 1.
III. The record includes sufficient evidence that the deputy had probable cause to
believe that Walter was in physical control of the car, and therefore, Walter
was lawfully arrested and required to submit to a chemical test.
To sustain the conviction for test refusal in count 2, the record must include
sufficient evidence that the deputy had probable cause to believe Walter was in physical
control of a motor vehicle, and that a chemical test was required because Walter was
lawfully arrested for DWI. Minn. Stat. §§ 169A.20, subd. 2(1), 169A.51, subd. 1(b)(1)
(2018). Probable cause means that “the objective facts are such that under the
circumstances a person of ordinary care and prudence [would] entertain an honest and
strong suspicion that a crime has been committed.” State, Lake Minnetonka Conservation
Dist. v. Horner, 617 N.W.2d 789, 795 (Minn. 2000). The reasonableness of the deputy’s
probable-cause determination is “an objective inquiry,” State v. Hardy, 577 N.W.2d 212,
216 (Minn. 1998), and we consider the totality of the facts and circumstances known, State
v. Koppi, 798 N.W.2d 358, 363 (Minn. 2011).
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Walter again challenges the sufficiency of the evidence of physical control. He
argues that “[f]or much of the same reasons that the state failed to prove beyond a
reasonable doubt that [Walter] was in physical control of the car, the state failed to prove
beyond a reasonable doubt that [the deputy] had probable cause to believe that [Walter]
was in physical control of the car.” Walter points out that the engine was not running, the
keys were not in the ignition, and the keys were not with Walter when he was ordered out
of the vehicle.
We are not persuaded. In Flamang v. Commissioner of Public Safety, we affirmed
a test-refusal conviction even though the keys were not located, when the driver was found
sitting “behind the steering wheel,” “the engine felt warm,” and there was an “odor of
alcohol on [the driver’s] breath.” 516 N.W.2d 577, 579, 581 (Minn. App. 1994), rev. denied
(Minn. July 27, 1994).
Similarly, the deputy found Walter sleeping behind the steering wheel in a car
parked on the interstate shoulder. The deputy also found the keys in the back seat and
testified that they were accessible to someone sitting in the driver’s seat. Because record
evidence established that the deputy found Walter in the driver’s seat of a car parked on
the interstate shoulder and observed that he had access to the keys, we conclude the
evidence sustains Walter’s conviction for count 2.
IV. The convictions on counts 1 and 2 are for offenses under different sections of a
criminal statute for acts committed during a single behavioral incident.
At sentencing, the district court pronounced a judgment of conviction and imposed
sentence on count 1. The district court stated that count 2 was a lesser-included offense that
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arose from the same behavioral incident as count 1, and therefore, no conviction would be
entered on count 2. The warrant of commitment, however, shows a conviction on both
counts.
While neither party discussed this issue, “an appellate court has a ‘responsibility to
review the record even though the assignments of error are inadequate.’” State v. Williams,
525 N.W.2d 538, 544 (Minn. 19 94) (quoting State v. Post, 512 N.W.2d 99, 103 (Minn.
1994)). Whether the defendant can be lawfully convicted of a crime is a legal question that
appellate courts review de novo. State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012).
“Upon prosecution for a crime, the actor may be convicted of either the crime
charged or an included offense, but not both. ” Minn. Stat. § 609.04, subd. 1 (2020). The
supreme court has held that “section 609.04 bars multiple convictions under different
sections of a criminal statute for acts committed during a single behavioral incident.” State
v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985).
Where, as here, an appellant does not assert a lesser-included-offense argument, this
court applies a two-part test to determine whether any of the multiple convictions should
be vacated. State v. Bonkowske, 957 N.W.2d 437, 443-44 (Minn. App. 2021). First, the
convictions at issue must be for offenses that arise under different sections of the same
criminal statute. Jackson, 363 N.W.2d at 760. Second, the offenses must have been for acts
committed during a single behavioral incident. Id.
Walter’s convictions for count 1 and count 2 were for offenses arising under
different sections of the same criminal statute—Minn. Stat. § 169A.20. Also, this court has
held that DWI and test refusal “committed as part of a continuous course of conduct, as
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occurred here, arise out of a single behavioral incident.” Bonkowske, 957 N.W.2d at 444.
Thus, we conclude that the district court erred by entering convictions on counts 1 and 2
on the warrant of commitment.
The supreme court has established the “proper procedure to be followed by the trial
court” and the rationale for doing so:
[W]hen the defendant is convicted on more than one charge for
the same act [the district court is] to adjudicate formally and
impose sentence on one count only. The remaining
conviction(s) should not be formally adjudicated at this time.
If the adjudicated conviction is later vacated for a reason not
relevant to the remaining unadjudicated conviction(s), one of
the remaining unadjudicated convictions can then be formally
adjudicated and sentence imposed, with credit, of course, given
for time already served on the vacated sentence.
State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984). Because Walter was convicted on
counts 1 and 2 for offenses arising out of the same behavioral incident, “one of the two
formal adjudications of conviction . . . must be vacated.” Jackson, 363 N.W.2d at 760.
Even so, “a finding of guilt with respect to those lesser included offenses,” the guilty
verdict, “remains intact.” State v. Pflepsen, 590 N.W.2d 759, 766 (Minn. 1999).
Thus, we affirm in part the sufficiency of the evidence for counts 1 and 2, and we
reverse in part and remand for the district court to vacate one of Walter’s convictions while
leaving the guilty verdicts intact.
Affirmed in part, reversed in part, and remanded.