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This opinion is nonprecedential except as provided by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
A23-0327

State of Minnesota,
Respondent,

vs.

Kelly Jenko Triebwasser,
Appellant.

Filed July 29, 2024
Affirmed
Worke, Judge

St. Louis County District Court
File No. 69HI-CR-19-218

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

Kimberly J. Maki, St. Louis County Attorney, Tyler Kenefick, Assistant County Attorney,
Hibbing, Minnesota (for respondent)

Samuel J. Edmunds, Sieben Edmunds Miller PLLC, Eagan, Minnesota (for appellant)

Considered and decided by Schmidt, Presiding Judge; Worke, Judge; and Harris ,
Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant challenges her convictions for driving while impaired (DWI)—test
refusal and threats of violence, arguing that (1) the district court deprived her of the right
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to present her theory of the case, (2) her attorney was ineffective, (3) the district court
should have dismissed the test-refusal charge for lack of probable cause, (4) the evidence
was insufficient to sustain her threats-of-violence conviction, and (5) the district court erred
by denying her request to reopen the omnibus hearing. We affirm.
FACTS
On March 24, 2019, a trooper responded to a dispatch to locate a specific vehicle.
The trooper located the vehicle and “observed [an individual] driving on and over the fog
lines,” “weaving,” and turning “without signaling.” The trooper initiated a traffic stop and
approached the driver, appellant Kelly Jenko Triebwasser.
The trooper observed that Triebwasser’s eyes were watery and glossy, and her
speech was “deliberate .” The trooper told Tr iebwasser that she could smell the odor of
alcohol on her breath and asked Triebwasser if she had been drinking. Triebwasser replied,
“[N]ot much.” Triebwasser performed one field sobriety test, and the trooper observed
indications that Triebwasser was under the influence of alcohol or a controlled substance.
When the trooper administered a preliminary breath test, Triebwasser sucked on the straw
instead of blowing into the straw as the trooper directed.
The trooper placed Triebwasser in handcuffs and in the back of her squad car.
Triebwasser removed the handcuffs, “smash[ed] them into the plexiglass” divider, and
kicked the caged windows. When they arrived at the police station, the trooper read
Triebwasser the breath test advisory. Triebwasser asked to contact an attorney. After “over
an hour” of attorney time, Triebwasser agreed to take a breath test. She then went to the
bathroom and drank water, which restarted the 15-minute observation time.
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The trooper asked Triebwasser several times if she would take a test when the
machine was ready. Triebwasser said yes but then refused many times. Triebwasser was
argumentative and uncooperative. Triebwasser told the trooper that she “was going to kill
[her],” “blow [her] f’ng head off,” and “slaughter” her face “on the outside.” Triebwasser
stated that “it was going to be her life mission to stab [the trooper,] . . . put [the trooper]
out on her acres, cuff [the trooper] and not provide any water.”
Respondent State of Minnesota charged Triebwasser with threats of violence, DWI,
and DWI—test refusal. See Minn. Stat. §§ 609.713, subd. 1, 169A.20, subds. 1, 2 (2018).
Triebwasser moved to dismiss for lack of probable cause. Following an omnibus hearing,
the district court denied Triebwasser’s motion.
Triebwasser retained a new attorney and again moved to dismiss, claiming that the
state had failed to turn over evidence showing that law enforcement was biased because of
past interactions related to domestic-disturbance calls involving her husband. Triebwasser
asserted that on the night she was stopped, she went to check on her husband (they were
living separately). Triebwasser’s father-in -law intervened and called 911 to report that
Triebwasser smelled of alcohol. Triebwasser claimed that there was evidence showing that
law enforcement only presumed that she was intoxicated and evidence showing that she
was not intoxicated. Triebwasser requested that the district court consider nondisclosed
evidence, including a video from the police station.
In January 2021, the district court held a hearing to address Triebwasser’s claim that
nondisclosed evidence would show bias. On March 16, 2021, the district court denied
Triebwasser’s motion to dismiss, concluding that, even if officers laid in wait to arrest her,
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the evidence was not favorable to Triebwasser because Triebwasser was stopped based on
the trooper’s observations of Triebwasser’s driving conduct, and the evidence showed that
officers were performing proper law-enforcement functions.
But the district court determined that it would reopen the omnibus hearing to
consider the video from the police station because it was relevant to whether Triebwasser
refused a breath test. The district court held a hearing in June 2021. Triebwasser played
the video and testified that she agreed to take a breath test. The district court was not
persuaded and denied Triebwasser’s motion to dismiss.
In November 2021, as the parties prepared for trial, Triebwasser requested that she
be allowed to call law enforcement “who had been interacting with her [days before her
arrest] to demonstrate their personal biases and how that reflected on the . . . officers during
her arrest.” Triebwasser argued that because she was charged with threats of violence, her
state of mind was relevant and this evidence was necessary because “[a]t the time she was
pulled over . . . she felt hunted by law enforcement and scared for her safety, which affected
her state of mind.” The district court ruled that the evidence was irrelevant and confusing,
but stated that if Triebwasser testified about alleged harassment, it would decide the
parameters of the evidence at that time.
In December 2021, Triebwasser discharged her attorney. She retained new counsel
in June 2022 . On November 14, 2022, the parties appeared for trial. Triebwasser’s
attorney indicated that Triebwasser wanted to discharge him. The district court asked the
attorney if he was prepared to proceed. He replied that he could try the case from his
“perspective based on what [he thinks] is important.” But noted that he believed that he
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was being set up “for an ethical violation” because, although he was prepared to try the
case, he did not understand Triebwasser’s strategy. Triebwasser’s attorney asked for one
day to meet with Triebwasser to prepare for trial. The district court noted that the case had
been set for trial for months and the attorney had the case for “at least three months,” but
agreed to proceed the next day.
On November 15, 2022, Triebwasser’s jury trial began. The trooper testified about
the circumstances surrounding the stop. Videos from the trooper’s squad car were played
for the jury. The trooper testified that Triebwasser refused to submit to a breath test many
times. A udio from the advisory was played for the jury. The trooper testified about
Triebwasser’s conduct and threats. The trooper testified that when Triebwasser stated that
she was going to “slaughter” the trooper’s face “on the outside,” she believed that “outside”
meant when the trooper was not working. The trooper testified that she felt threatened by
the comment.
On cross-examination, the trooper testified that she had heard references by other
officers that Triebwasser was intoxicated and had been uncooperative in prior interactions.
But the trooper testified that she did not rely on those references to stop Triebwasser; rather,
she stopped her based on her driving conduct.
Triebwasser testified about her activity on the day of the stop. She denied drinking
alcohol that day. She claimed that she was paranoid and in shock.
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On November 18, 2022, the jury found Triebwasser guilty of threats of violence and
test refusal.1 On December 5, 2022, Triebwasser, acting pro se, moved for a new trial. The
district court denied Triebwasser’s motion because it was untimely, pursuant to Minn. R.
Crim. P. 34.02. The district court sentenced Triebwasser to one year and one day in prison,
stayed for three years. This appeal followed.
DECISION
Appellant’s theory of the case
Triebwasser first argues that the district court denied her the right to present her
theory of the case—that she was stopped because law enforcement was predisposed to
believe that she would be intoxicated and uncooperative.
A defendant has a right to a meaningful opportunity to present a complete defense,
but this right generally “yields to the application of . . . evidentiary rule[s].” State v. Pass,
832 N.W.2d 836, 841-42 (Minn. 2013). “A district court’s evidentiary rulings will not be
reversed absent a clear abuse of discretion.” State v. Robertson, 884 N.W.2d 864, 872
(Minn. 2016). Triebwasser bears the burden to show that the district court abused its
discretion and that she was prejudiced. See State v. Bustos, 861 N.W.2d 655, 666 (Minn.
2015).
Triebwasser had sought on several occasions to admit evidence of bias. The district
court considered Triebwasser’s arguments but ruled that the evidence was irrelevant
because the trooper stopped Triebwasser based on her driving conduct. The trooper

1 The state had dismissed the DWI charge.
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testified that she stopped the vehicle after she “observed [Triebwasser] driving on and over
the fog lines,” “weaving,” and turning “without signaling.”
“Ordinarily, if an officer observes a violation of a traffic law, however insignificant,
the officer has an objective basis for stopping the vehicle.” State v. George, 557 N.W.2d
575, 578 (Minn. 1997) ; see State v. Driscoll, 427 N.W.2d 263, 265 (Minn. App. 1988)
(stating erratic driving and failure to observe traffic laws can be indicia of intoxication).
Crossing over the fog line and failing to signal before turning provide an officer with
reasonable suspicion to initiate a stop. Kruse v. Comm’r of Pub. Safety, 906 N.W.2d 554,
560 (Minn. App. 2018) (officer had reasonable suspicion of traffic violation when officer
observed driver driving on the fog line); Otto v. Comm’r of Pub. Safety, 924 N.W.2d 658,
660-61 (Minn. App. 2019) (officer had reasonable suspicion to stop vehicle he observed
drive outside traffic lane and fail to signal 100 feet before turning).
Triebwasser’s driving conduct provided the trooper with reasonable suspicion to
stop her. Any evidence that the trooper was potentially biased before the stop was
irrelevant, especially because the trooper testified that she had heard from other officers
that Triebwasser was intoxicated and had been uncooperative in prior interactions but
stopped her solely because of her driving conduct. Because there was an objective basis
for stopping Triebwasser, any subjective motivation was irrelevant. The district court did
not abuse its discretion in its evidentiary rulings and did not deny Triebwasser an
opportunity to present her theory of the case.
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Assistance of counsel
Triebwasser also argues that she was denied effective assistance of counsel.
Generally, an ineffective-assistance-of-counsel claim should be raised in a petition for
postconviction relief because an evidentiary hearing, if granted, provides the district court
with additional facts to explain counsel’s decisions. State v. Gustafson, 610 N.W.2d 314,
321 (Minn. 2000). But “[w]hen a claim of ineffective assistance of trial counsel can be
determined on the basis of the trial record, the claim must be brought on direct appeal.”
Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013). Because Triebwasser’s claim is raised
on direct appeal, we review the claim under the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984). Id.
To prevail on an ineffective-assistance-of-counsel claim, a defendant must
demonstrate that (1) counsel’s performance fell below an objective standard of
reasonableness, and (2) the defendant was prejudiced by the deficient performance.
State v. Lahue , 585 N.W.2d 785, 789 (Minn. 1998). Triebwasser must overcome the
“strong presumption that counsel’s performance fell within a wide range of reasonable
assistance.” See Gail v. State, 732 N.W.2d 243, 248 (Minn. 2007). If Triebwasser fails to
prove either prong, her claim fails. See State v. Blanche, 696 N.W.2d 351, 376 (Minn.
2005).
Triebwasser claims that trial counsel was (1) not prepared, (2) not familiar with the
evidence and argument, (3) failed to present evidence, (4) failed to subpoena witnesses,
(5) failed to raise a transitory anger defense, (6) failed to object to a “second-degree”
reference, and (7) failed to timely file a motion for a new trial.
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Most of Triebwasser’s claims relate to trial strategy. Appellate courts give
particular deference to counsel’s decisions regarding trial strategy. Carney v. State, 692
N.W.2d 888, 892 (Minn. 2005). Trial preparation, whether to call and which witnesses to
call, what evidence to present, and whether to raise a defense are matters of trial strategy
“within the proper discretion of trial counsel [that] will not be reviewed later for
competence.” State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (counsel’s failure to
file motion, call certain witnesses, and cross-examine certain witnesses represented matters
of trial strategy); see also Sanchez-Diaz v. State, 758 N.W.2d 843, 848 (Minn. 2008)
(counsel’s statements to jury “during closing argument, and his request that . . . jury have
. . . transcripts of [his client]’s statements during its deliberations, were part of counsel’s
[trial] strategy”); Leake v. State, 737 N.W.2d 531, 539 (Minn. 2007) (counsel’s failure to
call alibi witness was within counsel’s discretion as trial strategy to decide which witnesses
to call and what evidence to present); Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004)
(counsel’s decision to focus on other defenses instead of investigating alternative suspects
and failure to present certain evidence were matters of trial strategy).
Additionally, Triebwasser’s attorney explained why he might not be prepared to
proceed with her strategy. Triebwasser retained and discharged several attorneys
throughout the proceedings. On the day of trial, her attorney stated that Triebwasser
wanted to discharge him. The standard of review is an “objective standard” defined as
“representation by an attorney exercising the customary skills and diligence that a
reasonably competent attorney would perform under similar circumstances.” State v.
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Gassler, 505 N.W.2d 62, 70 (Minn. 1993) (quotation omitted). C ounsel’s performance
was objectively reasonable under the circumstances.
As far as Triebwasser’s claim that her attorney was ineffective for failing to file a
new trial motion, we do not have the information to review a claim that a postconviction
record might reveal. Based on this record, it is unknown if counsel was ineffective for
failing to file a timely motion. Triebwasser fails to meet her burden to show that she
received ineffective assistance of counsel.
Sufficiency of the evidence
Triebwasser argues that the district court erred when it denied her motion to dismiss
the test-refusal charge for lack of probable cause. A probable-cause challenge is irrelevant
on appeal from a final judgment of conviction because the standard of review for
sufficiency of the evidence to support the conviction is much higher than probable cause .
State v. Holmberg, 527 N.W.2d 100, 103 (Minn. App. 1995), rev. denied (Minn. Mar. 21,
1995).
When considering a challenge to the sufficiency of the evidence, appellate courts
“review . . . the record to determine whether the evidence and reasonable inferences drawn
therefrom, viewed in a light most favorable to the verdict, were sufficient to allow the jury
to reach its verdict.” State v. Hohenwald, 815 N.W.2d 823, 832 (Minn. 2012) (quotation
omitted). Appellate courts must “assume that the jury believed the state’s witnesses and
disbelieved contrary evidence.” State v. Brocks, 587 N.W.2d 37, 4 2 (Minn. 1998). We
will not disturb a guilty verdict when “the jury, acting with due regard for the presumption
of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt,
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could reasonably conclude that [the] defendant was proven guilty of the offense charged.”
State v. Flowers, 788 N.W.2d 120, 133 (Minn. 2010) (quotation omitted).
It is a crime for a person to refuse to submit to a breath test. Minn. Stat. § 169A.20,
subd. 2(1). The evidence shows that when the trooper asked Triebwasser to submit to the
breath test, Triebwasser stated that she “would not blow into anything.” The trooper asked
Triebwasser again if she would blow into the machine. Triebwasser responded, “No.” This
evidence supports the jury verdict that Triebwasser refused to submit to the breath test.
Triebwasser also argues that the evidence does not support her threats-of-violence
conviction. “Whoever threatens, directly or indirectly, to commit any crime of violence
with purpose to terrorize another . . . or in a reckless disregard of the risk of causing such
terror” has committed the offense of threats of violence. Minn. Stat. § 609.713, subd. 1.
The evidence shows that Triebwasser told the trooper that she “was going to kill
[her],” and “blow [her] f’ng head off when she is out of here.” The trooper testified that
Triebwasser stated that “it was going to be her life mission to stab [the trooper,] . . . put
[the trooper] out on her acres, cuff [the trooper] and not provide any water.” Triebwasser
told the trooper that she was going to “slaughter” her face “on the outside.” The trooper
understood the “outside” to mean when the trooper was not working.
Triebwasser argues that she did not intend to terrorize. A victim’s reaction to a
threat can be relevant circumstantial evidence to the element of intent. State v. Schweppe,
237 N.W.2d 609, 614 (Minn. 1975). The trooper testified that she felt threatened and
concerned because Triebwasser threatened her multiple times and indicated that she would
commit the acts against the trooper when the trooper was not working. The jury believed
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that the trooper was threatened. We defer to the jury’s credibility finding. The evidence
sufficiently supports the verdict.
Omnibus hearing
Finally, Triebwasser argues that the district court erred when it denied her request
to reopen the omnibus hearing because she was not provided “a full and fair opportunity to
challenge the validity of the stop or probable cause to arrest.”
Whether to reopen an omnibus hearing is reviewed for an abuse of discretion. See
State v. Papadakis, 643 N.W.2d 349, 356-57 (Minn. App. 2002). Here, the district court
granted Triebwasser’s request to reopen the omnibus hearing as it related to the refusal
charge because of discovery that was disclosed late. However, the district court did not
reopen the omnibus hearing to hear additional evidence of a “pretextual” stop because there
was evidence of a legitimate reason for the stop. Because the evidence was irrelevant, the
district court declined to consider it. The district court did not abuse its discretion.
Affirmed.