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This opinion is nonprecedential except as provided by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
A23-1236

State of Minnesota,
Respondent,

vs.

Amy Lynn Monson,
Appellant.

Filed July 8, 2024
Affirmed
Kirk, Judge *

Douglas County District Court
File No. 21-CR-22-1770

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

Thomas A. Jacobson, Alexandria City Attorney, Gregory F. Donahue, Assistant City
Attorney, Swenson Lervick Syverson Trosvig Jacobson Cass Donahue, P.A., Alexandria,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Larkin, Judge; and
Kirk, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
NONPRECEDENTIAL OPINION
KIRK, Judge
Appellant challenges her third-degree driving under the influence (DWI) conviction
arguing that she is entitled to a new trial because she was not present at a critical stage in
the proceedings and the district court gave the jury a no- adverse-inference instruction
without her personal consent. We affirm.
FACTS
On March 10, 2022, appellant Amy Lynn Monson hit a retaining wall with her
vehicle after missing a turn . A responding officer arrested Monson for suspicion of DWI
after the results of two field sobriety tests indicated she was impaired. A drug recognition
evaluator (DRE) conducted further tests, the results of which also indicated Monson’s
impairment. During the interview with the DRE, Monson stated she was taking
medications, including alprazolam , which she took at least twice that d ay. The DRE
concluded that Monson was under the influence of a central -nervous-system depressant
and alcohol. Analysis of a blood test taken after the DRE evaluation indicated a positive
result for amphetamine and alprazolam.
Respondent State of Minnes ota charged Monson with three counts of third -degree
DWI: (1) operating a vehicle while her body contained any amount of a schedule I or II
controlled substance pursuant to Minn. Stat. §§ 169.A.20, subd. 1(7), .26 (2020) (count
one); (2) operating a vehicle while under the influence of a controlled substance pursuant
to Minn. Stat. §§ 169.A.20, subd. 1(2), .26 (2020) (count two); and (3) operating a vehicle
while under the influence of a combination of any two or more elements of alcohol, a
controlled substance, or an intoxicating substance that a person knows or should know has
the capacity to cause impairment pursuant to Minn. Stat. §§ 169A.20, subd. 1(4), .26 (2020)
(count three).
The state moved in limine to preclude Monson from testifying that a prescribed
medication caused a false -positive result in her blood test. Monson sought “ to argue the
presence of amphetamine [was] consi stent with [her] prescribed medication.”
A few days later , the district court held a hearing on the prescription- medication
defense. Monson was not present because she was in custody in another county. The
district court noted Monson’s absence and stated it was “not trying to deliberately exclude”
Monson from the hearing but had no way to get her there. During the hearing, Monson’s
counsel conveyed that her testimony would be offered to argue the defense to the jury. The
district court concluded that the notice of the affirmative defense was untimely , and that
Monson could not sustain her burden under the defense through her testimony alone. The
district court concluded that a prescription would be hearsay if offered during Monson’s
testimony and that Monson would need an expert to assert that the amphetamine in her
system was consistent with her prescription for alprazolam, more commonly known as
Xanax. The district court concluded that Monson could not argue a
prescription-medication affirmative defense but could testify about her prescribed
medications.
At trial, t he state presented testimony from the arresting officer and the DRE.
Monson did not testify or present further inf ormation. During trial, the district court
discussed the jury instructions with counsel. The final jury instructions included that the
jury “should not draw any inference from the fact [Monson] has not testified in this case.”
Monson’s counsel confirmed that she wished for this instruction to be included .
The jury found Monson guilty of counts one and two—body contains a schedule I
or II controlled substance and being under the influence of a controlled substance—and not
guilty of count three. The district court convicted and sentenced Monson on count two.
Monson appeals.
DECISION
Monson argues that she is entitled to a new trial on two grounds. First, that the
district court violated her right to be present at all critical stages of the criminal proceeding
when it decided the prescription-drug motion in limine in her absence. Second, that the
district court plainly erred by including a no- adverse-inference jury instruction without
Monson’s personal consent. We address each argument in turn.
Criminal defendants have a due process “right to be present at all critical stages of
trial.” State v. Martin, 773 N.W.2d 613, 619 (Minn. 2006) (quotation omitted) ; see also
State v. Grey, 256 N.W.2d 74, 77 (Minn. 1977) (holding that a criminal defendant’ s right
to be present applied to a pretrial suppression hearing). In Minnesota, this right is codified
in Minn. R. Crim. P. 26.03, subd. 1(1), which provides that “[t]he defendant must be
present at arraignment, plea, and for every stage of the trial.”
Monson argues that her absence from the pretrial motion hearing violated her
constitutional rights such that she is entitled to a new trial. Assuming without deciding that
the district court erred by conducting the pretrial motion hearing in Monson’s absence, we
conclude that she is not entitled to any relief because any error was harmless.
See State v. Ware, 498 N.W.2d 454, 457- 58 (Minn. 1993) (“ [E]ven if a defendant is
wrongly denied the right to be present, the defendant is not entitled to relief if it can be said
that the error was harmless error beyond a reasonable doubt.”).
“To determine whether the denial of a defendant ’s right to be present was harmless,
an appellate court examines the strength of the evidence, the substance of the dis trict
court’s response, and what the defendant would have contributed to his defense if he had
been present.” State v. Booker , 770 N.W.2d 161, 167 (Minn. App. 2009), rev. denied
(Minn. Oct. 20, 2009). The evidence of Monson’s intoxication was strong and included
law-enforcement testimony, body- worn camera footage, and blood -test results. And we
are not persuaded that Monson’s presence at the pretrial motion hearing would have
compelled a different outcome. The district court denied the m otion on two grounds —
timeliness and foundation. Neither issue would have been remedied through Monson’s
presence. Even if Monson had been present and made an offer of proof of her testimony
about her prescription for alprazolam, the district court’s analysis of the evidence needed
to sustain her burden would have been unchanged. Thus , Monson was not prejudiced by
her absence at the pretrial motion hearing.
Monson next argues that the district court plainly erred in giving the jury a
no-adverse-inference instruction without her personal consent. Because Monson’s trial
counsel assented on the record to the no-adverse-inference jury instruction, this is an
invited error. “The invited error doctrine prevents a party from asserting an error on appeal
that [they] invited or could have prevented in the court below.” State v. Goelz, 743 N.W.2d
249, 258 (Minn. 2007). But the invited error doctrine does not apply “if an error meets the
plain error test.” State v. Carridine , 812 N.W.2d 130, 142 (Minn. 2012) (reviewing a
requested jury instruction for plain error). Thus, we may review the invited error here if :
“(1) there is error, (2) the error is plain, and (3) the error affects substantial rights. ” Id.
Regarding the thir d factor : “An erroneous jury instruction is prejudicial if there is a
reasonable likelihood that giving the instruction in question had a significant effect on the
jury verdict.” Id. at 143 (quotation omitted). If Monson establishes these three factors, we
then consider “whether the error should be addressed to ensure fairness and the integrity of
the judicial proceedings.” Goelz, 743 N.W.2d at 258 (quotation omitted).
Monson argues that the district court’s no- adverse-inference instruction was plain
error that affected her substantial rights. We disagree. Although we conclude that the jury
instruction was plainly erroneous , Monson has failed to establish that the instruction
affected her substantial rights.
Within a criminal defendant’s constitutional right not testify against themselves is
their right not to have this silence held against them. U.S. Const. amend. V; Minn. Const.
art. I, § 7; McCollum v. State, 640 N.W.2d 610, 617 (Minn. 2002). A district court “should
not give a no- adverse-inference instruction unless the defense requests it and then, the
better practice is for the [district] court to inquire of the defendant himself whether he
wishes to have such an instruction.” McCollum, 640 N.W.2d at 616; see also State v.
Clifton, 701 N.W.2d 793, 798 (Minn. 2005) (“We have made clear that [the no- adverse-
inference instruction] should not be given without the personal and clear consent of the
defendant.”). Such consent is favored because the no-adverse-inference instruction “calls
the defendant’s silence to the jury’s attention.” McCollum, 640 N.W.2d at 617.
The district court gave a no -adverse-inference instruction to the jury. While the
record contains Monson’s counsel’s assent to the instruction, it does not contain Monson’s
consent on the record as contemplated by McCollum. Id. at 616-17. Nor does the record
reflect conduct that sufficiently demonstrates Monson’s implicit consent. See Clifton, 701
N.W.2d at 798 (noting indicators of defendant’s consent in the record including his
decision not to testify, acknowledgment that no adverse inferences could be drawn,
understanding that “he could request or decline a no- adverse-inference instruction ,” and a
private discussion between defendant and counsel about the instruction). The record lacks
Monson’s waiver of her right to testify, acknowledgment that no adverse inferences could
be drawn, or any indication that she could request or decline a no-adverse-inference
instruction. Nor does the record reflect that Monson reviewed the jury instructions or
discussed them with counsel. Because Monson did not consent to the no-adverse-inference
instruction, it was plain error for the district court to give this jury instruction.
Although the no- adverse-inference instruction was given in error, Monson fail s to
meet her burden to show that her substantial rights were affected by this instruction.
Monson makes no argument about how this jury instruction affected the jury verdict. Even
so, the state’s evidence was strong, and the jury returned a mixed verdict , indicating that
they were not unduly influenced by attention the instruction may have drawn to Monson’s
decision not to testify. We conclude that the no-adverse-inference instruction did not affect
the outcome of Monson’s case and therefore did not affect her substantial rights. See
Carridine, 812 N.W.2d at 142- 43.
Affirmed.