State v. Rasinski

• Decision Date: 24 December 1990
• Docket Number: No. C4-90-1010,C4-90-1010
• Citation: 464 N.W.2d 517
• Parties: STATE of Minnesota, Respondent, v. Gerald Charles RASINSKI, Appellant.
• Court: Minnesota Court of Appeals

Page 517

464 N.W.2d 517

STATE of Minnesota, Respondent, v. Gerald Charles RASINSKI, Appellant.

No. C4-90-1010.

Court of Appeals of Minnesota.

Dec. 24, 1990.

Review Granted Feb. 6, 1991.

Syllabus by the Court

1. The trial court's evidentiary rulings and discovery sanctions were within

its discretion and are supported by the record.

2. The record contains sufficient evidence of negligence upon which to convict appellant of criminal vehicular operation. Minn.Stat. § 609.21, subd. 1(3) (1988).

3. Under the Minnesota Sentencing Guidelines, a trial court's decision to impose consecutive sentences is a departure requiring reasons when the sentence is not "executed according to the guidelines." Minn.Sent. Guidelines II.F.2.

4. Consecutive probationary periods and consecutive probationary jail time may be imposed so long as the probationary jail term does not exceed the maximum amount of time the defendant would be required to serve if the sentence had been executed.

5. A defendant is not entitled to demand execution of a stayed sentence where probation is not more onerous than the executed prison term and where society's interests suffer as a result of vacating probation.

Affirmed as modified.

Arden Fritz, Douglas G. Sauter & Associates, P.A., Coon Rapids, for appellant.

Hubert H. Humphrey, III, Atty. Gen., Robert A. Stanich, Sp. Asst. Atty. Gen., St. Paul, James T. Reuter, Chisago County Atty., Center City, for respondent.

Considered and decided by HUSPENI, P.J., DAVIES and NIERENGARTEN, ^* JJ.

OPINION

HUSPENI, Judge.

Appellant Gerald Charles Rasinski challenges his conviction and sentence for two counts of criminal vehicular operation resulting in death. He assigns a number of errors including evidentiary rulings, sufficiency of the evidence, the sentence of the court, and the court's denial of his demand to execute his stayed sentence. We affirm as modified.

FACTS

Early on the morning of July 4, 1989, appellant's van collided with a vehicle driven by Brett Callan while traveling eastbound on Highway 8 in Chisago County. Mr. Callan and his passenger, Wayne Faris, were killed in the accident. At the time of the collision, appellant's vehicle was traveling eastbound in the westbound lane of traffic.

Earlier on the evening of July 3, 1989, appellant finished work at 8:30 p.m., and purchased a case of beer in an Elk River liquor store. After placing the beer in a cooler in the back of his van, appellant drove to Lake Orono where he testified he drank two beers, which were provided by others already at the lake. He ate nothing while at the lake, left at approximately 10:30 p.m., and headed to Anoka.

On the way to Anoka, appellant stopped to ask his friend, Randy Steen, whether he would like to go to a party. Steen agreed and he, together with two other friends, followed appellant home and joined him in the van. While appellant drove to the party, the passengers drank beer. Appellant admits having a third beer when the van stopped at a friend's home.

After resuming the journey and failing to locate the party in Blaine, appellant asked the passengers whether they wanted to go to Wisconsin to go fishing. The men initially agreed, but Steen changed his mind and asked to return to his car. Appellant stopped at a convenience store and consumed another beer while waiting for his friends to purchase "some munchies." Appellant returned to Elk River, dropped off the passengers and headed back toward Wisconsin at approximately midnight. According to appellant's testimony, he drank four beers between 8:30 p.m. and midnight without eating anything.

Appellant provided the following verbatim account of the accident:

A. I remember seeing lights in front of me.

Q. Where?

A. In my lane in front of me up ahead.

Q. What did you do then?

A. I moved to the right, but there were headlights in front of me in the right, and then there was a car sliding sideways coming in front of me and I slammed on my brakes.

Q. Where were you when you slammed on your brakes?

A. I was in the other lane.

Q. Which lane?

A. The right lane.

Q. The right lane or the left lane?

A. The right lane.

Q. That would be your own lane?

A. I was in the west lane.

Q. Westbound lane?

A. Yeah.

Q. What were you over there for?

A. I was trying to avoid a car coming at me in my lane.

(Emphasis added.)

Officers at the scene testified that appellant had a strong odor of alcohol on his breath and red and watery eyes. At the hospital, following the reading of the implied consent advisory, appellant's blood was drawn. The hospital tested the blood and determined that it had a blood alcohol content of .16; the Bureau of Criminal Apprehension found a blood alcohol content of .13.

Shortly after the accident, Steen gave a statement to the police in which he stated that appellant told him he may have fallen asleep at the wheel. On cross-examination at trial, however, he testified he could not remember exactly what appellant said.

The highway patrol created a video re-enactment of the accident using sketches and measurements made by Trooper Hurd. Trooper Scott McAllen directed the production of the videotape. The short tape has two sections: the first section shows vehicles colliding at 55 m.p.h.; ¹ the second section shows the accident in slow motion.

As a sanction for non-disclosure of her as a witness, the court refused to allow appellant's mother to testify. On rebuttal, the court allowed Trooper McAllen to challenge appellant's statements that he swerved into the westbound lane a split second before the collision.

Before imposing sentence, the court reviewed the presentence investigation report and victim impact statements, heard the statement of Keith Davis, a licensed clinical social worker called by appellant regarding appellant's alcohol problem, and listened to statements made by each member of the two victims' families. The court then imposed two consecutive eighteen month sentences. The court stayed the sentences and placed the defendant on probation for ten years (five years for each count sentenced). The court imposed numerous conditions of probation including 24 months in the county jail, no use of a motor vehicle, a psychological and alcohol evaluation, and writing a letter of apology to the victims' families. The district court denied appellant's motion to execute his sentence.

ISSUES

1. Did the court err in its evidentiary rulings?

2. Was the evidence sufficient to convict appellant of criminal vehicular operation?

3. Did the trial court commit reversible error in sentencing?

4. Is appellant entitled to refuse probation and demand execution of his sentence?

ANALYSIS

I.

Did the trial court err in its evidentiary rulings?

This court will affirm trial court evidentiary rulings absent a clear abuse of discretion, State v. Whiteside, 400 N.W.2d 140, 144 (Minn.App.1987), pet. for rev. denied (Minn. Mar. 18, 1987) and will reverse a discovery sanction only for a clear abuse of such discretion. State v. Lindsey, 284 N.W.2d 368, 373 (Minn.1979).

A. Videotape simulation

Appellant challenges the admission of a videotape simulation of the accident which the Minnesota Highway Patrol produced. ² However, appellant did not object to the admission of the videotape at trial. Although this court may review plain error not objected to at trial, State v. Malaski, 330 N.W.2d 447, 451 (Minn.1983), we conclude that the admission of the videotape was not such an error; the admission did not violate a well-established constitutional right or evidentiary rule. State v. Gullekson, 383 N.W.2d 338, 341 (Minn.App.1986), pet. for rev. denied (Minn. May 16, 1986). First, contrary to appellant's argument, the tape was relevant. It had the "tendency to make the existence of any fact that is of consequence to the determination of the action more probable * * * than it would be without the evidence." Minn.R.Evid. 401. In this case, that consequential fact was how the accident occurred. Even "[a] slight probative tendency is sufficient under Rule 401." Id. committee comment. We also do not agree that the tape lacked foundation or improperly assumed facts not in evidence. The tape was produced using measurements taken at the scene by law enforcement officers trained in accident investigation and reconstruction. Although the record does not disclose the precise speed the vehicles were traveling at impact, testimony does show that the vehicles were not traveling faster than the posted 55 m.p.h. speed limit.

Further, State v. Hopperstad, 367 N.W.2d 546 (Minn.App.1985), relied upon by appellant, is distinguishable from this case. In Hopperstad, this court reversed a conviction in part due to the trial court's admission of a video re-enactment of an altercation at the jail. The video was based on the state's subjective version of the events that occurred. In this case, the highway patrol produced the videotape using objective evidence gathered at the accident scene.

B. Suzanetta Rasinski testimony

Appellant contends that the court's exclusion of Ms. Rasinski's testimony violated his constitutional right to compulsory process under article I, section 6 of the Minnesota Constitution and the sixth amendment to the United States Constitution and violated his right to due process under the fourteenth amendment to the United States Constitution and article I, section 7 of the Minnesota Constitution. We disagree.

The trial court has discretion to impose sanctions for non-compliance with Rule 9.01 of the Minnesota Rules of Civil Procedure. Lindsey, 284 N.W.2d at 373. In exercising that discretion, the court should consider (1) the reason disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying the prejudice by continuance; and (4) any other relevant factors. Id. (citations omitted).

Rejecting the argument that preclusion of testimony is never an appropriate sanction under Rule 9, the United States Supreme Court...