This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1389
State of Minnesota,
Respondent,
vs.
Tabashish Anamiki Ogitchida,
Appellant
Filed August 3, 2015
Affirmed
Worke, Judge
Becker County District Court
File No. 03-CR-13-427
Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General, St.
Paul, Minnesota; and
Gretchen D. Thilmony, Becker County Attorney, Detroit Lakes, Minnesota (for
respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Worke, Presiding Judge; Cleary, Chief Judge; and
Smith, Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant challenges his test-refusal conviction, arguing that (1) evidence must be
suppressed because he was unlawfully seized, (2) the evidence was insufficient to sustain
his conviction, (3) he did not validly stipulate to a felony-enhancement element, and (4)
the test-refusal statute is unconstitutional. We affirm.
FACTS
On March 1, 2013, Becker County Sheriff’s Deputies Matt Gerving and Tyrone
Warren were on patrol when they noticed appellant Tabashish Anamiki Ogitchida
walking away from a car that was stopped against a snowbank on the side of the road. It
appeared from the tire tracks that the car had been traveling in the eastbound lane, then
crossed over the westbound lane and had come to a stop against a snowbank on the north
side, facing the closest oncoming traffic. The deputies observed Ogitchida walking east,
about 25 yards from the car, down the center of the road.
Deputy Gerving made contact with Ogitchida and asked if he had been driving.
Ogitchida replied that he had not driven the car, and said that he had been dropped off by
a woman who had been driving. He said that they had been run off the road by a white
pickup, and that the woman had left with the individuals in the pickup. Deputy Gerving
asked Ogitchida for identification, which he did not have, so Deputy Gerving took down
Ogitchida’s name and date of birth. Deputy Warren then recognized Ogitchida and
recalled that his given name was Benjamin Bellanger. After Ogitchida repeated his
contention that a female was driving the car and added that he had been passed out in the
passenger seat, Deputy Warren asked to see the bottoms of Ogitchida’s shoes, a request
to which Ogitchida consented. Deputy Warren examined the ground around the vehicle
and noted only one set of footprints, which matched Ogitchida’s shoes. While Deputy
Warren was checking the footprints, Ogitchida handed a set of keys to Deputy Gerving,
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stating that they were the keys to the car and that he was handing them over because the
car did not belong to him. Deputy Gerving checked Ogitchida’s driving status, which
indicated that his license had been cancelled as inimical to public safety. Ogitchida was
placed under arrest for driving with a cancelled license.
While Deputy Gerving was placing Ogitchida in handcuffs, he noticed the odor of
an alcohol beverage. Deputy Gerving turned Ogitchida to face him and tried to look him
in the eyes, but Ogitchida continually looked away. Deputy Gerving advised Ogitchida
that he was going to perform field sobriety tests, but Ogitchida said “I’m not going to do
any tests. Just take me to jail.” Deputy Gerving attempted to perform a horizontal gaze
nystagmus test, and in doing so noted bloodshot and watery eyes. After unsuccessfully
attempting field sobriety tests, the deputies transported Ogitchida to jail.
Ogitchida was read the implied consent advisory. Deputy Gerving then asked
Ogitchida to take a breath test. Ogitchida initially said that he was too drunk, but then
said he would take the test. However, Ogitchida was uncooperative; he would rise from
his chair without permission, lay his head down to sleep, shout profanities, make sexual
references, and pull his shirt over his head. When Deputy Warren indicated that the
chemical test machine was ready, Ogitchida laid down on the floor. The deputies asked
Ogitchida to take the test, but Ogitchida did not reply or respond. The deputies each took
one of Ogitchida’s arms and attempted to lift him, but as they did so Ogitchida became
combative and tried to elbow Deputy Warren. The deputies used wristlocks to maintain
control of Ogitchida, and then placed him in a holding cell. Deputy Gerving recorded
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that Ogitchida had refused to take the test due to his combative and uncooperative
behavior.
Ogitchida was charged with felony refusal to submit to a chemical test. The
complaint noted that Ogitchida’s driving record indicated three driving-while-impaired
(DWI) convictions in the previous ten years. Ogitchida moved to dismiss the charge and
to suppress evidence, but the district court denied the motions.
Prior to commencement of trial, the district court asked if any records needed to be
made, and the following exchange occurred:
PROSECUTOR: Your Honor, just one, and [defense counsel] and I
had previously discussed this. They are going to be
stipulating to the prior DWIs that would be requisite
to match with the felony charge, that we would not be
presenting evidence regarding those prior
convictions.
THE COURT: All right. … [Ogitchida sworn in] [Defense counsel],
would you obtain a valid waiver of his jury trial
rights on that element of the offense?
DEF. COUNSEL: Mr. Ogitchida, you’ve been charged with a felony
because of priors, correct?
OGITCHIDA: Yes.
DEF. COUNSEL: And one of the things that we can do during the trial
is to not have evidence of the priors be presented to
the jury, as we would deem that prejudicial, right?
OGITCHIDA: Yes.
DEF. COUNSEL: And so we just waive that. We stipulated you do
have the requisite priors, so the trial becomes about
this event and this event only, correct? That the trial
becomes, did you do this one? And you don’t get
prejudiced by them hearing that you have priors?
OGITCHIDA: Yes.
DEF. COUNSEL: And so that’s why we’re going to stipulate that
there’s an enhanceable offense here based on priors
so the jury doesn’t hear them.
OGITCHIDA: Yes.
DEF. COUNSEL: And you would so stipulate to that?
OGITCHIDA: Yes.
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The jury found Ogitchida guilty. He now appeals.
DECISION
Evidence suppression
Ogitchida first argues that the district court erred in concluding that he was
lawfully seized, and thus any evidence gleaned as result of his seizure must be
suppressed. In the context of a pretrial suppression of evidence, we review the district
court’s factual findings for clear error and its legal conclusions de novo. State v. Gauster,
752 N.W.2d 496, 502 (Minn. 2008).
Ogitchida argues that he was seized when Deputy Gerving asked him for
identification and asked if he had been driving. We disagree. A seizure of a person
occurs when “objectively and on the basis of the totality of the circumstances, . . . a
reasonable person in the defendant’s shoes would have concluded that he or she was not
free to leave.” In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993). An
encounter with police is not a “seizure” if officers merely approach an individual and ask
questions, or ask for identification. Id. at 782.
We agree with the district court that Ogitchida was seized when he was advised
that he was being placed under arrest for driving with a cancelled license. The seizure at
that time was lawful because the deputies reasonably suspected Ogitchida of criminal
activity. State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995). The deputies’
investigation indicated that (1) Ogitchida was in close proximity to a recently-driven
vehicle, (2) he had been inside the vehicle, (3) no other person was present in or around
the vehicle, (4) his footprints were the only footprints around the vehicle, (5) he had
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possessed the keys to the vehicle, and (6) his license had been cancelled as inimical to
public safety. This collection of “specific, articulable facts” leads to the conclusion that
Ogitchida had engaged in criminal activity. Id. Because the seizure of Ogitchida was
lawful, there is no basis upon which to suppress evidence. See id. at 392 (concluding that
evidence obtained from an illegal search must be suppressed).
Evidence sufficiency
Ogitchida next argues that the evidence was insufficient to sustain his conviction
with regard to two of the elements of test refusal. Claims of insufficient evidence are
reviewed to determine whether the evidence, when viewed in the light most favorable to
the conviction, was sufficient to allow the jury to reach its verdict. State v. Webb, 440
N.W.2d 426, 430 (Minn. 1989). We will not disturb the verdict if the jury, acting with
due regard for the presumption of innocence and the requirement of proof beyond a
reasonable doubt, could reasonably conclude that the defendant was guilty of the offense.
Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).
Ogitchida first asserts that the evidence was insufficient to prove that he was under
arrest for DWI. To be required to take a chemical test, the state must have probable
cause to believe that a person was operating a vehicle while impaired and the person must
be “lawfully placed under arrest” for violation of Minnesota’s DWI statutes. Minn. Stat.
§ 169A.51, subd. 1(b)(1) (2012). Ogitchida’s assertion is contradicted by the record,
which shows that he was read aloud the implied consent advisory, which stated explicitly
that “you have been placed under arrest for” “operating a motor vehicle in violation of
Minnesota’s D.W.I. laws.” Ogitchida’s handwriting also appears on the advisory in
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several places. This evidence was sufficient for the jury to conclude that he was placed
under arrest for driving while under the influence of alcohol before he was asked to take
the breath test.
Ogitchida also contends that the evidence was insufficient to prove that he refused
to take the breath test. In State v. Ferrier, this court engaged in a detailed discussion of
what constitutes criminal test refusal. 792 N.W.2d 98 (Minn. App. 2010), review denied
(Minn. Mar. 15, 2011). The rule is that “refusal to submit to chemical testing includes
any indication of actual unwillingness to participate in the testing process, as determined
from the driver’s words and actions in light of the totality of the circumstances.” Id. at
102. A specific verbal refusal is not required. Id. at 101. A driver is not permitted to
“verbally agree to testing and then frustrate the testing process without criminal
consequence.” Id. Here, the totality of the circumstances shows that Ogitchida refused.
Ogitchida gave some verbal indications that he would take the test, but his conduct
speaks louder than his words. After the test machine was prepared, Ogitchida laid on the
floor and was nonresponsive. When the deputies physically tried to move him, he
became combative, such that the deputies had to subdue him. The jury needed only to
credit the account of Ogitchida’s conduct at the time when he was asked to take the
breath test to validly conclude that he refused.
Stipulation
Ogitchida argues that a necessary element of his offense has not been established.
A felony-level conviction for test refusal requires that the refusal be committed “within
ten years of the first of three or more qualified prior impaired driving incidents.” Minn.
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Stat. §§ 169A.20, subd. 2, .24, subd. 1(1) (2012). Ogitchida asserts that his on-the-record
stipulation was insufficient to fulfill this requirement.
Ogitchida has waived this argument. A defendant may elect to waive his right to a
jury trial on one element of an offense and admit the existence of that element, “thereby
removing the issue from the case.” State v. Berkelman, 355 N.W.2d 394, 397 (Minn.
1984). Berkelman states that a district court errs in denying a defendant the ability to
stipulate to an element when consideration of that element has the potential to harm his
case. Id. Here, Ogitchida’s stipulation was a matter of trial strategy: he concluded that
the prejudicial effect of his past convictions might color the jury’s consideration of his
charged offense. This strategy has merit, given the ease with which Ogitchida’s
convictions could have been proven.
Ogitchida also argues that he did not validly waive his right to have the jury
consider the element of his past convictions, relying on State v. Kuhlmann. 806 N.W.2d
844 (Minn. 2011). Whether a defendant was denied the right to a jury trial is reviewed de
novo. Id. at 848-49. A waiver of this right must be knowing, intelligent, and voluntary,
and must be personally waived by the defendant. Id. at 848.
But Kuhlmann is inapposite here, because in that case the defendant gave no on-
the-record expression of his waiver; rather, his counsel stipulated on his behalf. Id. at
847, 849. Kuhlmann specifically contrasts its facts with another case in which the
defendant gave an on-the-record waiver of his right to a jury trial, State v. Pietraszewski.
283 N.W.2d 887 (Minn. 1979). Here, Ogitchida gave an on-the-record waiver in which
he affirmatively agreed several times to waive his right to jury consideration of the
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element of his past convictions. His affirmations must be viewed in light of the
complaint, which specified that “review of Ogitchida’s driving record indicates prior
DWI convictions in 2003, 2004, and 2006.” The on-the-record colloquy regarding the
waiver is more extensive than that in Pietraszewski. See id. at 890. The record
establishes that Ogitchida’s waiver was knowing, intelligent, and voluntary.
Constitutionality
Ogitchida next argues that Minnesota’s test-refusal statute is unconstitutional as a
violation of substantive due process. However, just days after Ogitchida’s brief was filed
with this court, our supreme court addressed this precise argument and rejected it. State
v. Bernard, 859 N.W.2d 762, 773-74 (Minn. 2015). Ogitchida’s argument is now
foreclosed by precedent.
Pro se supplemental brief
Ogitchida filed a pro se supplemental brief that contains several claims. We will
not consider these claims because they lack support in the record and/or are unsupported
by legal authority. State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002) (concluding that
arguments set out in pro se supplemental brief would not be considered because the “brief
contain[ed] no argument or citation to legal authority in support of the allegations”); State
v. Wembley, 712 N.W.2d 783, 795 (Minn. App. 2006) (stating that assignment of error
based on mere assertion and not supported by argument or authority is waived unless
prejudicial error is obvious on mere inspection), aff’d, 728 N.W.2d 243 (Minn. 2007).
The brief contains a single legal authority, but it does not pertain to the argument made.
Affirmed.
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