This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0668
State of Minnesota,
Respondent,
vs.
Cory Anthony Klingelhoets,
Appellant.
Filed February 13, 2017
Affirmed
Halbrooks, Judge
Cook County District Court
File No. 16-CR-15-55
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Molly Hicken, Cook County Attorney, Grand Marais, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Kirk, Presiding Judge; Halbrooks, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
HALBROOKS, Judge
Appellant challenges his conviction of first-degree test refusal, arguing that the
district court: (1) deprived him of his right to self-representation, (2) committed reversible
error by denying his motion for a judgment of acquittal, and (3) abused its discretion by
permitting the state to reopen its case. We affirm.
FACTS
In March 2015, appellant Cory Anthony Klingelhoets approached a United States
port of entry into Minnesota from Canada. Klingelhoets was driving a red Pontiac at a
relatively high rate of speed as he approached the entry point in the lane that was designated
for commercial trucks. Two Customs and Border Patrol (CBP) officers ordered
Klingelhoets to stop and exit his vehicle and then escorted him into a nearby building. The
CBP officers smelled alcohol on Klingelhoets. Meanwhile, when another CBP officer got
into Klingelhoets’s vehicle to move it out of the commercial traffic lane, he discovered an
open, half-full can of beer on the floor in front of the driver’s seat. The CBP officers
immediately notified the Cook County Sheriff’s Office.
Deputy Jesse Johnson responded to the call, spoke with a CBP officer and
Klingelhoets, and similarly smelled an odor of alcohol coming from Klingelhoets.
Klingelhoets told the deputy that he had consumed “four beers and a couple shots.” Deputy
Johnson initiated field sobriety tests, including the horizontal gaze nystagmus, walk-and-
turn, and one-leg stand, the results of which all indicated that Klingelhoets was intoxicated.
Klingelhoets registered an alcohol concentration of 0.175 on a preliminary breath test.
Deputy Johnson arrested Klingelhoets and read him an implied-consent advisory. The
deputy asked Klingelhoets to submit to a breath test, but Klingelhoets refused.
Klingelhoets was charged with first-degree test refusal, in violation of Minn. Stat.
§ 169A.20, subd. 2 (2014); driving after revocation, in violation of Minn. Stat. § 171.24,
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subd. 2 (2014); and possession of an open bottle, in violation of Minn. Stat. § 169A.35,
subd. 3 (2014).
At multiple hearings prior to trial, Klingelhoets expressed dissatisfaction with his
court-appointed public defender. At his contested omnibus hearing, Klingelhoets’s
attorney told the district court that Klingelhoets did not trust him and wanted to discharge
him. But Klingelhoets subsequently agreed to his representation. Klingelhoets renewed
his request to discharge his attorney at a plea hearing, stating that he had “trouble believing
in [his] attorney at this point in time.” A jury trial was scheduled to begin the following
week. The conversation at the plea hearing continued:
DEFENDANT: I don’t want to go to trial with [my attorney].
COURT: You can fire your attorney, but you may not have the
right to other court appointed counsel. You understand that?
You may be representing yourself.
DEFENDANT: And why is that?
....
COURT: Because you don’t get to pick and choose your
attorney when you have a public defender that’s been
appointed on your case.
DEFENDANT: I don’t trust his judgment.
Klingelhoets stated that his right to a fair trial would be violated if he was required to
continue with his attorney. The district court reiterated that Klingelhoets could discharge
his attorney but that he would represent himself at trial if he did. After the district court
scheduled the jury trial, the following exchange occurred:
MR. WALLACE (Klingelhoets’s attorney): Does the public
defender’s officer remain appointed?
COURT: Mr. Klingelhoets, are you firing Mr. Wallace or not?
DEFENDANT: Yeah, I have fired him before.
COURT: At this point in time?
DEFENDANT: Yes, Your Honor.
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COURT: Okay. And you understand that you may not, you
may not get alternate representation from the public defender’s
office?
DEFENDANT: So then I don’t have the right to a fair trial.
COURT: The question I asked you is pretty simple. Do you
understand that you may not have another attorney appointed
on your behalf? You can disagree with the policy, but you need
to understand that you’re not going to get another public
defender.
DEFENDANT: Isn’t the law the right [to] a fair trial?
COURT: Do you understand what I just said?
DEFENDANT: Not entirely, no.
The district court then stated that “it sounds like Mr. Klingelhoets would appreciate having
some conversation with the Chief Public Defender to confirm whether or not he’s going to
have alternate counsel appointed or not appointed.” The record does not indicate whether
Klingelhoets met with the Chief Public Defender, but no alternate counsel was appointed.
On August 20, 2015, the first day of trial, Klingelhoets refused to be transported
from the jail to the courthouse. Klingelhoets’s attorney told the district court that
Klingelhoets was unwilling to work with him. The trial was continued. The district court
ordered evaluations pursuant to Minn. R. Crim. P. 20.01 and 20.02 to determine whether
Klingelhoets was competent to stand trial.
Based on the results of the competency evaluation, the district court determined that
Klingelhoets was competent to stand trial. At a review hearing in October 2015, the district
court discussed Klingelhoets’s options with him, including his right to self-representation
with the assistance of standby counsel. The district court denied Klingelhoets’s request to
have a different public defender appointed to represent him. And although the district court
determined that Klingelhoets was mentally competent to stand trial, it concluded that he
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was mentally incompetent to represent himself based on the diagnoses in his competency
evaluation and his conduct at a hearing on August 20, 2016, when Klingelhoets “chose not
to speak or did not speak or didn’t have the ability to speak.” Klingelhoets was represented
by his public defender at trial.
On the morning of his rescheduled jury trial, Klingelhoets pleaded guilty to driving
after revocation and possession of an open bottle. The test-refusal charge remained as the
only matter for trial. Deputy Johnson and two CBP officers testified on behalf of the state.
The prosecutor also provided the jury with a redacted version of Klingelhoets’s driving
record. The record included his prior conviction of criminal vehicular operation. Although
Deputy Johnson testified that it was a driving-while-impaired-related conviction, the
record did not indicate that the conviction was a felony.
After the state rested, Klingelhoets moved the district court for a judgment of
acquittal on the ground that the state failed to prove a necessary element of the first-degree
test-refusal charge—specifically, his aggravating felony conviction of criminal vehicular
operation. The prosecutor argued that he sufficiently proved the aggravating conviction
but moved the district court to permit it to reopen its case for the limited purpose of
submitting an additional exhibit, the warrant of commitment for the conviction of felony
criminal vehicular operation. The district court granted the state’s motion to reopen its
case and simultaneously denied Klingelhoets’s motion for judgment of acquittal. The
prosecutor moved for admission of the exhibit, which the district court received, and the
state again rested.
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The jury found Klingelhoets guilty of first-degree test refusal, and the district court
sentenced him to 42 months in prison. This appeal follows.
DECISION
I.
Klingelhoets argues that the district court deprived him of his right to self-
representation because it failed to conduct an adequate inquiry before denying his request
to discharge his court-appointed attorney and represent himself. We review a district
court’s denial of a self-representation motion for clear error. State v. Christian, 657
N.W.2d 186, 190 (Minn. 2003). But because “the self-representation right embodies such
bedrock concepts of individualism and personal autonomy,” we cannot apply the harmless-
error analysis. State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990).
The Sixth and Fourteenth Amendments to the U.S. Constitution guarantee a criminal
defendant the right to self-representation in a state criminal proceeding. Christian, 657
N.W.2d at 190 (citing Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525 (1975)). But
“the right of self-representation is not absolute.” Indiana v. Edwards, 554 U.S. 164, 171,
128 S. Ct. 2379, 2384 (2008). To grant a criminal defendant’s request to represent himself,
the district court must conclude: (1) that the request is clear, unequivocal, and timely and
(2) that the defendant knowingly and intelligently waived his right to counsel. Richards,
456 N.W.2d at 263. Additionally, a “defendant’s competence also plays a role in the
defendant’s ability to waive the right to counsel.” State v. Camacho, 561 N.W.2d 160, 171
(Minn. 1997).
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Klingelhoets argues that he clearly and unequivocally requested to represent
himself. A criminal defendant’s request to proceed pro se as an alternative position, as
opposed to a primary request, is equivocal. Richards, 456 N.W.2d at 264. Based on our
thorough review of the record, Klingelhoets was clear in his request to discharge his public
defender and have new counsel appointed to represent him, but he did not unequivocally
ask to represent himself.
At no point during the contested-omnibus hearing or plea hearing did Klingelhoets
request to represent himself. At the competency-evaluation-review hearing in October
2015, Klingelhoets renewed his request to discharge his public defender. The district court
then asked:
COURT: Mr. Klingelhoets, before I make a determination as
to whether I would allow you to be self-represented—fire your
attorney and proceed—I mean, first of all, I want to make sure
that I understand exactly what it is you’re requesting. Are you
asking for a different public defender, or are you asking that
you represent yourself?
DEFENDANT: At this point in time, I mean, I would like to
have somebody else represent me or at least help me represent
myself. I don’t know all the technical lingo and stuff of the
rules of court . . . .
Klingelhoets stated that he had “a major conflict” with his attorney. In the district court’s
attempt to clarify, the conversation continued:
COURT: I need to have a clear understanding. Are you asking
me to assign a different public defender, or are you asking that
Mr. Wallace [be] discharged, and then have you proceed
without counsel?
DEFENDANT: Um, I would not like to proceed without
counsel. I wish to have some sort of help, some sort of legal
help.
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COURT: It sounds, sounds to me like you’re asking that at a
minimum, you have what would be called advisory counsel—
DEFENDANT: Okay.
COURT: —which I, which I—the Court has the ability to
appoint advisory counsel to somebody who is self-represented,
meaning that they don’t have an attorney—
DEFENDANT: Okay.
COURT: —but need some assistance. I don’t, I don’t know
if—I’m not clear—it’s not clear to me whether that’s what
you’re asking for. It’s a bit equivocal, because you said you
wanted to discharge Mr. Wallace. I don’t know if you’re
asking that a different attorney be appointed for you, or if you
want to represent yourself and you’re just asking for assistance.
What, what are you asking for?
(There was a pause.)
DEFENDANT: How much time would it take, basically, to go
through the whole attorney process again?
COURT: What, what attorney process?
DEFENDANT: If I was to file for another public defender.
And then what would be the soonest amount of time that I
would be able to speak with this individual?
At another point in the hearing, the district court stated that Klingelhoets did not “have the
right to just simply fire one public defender and have another public defender assigned to
[his] case.” Klingelhoets replied, “Okay. I guess I would like to ask for a different one, if
possible.”
The district court denied Klingelhoets’s request to have a different public defender
appointed. After further discussion, and knowing that the district court would not appoint
a different public defender, Klingelhoets stated that he did not “want Mr. Wallace as [his]
public defender . . . in any way, shape, or form.” The district court then asked:
COURT: You want to discharge Mr. Wallace?
DEFENDANT: I do want to discharge Mr. Wallace.
COURT: And represent—and represent yourself?
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DEFENDANT: Why does it state in the Rules of Court that
the only reason I’ll have to represent myself is if it’s
unjustified?
COURT: I don’t understand your question . . . .
The defendant then asked the district court to “lawfully appoint [him] a new attorney.”
We conclude that Klingelhoets’s request to represent himself was equivocal. The
only clear response he made to the district court’s patient line of inquiry was that he wanted
to discharge Wallace. At no point did Klingelhoets respond to the district court’s questions
concerning whether he wanted to represent himself and waive his right to counsel; instead,
Klingelhoets reiterated that his right to a fair trial would be violated if the district court did
not appoint a different public defender. Because we conclude based on our review of the
entire record that Klingelhoets’s request was equivocal, we need not address whether the
district court correctly applied the mental-competency standard in Edwards or Camacho.
See Edwards, 554 U.S. at 170, 128 S. Ct. at 2383; Camacho, 561 N.W.2d at 171.
II.
Klingelhoets argues that the district court erred by denying his motion for a
judgment of acquittal because the state failed to present evidence of his aggravating felony
conviction, which is a required element to convict him of first-degree test refusal. See
Minn. Stat. §§ 169A.20, subd. 2, .24, subd. 1(3)(ii) (2014). We review de novo a motion
for judgment of acquittal because it is “procedurally equivalent to a motion for a directed
verdict.” State v. McCormick, 835 N.W.2d 498, 506 (Minn. App. 2013) (quoting State v.
Slaughter, 691 N.W.2d 70, 74 (Minn. 2005)), review denied (Minn. Oct. 15, 2013).
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A criminal defendant may move for a judgment of acquittal at the close of evidence
of either party if the evidence is insufficient to sustain a conviction. Minn. R. Crim.
P. 26.03, subd. 18(1)(a). “The test for granting a motion for a directed verdict is whether
the evidence is sufficient to present a fact question for the jury’s determination, after
viewing the evidence and all resulting inferences in favor of the state.” Slaughter, 691
N.W.2d at 74-75. A district court does not err if it denies a motion for a judgment of
acquittal at the same time it grants the state’s motion to reopen the case. State v. Thomas,
882 N.W.2d 640, 641 (Minn. App. 2016), review granted (Minn. Sept. 28, 2016).
In Thomas, the defendant was charged with two counts of second-degree driving
while impaired, which were enhanced offenses because the defendant had two prior
qualified criminal convictions. Id. at 642. At trial, the state rested without offering
evidence of the defendant’s prior convictions, and the defendant immediately moved for
judgment of acquittal. Id. at 643. During the parties’ arguments on the defendant’s motion,
the state moved to reopen its case so that it could submit evidence of the defendant’s prior
convictions. Id. The district court granted the state’s motion to reopen its case and denied
the defendant’s motion. Id. On appeal, we concluded that the district court did not err by
denying the motion for judgment of acquittal because it denied the defendant’s motion “at
the same time that it granted the state’s motion to reopen,” and it did not abuse its discretion
to permit the state to reopen its case under these circumstances. Id. at 643-47.
Klingelhoets contends that Thomas is distinguishable from his case because, unlike
Thomas, the district court denied his motion for judgment of acquittal before allowing the
state to reopen its case. We disagree. As in Thomas, the state here moved to reopen its
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case while the parties argued Klingelhoets’s motion for judgment of acquittal. See id. at
643. Similar to Thomas, the district court granted the state’s motion to reopen its case at
the same time that it denied Klingelhoets’s motion. See id.
The state argues that the district court did not err because evidence in the record
presented the jury with a question of fact regarding Klingelhoets’s aggravating conviction.
Because the district court denied Klingelhoets’s motion for a judgment of acquittal at the
same time it granted the state’s motion to reopen its case, we conclude that the district court
did not err. Therefore, we do not address the state’s argument. See State v. Vang, 847
N.W.2d 248, 265 & n.9 (Minn. 2014) (declining to resolve an issue that was not necessary
to dispose of the case).
III.
As an additional basis, Klingelhoets contends that the district court erred by granting
the state’s motion to reopen its case because the defense had not yet presented its case. We
review “the disposition of a party’s request to reopen its case after the party has rested
under an abuse-of-discretion standard.” State v. Caine, 746 N.W.2d 339, 352-53 (Minn.
2008).
The district court may, in the interests of justice, “allow any party to reopen that
party’s case to offer additional evidence.” Minn. R. Crim. P. 26.03, subd. 12(g). To
determine whether to permit a party to reopen its case, the district court should consider
three factors: (1) when the request was made, (2) whether the evidence concerned a
controlling issue and was material, not cumulative, and (3) whether failure to produce the
evidence earlier was motivated by an improper purpose. Caine, 746 N.W.2d at 353;
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Thomas, 882 N.W.2d at 644. We have interpreted Minn. R. Crim. P. 26.03, subd. 12(g)
broadly and concluded that a district court may “grant or deny a motion to reopen, even
when made by the state after the defense has pointed out deficiencies in the state’s prima
facie case in a motion for acquittal.” Thomas, 882 N.W.2d at 646.
Here, in response to Klingelhoets’s motion for judgment of acquittal, the state
moved the district court to reopen its case for the limited purpose of admitting evidence
that Klingelhoets’s prior conviction of criminal vehicular operation was a felony-level
offense. Klingelhoets only challenges whether the district court abused its discretion based
on the timing of the state’s request to reopen its case.
The Minnesota Rules of Criminal Procedure lay out the order of a jury trial:
a. The jury is selected and sworn.
b. The court may deliver preliminary jury instructions.
c. The prosecutor may make an opening statement
limited to the facts the prosecutor expects to prove.
....
e. The prosecutor presents evidence in support of the
state’s case.
f. The defendant may offer evidence in defense.
g. The prosecutor may rebut the defense evidence, and,
the defense may rebut the prosecutor’s evidence. In the
interests of justice, the court may allow any party to reopen that
party’s case to offer additional evidence.
Minn. R. Crim. P. 26.03, subd. 12. Klingelhoets asserts that the rule only authorizes a
district court to grant a party’s motion to reopen its case after both the state and the defense
have rested and that permitting the state to reopen its case before the defense rests
constitutes an abuse of discretion. But because this case is factually indistinguishable from
Thomas, we conclude that the district court did not abuse its discretion.
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Klingelhoets also argues that it is fundamentally unfair to permit the state to reopen
its case upon a motion for a judgment of acquittal to “remedy gaps in its case.” See State
v. Allen, 533 A.2d 559, 563-64 (Conn. 1987). But we rejected Allen’s reasoning in Thomas,
and we similarly reject it here. Thomas, 882 N.W.2d at 644-45.
In summary, because Klingelhoets’s requests to represent himself were equivocal,
we conclude that his constitutional right to self-representation was not violated and the
district court did not clearly err by permitting the public defender to continue representing
Klingelhoets. We also hold, based on Thomas, that the district court properly exercised its
discretion by denying Klingelhoets’s motion for judgment of acquittal and granting the
state’s motion to reopen its case.
Affirmed.
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