State of Minnesota v. Luke Vernon Kjono

• Court: Court of Appeals of Minnesota
• Decided: January 3, 2017
• Docket: A15-2073
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-2073

State of Minnesota, Respondent,

vs.

Luke Vernon Kjono, Appellant.

Filed January 3, 2017 Affirmed Ross, Judge

Otter Tail County District Court File No. 56-CR-15-450

Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St. Paul, Minnesota; and

David J. Hauser, Otter Tail County Attorney, Fergus Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard A. Schmitz, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Jesson, Judge.

UNPUBLISHED OPINION

ROSS, Judge

Luke Kjono, drunk, fled from police in his car, crashed outside Fergus Falls, ran

across a frozen lake, broke into a rural home, found keys in the ignition of another car,

stole that car, and then drove back to the bar and called his father to say that his car had been stolen. Kjono represented himself unsuccessfully at his jury trial on seven criminal

charges, including drunk driving and burglary. Kjono appeals his convictions, arguing that

the district court’s jury instructions essentially directed a guilty verdict on the burglary

charge and that the state committed prosecutorial misconduct by failing to prevent an

officer from testifying about Kjono’s previous drunk-driving convictions. Because Kjono

fails to show that the allegedly erroneous instruction was a reversible error, and because

the officer’s improper testimony did not significantly affect the verdict, we affirm.

FACTS

Shortly after midnight in February 2015, Luke Kjono drove away from the Z103

Bar & Grill in Fergus Falls in a manner that left police suspecting that he was intoxicated.

He took them on a high-speed chase that ended when he crashed into a ditch. Kjono fled

through brush and across a frozen lake, where he happened upon an empty rural house. He

found the door unlocked and went inside. Then he made his way into the home’s attached

garage and saw a Chevy Impala. The keys were in the ignition, and Kjono took the car.

Kjono drove back to Fergus Falls and parked on a street. He walked to a gas station

and hitched a ride back to the bar. Eventually, from a hotel connected to the bar, he called

his parents and told them his car had been stolen. But Kjono’s parents had already been

contacted by the police. They urged him to stay put until police arrived. He did. He cleaned

up in a hotel restroom, and Officer Brooks Johnson found him at about 3:00 a.m.

Officer Johnson saw that Kjono’s eyes were bloodshot and watery, that he had fresh

scratches on the back of his hands, that his jeans were stained with blood, and that he

smelled of an alcoholic beverage. Kjono said that he had been at the bar from 11:00 p.m.

2 until 3:00 a.m., but the officer knew that the bar closed no later than 2:00. Officer Johnson

asked for details, but Kjono’s answers were hesitant and vague. The officer arrested him

and took him to the Otter Tail County Jail.

Officer Johnson administered field sobriety tests, all of which corroborated his

suspicion that Kjono was intoxicated. Kjono agreed to a breath test. Four hours had passed

since the chase began. The breath test indicated that Kjono’s alcohol content was 0.10.

Sergeant Joseph Axness met with Kjono at the jail the next day and Kjono agreed

to speak with him. The sergeant outlined the pre-arrest events, and Kjono offered details.

He admitted to drinking “probably about four” beers at home before going to the bar and

drinking more. He also admitted that he fled the officer who attempted to stop him.

The state charged Kjono with seven counts: second-degree burglary of a dwelling;

theft of a motor vehicle; fleeing a peace officer in a motor vehicle; second-degree impaired

driving (under the influence of alcohol); second-degree impaired driving (0.08 within two

hours); driving in violation of a restricted driver’s license; and fleeing a police officer by

means other than a motor vehicle.

Kjono discharged his appointed attorney and proceeded to trial representing himself.

He stipulated to having two prior drunk-driving convictions. The district court explained

to him that, by so stipulating, the state would not be allowed to discuss the prior convictions

at trial.

But at trial, the prosecutor had the following exchange with Officer Johnson:

Q: Officer Johnson, did you at some point run a driving record of the defendant? A: Yes, I did.

3 Q: What -- what [did] you learn when you [ran] the defendant’s driving record? A: That he had previous DWI convictions and that he also had a no use of alcohol or drugs restriction on his driver’s license.

The prosecutor introduced an official copy of Kjono’s driver’s license that showed the no-

alcohol-or-drugs restriction. After the officer’s testimony concluded, the court called the

parties to the bench to discuss the inappropriate prior-drunk-driving testimony. With the

parties’ consent, the court gave the jury the following instruction:

Folks, you did hear some testimony regarding . . . the defendant’s driving record. You should disregard this testimony and rely solely upon the information about the defendant’s driving records which I will give you at the conclusion of the trial.

Outside the jury’s presence, the prosecutor clarified that she “did not react or ask any

further questions relating to [Officer Johnson’s drunk-driving comments], knowing that it

was an error by him.” The court received Kjono’s driving record into evidence and redacted

it to exclude the drunk-driving convictions, showing only the no-alcohol-or-drugs

restriction.

Officer Johnson testified about Kjono’s breath test results. He explained that “the

average burn-off rate is .015 per hour,” indicating that Kjono likely had an alcohol content

of up to 0.16 during his flight and up to 0.13 while he drove the Chevy to Fergus Falls.

Kjono testified. He said that he had three beers at the bar but denied drinking at

home. On cross-examination, he admitted fleeing police in his vehicle, leaving his car,

entering the empty home, taking the car from the garage, and driving it back to town. He

admitted to fabricating the story about his car being stolen. Kjono’s father testified

4 inconsistently on his behalf. He stated that his son “sound[ed] sober,” but also that he

sounded like he had been “drinking too much.”

The court proposed instructing the jury that “[a] connected structure includes an

attached garage,” addressing a component of a statutory definition related to the burglary

charge. Neither the prosecutor nor Kjono objected to it. During its final jury instructions,

the court advised the jury to presume Kjono was innocent and to “disregard all evidence I

have ordered stricken or have told you to disregard.” When defining the elements of

second-degree burglary, it instructed, in relevant part, that to convict, the jury must find

that,

[F]irst, defendant entered a building without consent of the person in lawful possession. A building is a structure suitable for affording shelter for human beings, including an appurtenant or connected structure. A connected structure includes an attached garage.

Second, the building was a dwelling. A dwelling is a building used as a permanent or temporary residence.

The jury found Kjono guilty on all counts. Kjono appeals.

DECISION

Kjono challenges his convictions on two grounds. He argues first that the district

court’s instruction that a connected structure includes an attached garage essentially

directed a guilty verdict for burglary and constitutes a reversible, structural error. He argues

second that the prosecutor committed misconduct by failing to prepare Officer Johnson so

as to prevent him from testifying about Kjono’s prior drunk driving convictions.

5 I

Kjono challenges his burglary conviction, claiming error in the district court’s

instruction that “a connected structure incudes an attached garage.” A defendant is entitled

to have the elements of the charged offense decided by a jury, even if the evidence is

undisputed. State v. Carlson, 268 N.W.2d 553, 560 (Minn. 1978). Jury instructions must

define the crime charged. State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001). A district

court should explain the elements of the offense rather than simply repeat statutes. Id. A

district court has considerable latitude in the language of jury instructions. State v. Gatson,

801 N.W.2d 134, 147 (Minn. 2011). But an instruction that deprives the defendant of the

right to have the jury determine every element of the charged offense is not subject to

harmless-error analysis and requires reversal. See State v. Moore, 699 N.W.2d 733, 738

(2005).

Whoever enters a “building” without consent, intending to commit a crime, or who

enters a building without consent and commits a crime while inside, commits second-

degree burglary if the building is a “dwelling.” Minn. Stat. § 609.582, subd. 2(a)(1) (2014).

“Building” is defined as “a structure suitable for affording shelter for human beings

including any appurtenant or connected structure.” Minn. Stat. § 609.581, subd. 2 (2014).

“Dwelling” is defined as “a building used as a permanent or temporary residence.” Id.,

subd. 3. Kjono contends that, because the district court’s instruction about the garage made

“clear that the building [he entered] was a dwelling,” the instruction relieved the jury of its

duty to find the “dwelling” element and effectively directed a verdict for the prosecution.

He concludes that this is a structural error warranting automatic reversal.

6 We addressed a claim somewhat similar to Kjono’s in State v. Staeheli, No. A15-

0250, 2016 WL 456804 (Minn. App. Feb. 8, 2016). Our opinion in that case is unpublished,

so we mention it only for any reasoning that may help assess Kjono’s argument. In Staeheli,

the district court instructed that “an attached garage is included in the definition of a

dwelling.” Id. at *2. We held that that instruction essentially directed a verdict for the

prosecution because it established the “dwelling” element, thereby constituting structural

error, and we reversed. Id.

This case differs from Staeheli. Here, again, the district court instructed:

The elements of burglary in the second degree are, first, defendant entered a building without consent of the person in lawful possession. A building is a structure suitable for affording shelter for human beings, including an appurtenant or connected structure. A connected structure includes an attached garage.

Second, the building was a dwelling. A dwelling is a building used as a permanent or temporary residence.

This instruction does not impermissibly establish the “dwelling” element, as it did in

Staeheli, because it did not tell the jury that a garage is a dwelling. And it left for the jury

to find that the building attached to the garage (a house) was a “dwelling”—“a building

used as a permanent or temporary residence.”

We have rejected an assertion that jury instructions direct a verdict if the jury retains

the ability to make key factual determinations. See, e.g., State v. Koppi, 779 N.W.2d 562,

570–71 (Minn. App. 2010) (holding that instruction that defendant had been given

reasonable amount of time to consult with attorney was not directed verdict because

consultation time was not jury question in test-refusal prosecution), rev’d on other grounds,

7 798 N.W.2d 358 (Minn. 2011). By contrast, we will reverse a conviction when the

instruction removes key factual considerations from the province of the jury. See, e.g.,

Moore, 699 N.W.2d at 737–38 (holding instruction that loss of a tooth is a permanent loss

of the function of a bodily member improperly established great-bodily-harm element of

assault).

The challenged instruction in context clarifies the definition of “connected

structure.” An “attached garage” is not given to different meanings. Not all attached

garages are dwellings, but all attached garages are connected structures. A “garage” is

necessarily a “structure,” and “attached” and “connected” are synonyms. An attached

garage is, invariably, a structure that shares part of its physical construction with another

structure. It is impossible for a garage not to be a structure or for an attached garage to be

physically unconnected to the attached structure.

Kjono admits that, despite the challenged instruction, the jury still had “to take two

more steps to connect the dots” to decide the element than the Staeheli jury had to take

after the flawed instruction in that case. But he contends that the effect was the same

because it “legally bound the jury to reach the same result.” But the “two steps” that Kjono

refers to are two essential factual determinations the jury had to make before convicting

him of second-degree burglary. For the jury to find a defendant guilty, it must determine

that (1) the defendant entered, without consent, a structure suitable for affording shelter for

human beings (a “building”) or a structure connected to it; (2) the structure was used as a

permanent or temporary residence (a “dwelling”); and (3) the defendant committed a crime

or intended to commit a crime once inside. The Staeheli instruction implied two factual

8 premises: (1) that the garage was attached to a building (a structure fit for human

habitation) and (2) that the building was a dwelling. The instruction here implies no

element.

The instruction therefore does not appear to be erroneous. But even if it is, Kjono

does not make a convincing argument that the alleged error constitutes a structural error.

He nevertheless rests his appeal on that contention. He also does not undertake plain-error

analysis, as he offers no explanation how the alleged error prejudiced him in light of the

overwhelming evidence of his guilt. See State v. Milton, 821 N.W.2d 789, 805 (Minn.

2012) (we review unobjected-to jury instructions for plain error and consider whether there

was an error, that was plain, and that affected the defendant’s substantial rights). Kjono’s

instruction argument fails.

II

Kjono claims that the state committed prosecutorial misconduct by failing to prepare

Officer Johnson as a witness, resulting in the officer’s testifying about Kjono’s prior drunk

driving convictions. Kjono did not object at the time of the officer’s testimony, and we

review claims of unobjected-to prosecutorial misconduct under a modified plain-error test.

State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Kjono can prevail on appeal only if

he shows that the prosecutor committed error and that the error was plain. See id. If he

succeeds, the burden shifts to the state to demonstrate that the misconduct did not affect

Kjono’s substantial rights. See id. If the state fails to carry this burden, we still will reverse

only if a new trial is necessary to ensure the fairness, integrity, and public reputation of

judicial proceedings. See id.

9 We can assume, without deciding, that the state committed plain error here. The

state easily carries its burden to show that there is no reasonable likelihood that the

misconduct had any significant effect on the verdict. See Ramey, 721 N.W.2d at 302. First,

the officer’s reference to the prior convictions was isolated and brief. Second, the district

court conferred with the parties and, with their consent, gave the jury a cautionary

instruction to disregard the officer’s testimony about Kjono’s driving record and instead to

rely on the driving record provided during the final instructions. We presume that jurors

follow the district court’s instructions. State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998).

And third, the evidence of Kjono’s guilt for driving while impaired was

overwhelming. Kjono’s only defense to that charge was that he did not “feel” drunk enough

to register a 0.10 breath test after his arrest. We do not suppose that a jury will be heavily

persuaded to reject a scientific test of a person’s intoxication level after hearing from the

accused drunk driver that he did not “feel” as intoxicated as the test indicated he was. And

Kjono admitted to almost everything else: drinking at home, drinking at the bar, leading

police on a high-speed chase, crashing his car, fleeing police on foot, stumbling while he

fled, entering someone else’s home, taking a car from a garage, and driving back to town

and returning to the bar. Jurors also heard from Officer Johnson about Kjono’s red,

bloodshot eyes, his failed sobriety tests, and Kjono’s alcoholic odor. And they learned that

the metabolic rate of alcohol in the human body would suggest that Kjono’s alcohol level

was more likely closer to 0.16 during the chase and 0.13 during his drive back to town.

Kjono’s only witness, his father, gave conflicting testimony about how Kjono sounded on

10 the phone, saying both, “He sure sounds sober,” and, “By his voice he’s been drinking too

much.”

We have no doubt that the overwhelming evidence that Kjono drove drunk the night

of his arrest, not the brief testimony that Kjono drove drunk previously, convinced the jury

to find Kjono guilty of driving while impaired.

Affirmed.