County District Court File No. 02-CR-14-4578
in part, reversed in part, and remanded
Swanson, Attorney General, St. Paul, Minnesota; and Anthony
C. Palumbo, Anoka County Attorney, Kelsey R. Kelley,
Assistant County Attorney, Anoka, Minnesota (for respondent)
Douglas V. Hazelton, Halberg Criminal Defense, Bloomington,
Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge;
Halbrooks, Judge; and Kirk, Judge.
manipulation of the steering wheel of a moving motor vehicle
by a passenger constitutes "operation" of a motor
vehicle under Minn. Stat. § 609.21 (2012).
Tchad Tu Henderson appeals his criminal vehicular operation
(CVO) convictions. He argues that: (1) the district court
erred when it denied his motion to dismiss the complaint for
lack of probable cause; (2) there was insufficient evidence
presented at trial to support the district court's
finding that he operated the motor vehicle; and (3) the
district court committed plain error when it convicted him of
CVO as charged in count 1 of the complaint. Appellant asks
this court to reverse his convictions and dismiss the charges
against him. Since appellant was tried and convicted, his
probable cause challenge is not relevant on appeal. See
State v. Holmberg, 527 N.W.2d 100, 103 (Minn.App. 1995),
review denied (Minn. Mar. 21, 1995). Because we
conclude that there was sufficient evidence presented at
trial to support the court's finding that appellant
operated the motor vehicle, we affirm. However, the district
court erred when it entered a conviction on count 1 of the
complaint, and we reverse entry of that conviction and remand
to the court to amend the warrant of commitment and to
determine if resentencing is necessary.
22, 2014, appellant was charged with one count of CVO causing
great bodily harm due to grossly negligent conduct, in
violation of Minn. Stat. § 609.21, subd. 1(1) (2012),
and three counts of CVO causing great bodily harm as a result
of operating a motor vehicle in a negligent manner while
under the influence of alcohol negligent/alcohol, in
violation of Minn. Stat. § 609.21, subd. 1(2)(i) (2012).
Appellant moved to dismiss the charges, arguing that the
state failed to establish probable cause that he operated the
motor vehicle. Following a contested hearing, the district
court concluded that there was sufficient probable cause to
support the charges and denied appellant's motion.
district court held a one-day court trial on November 18,
2015. Appellant stipulated that the injuries B.H., B.F., and
A.S. sustained in the crash constituted great bodily harm,
that the crash occurred on July 20, 2014 in Anoka County, and
that he was under the influence of alcohol at the time of the
crash. The district court considered the following evidence
on the remaining contested element of whether appellant
operated the vehicle:
testified that she went to a bar with B.F. to meet appellant
and A.S. B.H. did not consume alcohol that night, but the
others did. At the bar, appellant appeared to be drunk. He
was slurring his words, tripping over his own feet, and he
did not seem very coherent. When the bar closed, the group
decided that B.H. would drive them to appellant's
friend's house because she was sober. B.H. did not have a
valid driver's license. Appellant was the front-seat
passenger and began arguing with B.H. over the directions to
his friend's residence.
testified that she pulled over at a gas station, verified
appellant's friend's address, and started the
navigation system on appellant's cellphone. Before
pulling out of the gas station, B.H. instructed everyone to
put on their seatbelts, which made appellant angry and
argumentative, but he complied.
B.H. pulled out of the gas station, the arguing subsided, but
then appellant told B.H. that she missed a turn, and he
"took the steering wheel and yanked it towards"
himself. This caused B.H. to lose control of the vehicle and
it crashed, landing upside down. B.H. testified that when
appellant pulled the steering ...