This opinion is nonprecedential except as provided by
                          Minn. R. Civ. App. P. 136.01, subd. 1(c).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A23-1011

                                     State of Minnesota,
                                        Respondent,

                                              vs.

                                    Rosalio Martinez, Jr.,
                                         Appellant.

                                    Filed June 17, 2024
                                  Reversed and remanded
                                       Gaïtas, Judge

                                 Steele County District Court
                                   File No. 74-CR-22-1197

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Julia A. Forbes, Steele County Attorney, Campbell R. Housh, Assistant County Attorney,
Owatonna, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Gaïtas, Presiding Judge; Worke, Judge; and Larson,

Judge.

                             NONPRECEDENTIAL OPINION

GAÏTAS, Judge

         Appellant Rosalio Martinez Jr. challenges his conviction, following a jury trial, for

second-degree driving while impaired—refusal to submit to a chemical test of his blood or

urine (DWI test refusal). He argues that the prosecutor’s introduction of a summary of his
prior convictions into evidence—which the district court allowed pursuant to Minnesota

Rule of Evidence 1006—violated his constitutional right to confront witnesses. Martinez

also contends that his conviction must be reversed because the district court’s jury

instruction for DWI test refusal provided an inaccurate definition of the legal concept of

probable cause. Because the admission of the summary of Martinez’s prior convictions

into evidence violated Martinez’s constitutional right to confront witnesses, and the error

was prejudicial, we reverse and remand for a new trial.

                                         FACTS

      In July 2022, an Owatonna police officer stopped Martinez because he believed that

Martinez was driving with a canceled driver’s license and he had observed Martinez’s car

touch the lane line. After interacting with Martinez during the traffic stop, the officer

suspected that Martinez was under the influence of alcohol or drugs. The officer arrested

Martinez and then obtained a search warrant for Martinez’s blood or urine. Martinez

refused to provide a blood or urine sample.

      Based on these events, respondent State of Minnesota charged Martinez with

second-degree DWI test refusal and two other offenses that were dismissed before trial.

The complaint alleged that Martinez had committed prior driving-while-impaired offenses,

which enhanced the charge of DWI test refusal to a gross-misdemeanor.

      Martinez had a jury trial. At the beginning of the trial, and outside of the jury’s

presence, the prosecutor informed defense counsel and the district court that he intended

to introduce a “summary” of Martinez’s prior convictions under rule 1006 of the Minnesota

Rules of Evidence. There was no further discussion of the issue. During the trial, the


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prosecutor called a paralegal as a witness. The paralegal testified that she had requested

information about Martinez’s prior convictions and received “[a]pproximately 50 to 60

pages” of material. She identified exhibit 5 as “a summary of the criminal convictions that

[she] requested for this case.” 1 The prosecutor then asked the paralegal, “Would you mind

reading for the jury Number 1 and Number 2 on that document?” But defense counsel

objected, and the district court sustained the objection. The prosecutor offered exhibit 5

into evidence. Over defense counsel’s hearsay objection, the district court admitted

exhibit 5. That exhibit is shown here:




1
    The paralegal did not testify that she prepared exhibit 5.

                                                3
       Defense counsel asked the district court to give the pattern jury instruction for the

offense of DWI test refusal. But the district court provided its own instruction, which

informed the jury that “probable cause” to arrest is “a legal term that means an honest and

strong suspicion based on all of the information the officer knew at the time.”

       The jury found Martinez guilty of second-degree DWI test refusal. It also found

that the state had proved the existence of two prior impaired-driving incidents beyond a

reasonable doubt.

       Martinez appeals.

                                       DECISION

       Martinez argues that the district court erred in admitting exhibit 5—the summary of

his convictions. He contends that the summary was not admissible under rule 1006 of the

Minnesota Rules of Evidence, was inadmissible hearsay, and violated his constitutional

right to confront witnesses, requiring reversal of his conviction. Martinez further argues

that the district court’s jury instruction on DWI test refusal was legally incorrect,

mandating a new trial. We agree with Martinez that the admission of the summary of his

convictions into evidence violated his constitutional right to confront witnesses and that

this error was prejudicial. Thus, we reverse and remand for a new trial on this ground.

       We begin our analysis by considering the applicable standard of review. An

appellate court applies different standards of review for errors that were preserved with an

objection at trial and unobjected-to errors. Because the parties disagree as to the standard

of review we should apply here, we briefly review these standards.




                                             4
       When a criminal defendant preserved an evidentiary error by objecting to the

evidence at trial, the applicable standard of review depends on whether the error implicated

a constitutional right.    For preserved evidentiary errors that did not implicate a

constitutional right, the appellate court reviews the district court’s rulings for an abuse of

discretion. State v. Peltier, 

 (Minn. 2016). “A district court abuses

its discretion when its decision is based on an erroneous view of the law or is against logic

and the facts in the record.” State v. Vangrevenhof, 

, 736 (Minn. 2020)

(quotation omitted). To obtain reversal of a conviction based on such errors, the appellant

must show that there is “a reasonable possibility that the wrongfully admitted evidence

significantly affected the verdict.”    Peltier, 

 (quotation omitted)

(discussing factors a court considers when determining whether wrongfully admitted

evidence significantly affected the verdict). When an appellant alleges that an evidentiary

error—preserved with an objection—violated the appellant’s constitutional right to

confront witnesses, the reviewing court considers de novo whether there was a

constitutional violation. State v. Caulfield, 

 (Minn. 2006). If there

was a violation of the constitutional right to confront witnesses, reversal is required unless

the error was harmless beyond a reasonable doubt. 

.

       When a defendant failed to preserve an evidentiary error—constitutional or

otherwise—the appellate court applies the plain-error standard of review. State v. Tscheu,

 (Minn. 2008). This standard requires a defendant to show: (1) error,

(2) that was plain, and (3) that affected substantial rights. State v. Griller, 

 (Minn. 1998). An error is plain if it is “clear and obvious; usually this means an


                                              5
error that violates or contradicts case law, a rule, or an applicable standard of conduct.”

State v. Matthews, 

 (Minn. 2010). Such an error affected substantial

rights when “there is a reasonable likelihood that the error substantially affected the

verdict.” State v. Matthews, 

 (Minn. 2011). When an appellant

satisfies the three prongs of the plain-error test, the appellate court must decide whether to

address the error to “ensure fairness and the integrity of the judicial proceedings.” Griller,

.

       On occasion, the appellate court must decide as a threshold issue whether a trial

objection was sufficient to preserve an evidentiary error. This may occur when an appellant

objected to evidence on one ground at trial and then, on appeal, raises a seemingly different

challenge to the evidence. As relevant here, when an appellant objected to evidence at trial

on a ground other than a violation of the constitutional right to confront witnesses, the

appellant did not preserve the constitutional error unless it is “apparent from the context”

that the constitutional error was the “specific ground” for the objection. State v. Rossberg,

 (Minn. 2014).

       We now turn to the arguments of the parties regarding the applicable standard of

review. Martinez points out that he objected to the summary of his convictions at trial on

“hearsay grounds.” He argues that this objection preserved each of the errors he alleges on

appeal, including his claim that the evidence violated his constitutional right to confront

witnesses. The state responds that Martinez’s hearsay objection only preserved the issue

of whether the summary was inadmissible hearsay and not the other issues that Martinez

now raises.


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       Whether Martinez’s objection on “hearsay grounds” was sufficient to preserve his

other challenges to the evidence is a close question. But we need not answer that question

because we conclude that the admission of the summary of convictions was error that

entitled Martinez to relief even under the plain-error standard of review.

       Both the United States and Minnesota Constitutions afford a criminal defendant the

right “to be confronted with the witnesses against” the defendant. U.S. Const. amend. VI;

Minn. Const. art. I, § 6; see also State v. Hull, 

 (Minn. 2010) (noting

that confrontation claims are analyzed the same under the federal and state constitutions).

These provisions are often referred to as the “Confrontation Clause.” The Confrontation

Clause prohibits testimonial statements from being offered for the truth of the matter

asserted when the defendant is unable to cross-examine the declarant. Anderson v. State,

 (Minn. 2013) (citing Crawford v. Washington, 

 (2004)).

An appellant alleging a violation of the Confrontation Clause must show that “the statement

in question was testimonial, the statement was admitted for the truth of the matter asserted,

and the [appellant] was unable to cross-examine the declarant.” 

       Turning to the first element of a Confrontation Clause violation—whether the

evidence was a testimonial statement—the “critical determinative factor . . . is whether it

was prepared for litigation.” Caulfield, 

 (citing State v. Bobadilla, 

 (Minn. 2006) (“[T]he testimonial question turns on whether

government questioners or declarants take or give a statement ‘with an eye toward trial.’”)

and State v. Scacchetti, 

 (Minn. 2006) (“[T]he central considerations

are . . . whether either a declarant or government questioner is acting, to a substantial


                                             7
degree, in order to produce a statement for trial.”)). If a document is prepared “for

authentication purposes” and not “for providing evidence in litigation,” it is nontestimonial.

State v. Noor, 

, 655 (Minn. App. 2018), rev. denied (Minn. Apr. 25, 2018).

       Martinez argues that exhibit 5 is a testimonial statement because it was prepared for

litigation. We agree. The record shows that the state prepared the summary of Martinez’s

prior convictions to be used at trial as substantive evidence of those convictions. The

paralegal for the prosecutor’s office testified that she obtained records concerning

Martinez’s prior convictions. The summary—which includes a case caption—purports to

be the state’s summary of those convictions. At trial, the state introduced the summary in

evidence to prove the prior-conviction element of its case. Indeed, the summary was the

only evidence of Martinez’s prior convictions.

       The state contends that the summary is a nontestimonial record “that authenticates

other kinds of certified copies of public records,” as was the document at issue in our Noor

decision. But we are not persuaded. In Noor, the state introduced a “certificate of order

sent” into evidence—a document that certified the authenticity of a Department of Public

Safety order revoking Noor’s driver’s license and confirming that the order had been

mailed to Noor. Noor argued on appeal that the “certificate of order sent” was a testimonial

document for the purpose of the Confrontation Clause. Id. at 650. We rejected that

argument, determining that the document was nontestimonial because “(1) United States

Supreme Court precedent suggests documents introduced for authentication purposes,

instead of to prove a fact, are nontestimonial; (2) an examination of Minnesota caselaw




                                              8
reaches the same result; and (3) the certificate is duplicative of nontestimonial documents.”

Id. at 654.

       Our rationale in Noor does not apply here. The summary was not introduced to

authenticate other evidence. It was introduced to prove a fact—that Martinez had prior

qualifying convictions. Moreover, the summary was not duplicative of nontestimonial

documents. The summary was the sole evidence of Martinez’s prior convictions presented

at trial. Given these circumstances, the summary was testimonial. Accord Melendez-Diaz

v. Massachusetts, 

 (2009) (determining that affidavits reporting results

of forensic analysis were testimonial because their “sole purpose . . . was to provide prima

facie evidence of” an element of the offense); State v. Jackson, 

(Minn. App. 2009) (determining that a firearm trace report introduced to prove firearm

ownership was testimonial), rev. denied (Minn. July 22, 2009); State v. Weaver, 

 (Minn. App. 2007) (determining that a lab report introduced to prove

the cause of death in a murder trial was testimonial), rev. denied (Minn. Sept. 18, 2007);

Caulfield, 

 (determining that a lab report introduced to prove that

a substance was cocaine in a drug-sale trial was testimonial).

       The parties do not dispute that the remaining two elements of a Confrontation

Clause violation occurred in this case—that the summary was offered as proof of

Martinez’s prior convictions and that Martinez did not have an opportunity to cross-

examine the declarant. 2 Because the summary was a testimonial document offered to prove


2
  At oral argument before this court, the prosecutor candidly acknowledged that he
prepared the summary himself.

                                             9
the truth of the matter asserted, and Martinez did not have an opportunity to cross-examine

the declarant, the admission of the summary in evidence violated Martinez’s constitutional

right to confrontation. Thus, there was plain error.

       There is also no dispute that the erroneous admission of the summary affected

Martinez’s substantial rights. To convict Martinez of second-degree DWI test refusal, the

state was required to prove beyond a reasonable doubt that Martinez had “a qualified

impaired driving incident” within ten years of his refusal. See Minn. Stat. §§ 169A.25,

subd. 1(b) (“A person who violates section 169A.20, subdivision 2 . . . , is guilty of second-

degree driving while impaired if one aggravating factor was present when the violation was

committed.”) .03, subd. 3(1) (“‘Aggravating factor’ includes . . . a qualified prior impaired

driving incident within the ten years immediately preceding the current offense.”) (2020).

And the only trial evidence that Martinez had a qualified impaired driving incident was

exhibit 5—the summary. There is a reasonable likelihood that the admission of the

summary into evidence substantially affected the verdict. See Matthews, 

.

       Because the admission of the summary into evidence was plain error that affected

Martinez’s substantial rights, Martinez has satisfied the first three elements of our plain-

error standard of review. But before we address the error, we must determine whether

doing so will “ensure fairness and the integrity of the judicial proceedings.” State v.

Portillo, 

, 255 (Minn. 2023) (quotation omitted).

       “‘[W]hen there is a reasonable likelihood that but for the . . . error,’ the result would

be different,” affirming a conviction would “adversely affect the public’s confidence in the


                                              10
fairness and integrity of judicial proceedings.” 

 at 256 (quoting State v. Little, 

 (Minn. 2014)). Here, without the summary of Martinez’s convictions,

the state would not have been able to satisfy an element of second-degree DWI test refusal.

But for the error, the result of Martinez’s trial would have been different. We therefore

conclude that reversing Martinez’s conviction and remanding for a new trial will “ensure

fairness and the integrity of the judicial proceedings.” Id. at 255.

       Because we reverse and remand on the ground that the admission of the summary

violated Martinez’s right to confrontation, we decline to address the second issue that

Martinez raises on appeal—whether the district court provided an erroneous jury

instruction for DWI test refusal where Martinez allegedly refused to comply with a search

warrant for his blood or urine. However, should the jury instruction issue recur on remand,

we direct the parties and the district court to our recent decision in State v. Torrez, ___

N.W.2d ___ (Minn. App. June 10, 2024).

       Reversed and remanded.




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