This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-1276

 

 

State of Minnesota,

Respondent,

 

vs.

 

Keith E. Berg,

Appellant.

 

 

Filed June 15, 2001

Affirmed

Schumacher, Judge

 

Hennepin County District Court

File No. 11279

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Ann B. McCaughan, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.


U N P U B L I S H E D   O P I N I O N

SCHUMACHER, ROBERT H., Judge

            Appellant Keith E. Berg challenges his conviction of burglary in the first degree, claiming that (1) he was denied his constitutional right to a speedy trial; (2) the evidence adduced at trial did not support the factual allegations in the criminal complaint; (3) the evidence adduced at trial was insufficient to support the conviction; (4) the jury's verdict was not properly read into the record; (5) he is entitled to a new trial because of the prosecutor's improper remarks; (6) he was denied his constitutional right to the effective assistance of counsel; and (7) he should have been granted a downward departure of his sentence.  We affirm. 

FACTS

On the evening of January 28, 2000, Berg reported to his job as a cook in a Minneapolis restaurant.  Soon thereafter, Donna Fletcher, Berg's girlfriend, entered the restaurant.  Berg's shift ended late that evening and he discovered that Fletcher had left the restaurant.  Berg correctly suspected that Fletcher had left the restaurant with Jeffrey Olson.  Berg telephoned Olson's home several times.  He also called the police, asking them to drive by Olson's home to check on Fletcher.  The next morning, Berg went to Olson's home, entered the building, and was leaving with Fletcher when police apprehended and arrested him. 

Berg was charged with burglary in the second degree.  The complaint was later amended to add the additional charge of burglary in the first degree.  The complaint asserted that Berg entered Olson's home through a window and assaulted him.

            On March 1, 2000, Berg first asserted his right to a speedy trial.  Trial was originally scheduled for April 12, but the trial date was subsequently changed to May 1.  Berg's attorney was ill on May 1 and so the trial was continued until the next day, May 2.  On the afternoon of May 2, the prosecutor informed the court that the state would be unable to produce the state's witnesses until the following day.  Jury selection took place on May 3, testimony was heard on May 4, and the jury returned its verdict on May 5.

            At trial, the state presented the testimony of Olson, as well as Olson's roommate, Daniel Sheridan.  Sheridan testified that on the evening of January 28, he and his girlfriend stopped by the restaurant where Berg worked.  There, Sheridan found Olson and Fletcher, and the group decided to go out dancing.  Later, the group returned to Olson's home and found that the home had been vandalized.  Fletcher spent the night upstairs while Sheridan fell asleep on the couch downstairs.  Sheridan testified that in the morning, he awoke to the sound of glass breaking and immediately discovered that Berg had entered the home.  Sheridan was unsure how Berg had entered but testified that he had not given Berg permission to enter the home.  According to Sheridan, Berg grabbed him, threw him over the couch, and attempted to strike him. 

            Olson gave a similar account of the events occurring during the evening of January 28.  Olson related that the next morning, he awoke to the sound of breaking glass and "thumping" noises downstairs.  Olson went downstairs and discovered that Berg had pinned Sheridan to the floor and appeared to be punching him.  Olson then struck Berg twice on the head with a wooden rod.  Olson testified that Berg recovered from the blows, found Fletcher, and was dragging her out of the house when the police arrived.

            Berg testified at trial, but gave a different version of the events.  Berg testified that he went to Olson's home that morning because he was concerned for Fletcher's safety.  Berg stated that when he arrived at Olson's home, he looked through a window and saw that someone was sleeping on the couch.   Berg testified that he started "pounding" on the window in an attempt to get the attention of the occupants, and this is what caused the window to shatter.  Berg testified that Sheridan awoke, allowed Berg to enter the home through the front door, but then became irate.  Berg testified that Sheridan tried to strike him with a telephone.  Olson then struck Berg.  Finally, according to Berg, Fletcher came down the stairs, was willing to leave with Berg, and was leaving the premises when the police arrived. 

            On cross-examination, the prosecutor had the following exchange with Berg:

Prosecutor:                Okay.  It's quite coincidental, isn't it, Mr. Berg, that Mr. Olson had a break-in sometime between—well, sometime after they left the house that night and they came home from going out dancing, they had a break-in of someone who came in the house and did some damage in their house.  That's quite coincidental, isn't it?

 

Defense Counsel:      Your Honor, the objection will be argumentative.

 

Judge:                         Sustained.

 

Prosecutor:                Do you think it's unusual that once you worried where Donna was and had in your mind she was in trouble, that before you arrived in the morning that house was broken into?

 

* * * *

 

Defense Counsel:      Objection. * * * *  It's argumentative and it calls for speculation.

 

Judge:                         Sustained.

 

Also, during her opening statement and again during her final argument, the prosecutor made reference to the January 28 break-in, although she did not directly accuse Berg of committing the break-in. 

            The jury found Berg guilty of burglary in the first degree.  He was sentenced to 108 months in prison. 

D E C I S I O N

1.         Berg claims that he was denied his right to a speedy trial because his trial began 62 days after he voiced his demand for a speedy trial.  In felony and gross misdemeanor cases, a

defendant shall be tried as soon as possible after entry of a plea other than guilty.  On demand made in writing or orally on the record by the prosecuting attorney or the defendant, the trial shall be commenced within sixty (60) days from the date of the demand unless good cause is shown upon the prosecuting attorney's or the defendant's motion or upon the court's initiative why the defendant should not be brought to trial within that period.

 

Minn. R. Crim. P. 11.10. 

In determining whether a delay has deprived a defendant of his right to a speedy trial, courts balance four factors: (1) the length of delay; (2) the reason for delay; (3) the defendant's assertion of his right; and (4) the resulting prejudice to the defendant.  Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972).

The length of the delay is the "triggering mechanism" that determines whether further review is necessary.  Id.  That is, a court continues with the balancing test only if the length of the delay is "presumptively prejudicial."  Id.  When the state fails to bring the defendant to trial within the 60-day period, the delay is presumptively prejudicial, and thus a court examines the remaining three factors in the balancing test.  See State v. Friberg, 435 N.W.2d 509, 513 (Minn. 1989).  Here, the 60-day period elapsed on May 1.  The case went to trial on May 3.  Thus, it is appropriate to examine the remaining Barker factors in reference to the two-day delay.

The reason for the delay from May 1 to May 2 was that Berg's counsel was ill.  The stated reason for the one-day delay from the afternoon of May 2 to the morning of May 3 was unavailability of witnesses.  Generally, so long as the prosecutor is diligent in attempting to locate witnesses, the unavailability of witnesses for the prosecution constitutes a valid reason for delay.  See State v. Terry, 295 N.W.2d 95, 96 (Minn. 1980).  Here, there is no evidence that the state was not diligent in locating witnesses.  Because half the delay was attributable to Berg's own counsel and half to the state's valid excuse, this factor weighs in favor of the state.

            The record shows that Berg orally asserted his right to a speedy trial on March 1, 2000.  This factor weighs in favor of Berg.

In Terry, the delay in bringing the defendant to trial was caused by the state's inability to locate a key prosecution witness.  295 N.W.2d at 96.  The supreme court held that a delay did not cause prejudice to the defendant, as the delay was neither lengthy nor prejudicial to the defendant's rights.  Id.  Similarly, in this case, there was a mere one-day delay between the time that Berg's counsel was ready to proceed with trial and the time that the prosecutor was able to contact the state's witnesses.  There is no showing that this brief delay was prejudicial to Berg.

Because the delay in this case was very brief and there was no showing that the delay prejudiced Berg's case, Berg's constitutional right to a speedy trial was not violated.

2.         Berg claims that he was entitled to acquittal because the complaint specified that Berg entered Olson's home and assaulted him when, in fact, there was no evidence of the assault.  Rather, the state's evidence tended to show that Berg assaulted Sheridan in Olson's home on the date in question.

            A complaint may be amended to correct factual assertions that are not essential elements of the crime.  Ruberg v. State, 428 N.W.2d 488, 490 (Minn. App. 1988), review denied (Minn. Oct. 26, 1988).  The prosecutor could have moved to amend the complaint to conform to the evidence adduced at trial, which showed that Sheridan, rather than Olson, was assaulted.  See, e.g., Gerdes v. State, 319 N.W.2d 710, 712 (Minn. 1982) (permitting state to amend criminal complaint to reflect date of offense as adduced by the evidence at trial; amendment neither charged additional offense nor prejudiced defendant).

            Nevertheless, it does not necessarily follow that Berg was entitled to a judgment of acquittal.  The amended complaint charged Berg with burglary in the first degree, the elements of which include (1) entering a building without consent, and (2) assaulting "a person" within the building.  Minn. Stat. § 609.582, subd. 1(c) (2000).  Thus, as the district court noted, it was only necessary that the state show that Berg broke into Olson's home and assaulted someone therein, not necessarily the person named in the complaint.  In making its case, the state need not prove with precision every allegation contained in a complaint; rather, the state meets its burden so long as it proves the substance of the crime charged.  In re Hitzemann, 281 Minn. 275, 280, 161 N.W.2d 542, 545 (1968).  Here, although the evidence does not show that the person named in the complaint was the victim of an assault, the state met its burden by producing evidence to show that Berg committed an assault again Sheridan.

3.         Berg claims that the evidence adduced at trial was insufficient to sustain the guilty verdict.  In analyzing such claims, a reviewing court examines the evidence and any inference from it in a light most favorable to the verdict.  State v. DeWald, 463 N.W.2d 741, 748 (Minn. 1990).  The reviewing court assumes that the jury believed the state's witnesses and disbelieved testimony to the contrary.  State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980).  A reviewing court 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 charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Here, the state's witnesses testified that Berg entered Olson's home without consent and assaulted Sheridan.  Berg's testimony differed.  Viewing the evidence in the light most favorable to the verdict, and assuming that the jury believed the state's witnesses, we conclude that the evidence was sufficient to sustain the conviction.  See, e.g., State v. Gonzalez, 407 N.W.2d 472, 476 (Minn. App. 1987) (evidence sufficient to support conviction for the crime of first-degree burglary where jury was in best position to evaluate credibility of various witnesses), review denied (Minn. July 15, 1987).

4.         Berg claims that error resulted because the verdict was not read into the record.  To support this contention, Berg cites Minn. Stat. § 631.17 (2000), which states that "[w]hen a verdict * * * is returned, the court administrator shall immediately file it in open court and read it to the jury."  The record reflects that this is precisely what occurred.  Although the exact wording of the verdict was not transcribed in the record, the record reflects that the verdict was read to the jury.  There is no real dispute as to whether the verdict was read to the jury, nor is there a dispute as to whether the jury returned a verdict of guilty.  Berg does not cite any authority for the proposition that the exact wording of the verdict must be transcribed in the record.  We conclude that this claim is without merit.

5.         Berg claims that he is entitled to a new trial because of misconduct on the part of the prosecutor.

Whether a new trial should be granted because of misconduct of the prosecuting attorney is governed by no fixed rules but rests within the discretion of the trial judge, who is in the best position to appraise its effect.  The court's determination should be reversed on appeal only where the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant's right to a fair trial was denied.

 

Wahlberg, 296 N.W.2d at 420 (citation omitted). Even if prosecutorial misconduct is present, the defendant is not entitled to a new trial if the misconduct was harmless beyond a reasonable doubt.  State v. Ashby, 567 N.W.2d 21, 27-28 (Minn. 1997). "If the verdict actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt."  Id. at 28 (citations omitted).

A prosecutor is not permitted to cross-examine a criminal defendant about prior misconduct unless the prosecutor gives notice to the defendant and is able to produce evidentiary support that the misconduct occurred.  State v. Fallin, 540 N.W.2d 518, 522 (Minn. 1995).  Here, the prosecutor's question suggested that Berg had vandalized Olson's home the night before the charged crime.  Defense counsel objected immediately, and the objection was sustained.  The prosecutor's remarks in her opening statement and closing argument addressed the prior night's vandalism, but did not accuse Berg of committing those acts.  Moreover, because the prosecutor's question was isolated and properly disallowed by the court, we conclude that no prejudice occurred.

Berg also asserts that the prosecutor committed misconduct by vouching for the credibility of the state's witnesses, misstating the evidence, and belittling or denigrating Berg on cross-examination and in closing argument.  We have reviewed the record and find these claims to be without merit.

6.         In his pro se supplemental brief, Berg claims that he was denied the effective assistance of counsel because his attorney did not follow Berg's suggestion to introduce his jacket into evidence.  Berg claims that the lack of cuts in the jacket prove that Berg could not have come through Olson's window on the day in question.  An effective assistance of counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal.  State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000).  Hence, we decline to address this issue.

7.         In his pro se supplemental brief, Berg also claims that he should be granted a downward sentencing departure because several mitigating factors apply to his case. 

The decision whether to depart from sentencing guidelines rests within the discretion of the trial court and will not be disturbed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  A trial court may order a downward departure from the presumptive sentence only if "substantial and compelling" circumstances warrant such a downward departure.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  Only in a "rare case" would a sentencing court's refusal to depart warrant reversal.  Id.  Furthermore, the mere fact that a mitigating factor is present in a particular case does "not obligate the court to place defendant on probation or impose a shorter term than the presumptive term."  State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).  Here, it is not clear that any mitigating factors apply to Berg and, even assuming the existence of such factors, we do not find error in the trial court's imposition of the presumptive sentence.

Affirmed.