This opinion will be unpublished and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

CX-00-1693

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jamie Lee Hokkanen,

Appellant.

 

 

Filed July 31, 2001

Affirmed in part, vacated in part

Lansing, Judge

 

Faribault County District Court

File No. KX99418

 

 

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

 

Brian Roverud, Faribault County Attorney, 125 North Main, P.O. Box 5, Blue Earth, MN  56013 (for respondent)

 

John Stuart, Minnesota State Public Defender, Marie Wolf, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55141 (for appellant)

 

            Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Shumaker, Judge.


U N P U B L I S H E D  O P I N I O N

LANSING, Judge

On appeal from conviction and sentencing on theft and criminal damage to property, Jamie Hokkanen contends that the evidence was insufficient to support her convictions and that the convictions were part of the same behavioral incident requiring a single sentence.  In a pro se brief, Hokkanen also claims that she received ineffective assistance of counsel and that the district court erred on evidentiary rulings, setting bail, and computing the restitution amount.  We affirm Hokkanen’s convictions but vacate her sentence for theft because it is part of the same behavioral incident as the criminal damage to property.

F A C T S

            Jamie Hokkanen’s criminal charges grew out of an antagonistic landlord-tenant relationship.  Hokkanen and her husband rented Dwayne Browen’s house from December 1998, to August 1999.  When the Hokkanens moved in, the house was in good condition and was fully equipped with bathroom fixtures, door hardware, wall outlets, ceiling light fixtures, and several ceiling fans. 

In the spring of 1999, Browen was assaulted on the property and did not return.  The Hokkanens obtained a temporary order for protection that enjoined Browen from entering and inspecting his property, but the order was vacated when the Hokkanens failed to appear at the contested hearing.  These actions, coupled with the Hokkanens’ failure to pay rent, formed the basis for Browen’s unlawful detainer action against them.  A district court order required the Hokkanens to move out of Browen’s house by August 6, 1999.

            In response to a neighbor’s telephone call, Browen returned to the house on August 8, 1999.  The neighbor testified that the inside of the house was a “total disaster.”  When Browen and the neighbor entered the house, they saw food smeared on the walls and garbage thrown on the floor of every room. 

In the kitchen, butter, oil, ketchup, mayonnaise, and other “products,” apparently thrown from open jars, streaked the walls, ceiling, and floor.  Garbage was thrown on the floor in the corner.  The ceiling light fixture, two mini-blinds, and the electrical outlet covers were gone.  In the dining room, ketchup had been thrown on the walls, ketchup and spoiled potatoes were thrown on the floor, the ceiling fixture had been cut down and removed, and the door handle, lock, and outlet covers were also gone. 

The sink faucets in the downstairs bathroom were gone, the bathtub faucets were broken, and trash was scattered on the bathroom floor.  The doorknob and toilet paper holder were gone, the thermostats had been removed and left lying on the floor, and some electrical outlets had been removed from the walls.  In the basement, three windows and the flue from the water heater to the main chimney had been broken. 

Ceiling fixtures were gone from the living room, from each of the four bedrooms, and from the upstairs hallway.  Electrical outlet covers were missing from the living room, three of the four bedrooms, and the upstairs hallway.  Mini-blinds were missing from all four bedrooms, the bathroom, and the porch.

Hokkanen denied that she had stolen Browen’s property, claiming that Browen authorized them to change ceiling light fixtures and that she took only items belonging to her.  Hokkanen also denied knowing about the damage to the inside of the house, claiming that she spent most of the day outside moving items from the shed and garage into the truck.  She admitted that she returned to the house in the evening to use the bathroom, but claimed it was too dark to see the condition of the house.

Several people who helped the Hokkanens move testified about the condition of the house on August 6th.  Two family members testified that they did not see anyone throwing food inside the house or taking items belonging to Browen, but each of them acknowledged that they were outside most of the day.  One friend testified that he observed the damage when he returned to the house after taking a break from moving for a few hours in the middle of the day.  When he entered the house he saw the food strewn on the walls and floors and that the light fixtures had been removed by cutting the wires at the ceiling.  He testified that the house had not been in this damaged condition before he left for the two- to three-hour period.  He also testified that Hokkanen was outside when he returned and said nothing about the damage inside the house.

The jury convicted Hokkanen of theft, criminal damage to property, aiding and abetting theft, and aiding and abetting criminal damage to property.  The district court stayed the imposition of sentence on one count each of theft and criminal damage to property, placing Hokkanen on probation for five years and further requiring her to serve 120 days in jail and pay restitution.  Hokkanen appeals from conviction and sentence.


D E C I S I O N

I

When evaluating the sufficiency of the evidence supporting a conviction, this court’s review is limited to whether a jury could reasonably have found the defendant guilty of the charged offense.  State v. Davidson, 481 N.W.2d 51, 58 (Minn. 1992).  If a conviction is based on circumstantial evidence, that evidence must form a complete chain that directly leads a rational trier of fact to conclude the defendant’s guilt and makes any other theory unreasonable.  State v. Gates, 615 N.W.2d 331, 337-38 (Minn. 2000).  On appeal, this court views the evidence in a light most favorable to the verdict and will affirm the conviction based on circumstantial evidence unless the defendant can show evidence within the record that supports a rational alternative theory that the defendant is not guilty.  Id.

 A person is liable for a crime committed by another “if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.”  Minn. Stat. § 609.05, subd. 1 (2000).  To impose liability for aiding and abetting, the state must show that the defendant played a knowing role in the commission of the crime. Gates, 615 N.W.2d at 337.  Although a defendant need not actively participate in the criminal act, the defendant's presence and conduct before and after an offense is committed are relevant factors that a jury may consider to infer criminal intent.  Id.

Hokkanen claims that the evidence presented was equally consistent with a rational theory other than guilt.  She claims that her husband committed the theft and damaged the property, and that she was unaware of his actions.  The jury rejected Hokkanen’s argument and also rejected her testimony attempting to exonerate herself from the theft and destruction.

The evidence is sufficient to support the jury verdict finding Hokkanen guilty of criminal damage to property or aiding and abetting criminal damage to property.  The jury could reasonably have found that Hokkanen’s claim of ignorance of the damage to the property was not credible in light of the extensive damage to the house and her presence in and around the house before, during and after the damage took place.

A person is guilty of theft if she intentionally takes another person’s property without consent and with intent not to return it to the owner.  Minn. Stat. § 609.52, subd. 2(1) (2000).  Hokkanen claims that she was not guilty of theft because she and her husband only took items that they owned.  Whether Browen or the Hokkanens owned the property was a question for the jury.  The evidence supports Browen’s testimony that the missing items belonged to him and had been part of the house before the Hokkanens removed it.  The evidence is sufficient to support the conviction.

II

Hokkanen also argues that the theft and criminal damage convictions were part of the same behavioral incident and that she cannot, therefore, receive a sentence for both convictions.  “[I]f a person’s conduct constitutes more than one offense under the laws of this  state,  the person  may  be  punished for only one of the offenses. * * * ”  Minn. Stat. § 609.035, subd. 1 (2000).  Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of the particular case.  State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995).  In determining whether two convictions arose from a single behavioral incident, this court must examine the offenses to see whether they were motivated by a desire to obtain a single criminal objective.  State v. Soto, 562 N.W.2d 299, 303 (Minn. 1997).  Additional factors to consider include determining “the unity of time and of place of the behavior.”  Bookwalter, 541 N.W.2d at 294 (quotation omitted).

The state argues that this court should not, as a threshold matter, review this issue because Hokkanen failed to object at sentencing.  The protection against double punishment cannot be waived, however, and therefore Hokkanen’s claim is reviewable.  State v. Mendoza, 297 N.W.2d 286, 288 (Minn. 1980).

The state argues that the crimes were motivated by separate criminal objectives: the criminal damage by vengeance and the theft by greed.  We disagree.  The separate crimes in this case evidently were motivated by a single criminal objective; namely, to get even with Browen by damaging his home.   See, e.g., State v. Mullen, 577 N.W.2d 505, 511 (Minn. 1998) (concluding that criminal damage to property and a pattern of harassing conduct constituted a single behavioral incident because telephone calls and breaking of window occurred near the same time and were motivated by continuous intent to harass victim).  Indeed, Browen testified that he found pieces of some of the light fixtures in the bushes outside, thus indicating a further connection between the theft and the damage to property.  The evidence also indicates that the criminal acts occurred at the same time and place.  Because the offenses were part of the same behavioral conduct, we vacate the sentence, but not the conviction, for theft.

III

In her pro se appeal, Hokkanen first argues that her trial counsel was ineffective by failing to properly prepare her for her defense, failing to object to testimony offered by the state, refusing to introduce certain evidence at trial, and making improper statements to the jury during closing arguments. 

A defendant claiming ineffective assistance of counsel must show by a preponderance of the evidence that his counsel's representation “‘fell below an objective standard of reasonableness’” and that counsel's error so prejudiced defendant’s trial that, but for the error, there would have been a different outcome.  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2068 (1984)).  In general, however, this court does not pass judgment on defense counsel's trial tactics.  State v. Ronquist, 578 N.W.2d 4, 7 (Minn. App. 1998), aff’d, 600 N.W.2d 244 (Minn. 1999). 

Counsel’s choice of which witnesses to call and what evidence to present are matters of trial strategy, and therefore rest within trial counsel’s discretion.  Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991).  But the supreme court has stated that insufficient preparation for trial may be grounds for finding ineffective assistance of counsel.  In Re Welfare of  T.D.F., 258 N.W.2d 774, 775 (Minn. 1977).

We find nothing in the record to support Hokkanen’s claim that defense counsel failed to prepare her for trial or made improper statements during closing argument.  And, because defense counsel’s decisions on witnesses and evidence were part of a strategic decision within his discretion, his conduct was within the standards of reasonable competence.

IV

Hokkanen next claims that the district court erred by denying evidence from the eviction case, allowing hearsay evidence, allowing testimony about the threat on her son’s and dog’s lives, and denying her request for a continuance.  The district court has substantial discretion in ruling on evidentiary matters, which this court will not reverse absent a prejudicial abuse of that discretion.  State v. Bauer, 598 N.W.2d 352, 362 (Minn. 1999).  Nothing in the record supports Hokkanen’s general and legally unsupported claim that the district court abused its discretion on any evidentiary rulings.

V

Hokkanen further argues that the district court erred in awarding a restitution amount higher than that requested by Browen.  The district court has discretion in ordering restitution, so long as the restitution is directly related to the criminal conduct.  State v. Tenerelli, 598 N.W.2d 668, 671-72 (Minn. 1999), cert. denied, 528 U.S. 1165, 120 S. Ct. 1183 (2000).  The goal of restitution is either the defendant’s rehabilitation or compensation to the victim.  State v. Harwell, 515 N.W.2d 105, 110 (Minn. App. 1994), review denied (Minn. June 15, 1994).  Restitution is “primarily intended to compensate victims.”  State v. Pflepsen, 590 N.W.2d 759, 768 (Minn. 1999) (quotation omitted).

The district court heard evidence from Hokkanen and Browen on the value and condition of the items in the house that were missing or damaged.  The district court found that Browen established by a preponderance of the evidence his loss in personal and real property and consequently ordered Hokkanen to pay in restitution the amount of real property damages not covered by Browen’s insurance plus the amount it would cost him to replace the damaged or missing personal property.  We find no abuse in the district court’s discretion in setting the restitution amount.

VI

Finally, Hokkanen’s claim that the district court imposed excessive bail at $5,000 is moot.  See State v. Arens, 586 N.W.2d 131, 133 (Minn. 1998) (stating that absent extraordinary circumstances, challenge to the amount of defendant’s pretrial bail is moot after conviction).

Affirmed in part, vacated in part.