This opinion will be unpublished and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

C9-00-2088

 

 

State of Minnesota,

Respondent,

 

vs.

 

Derrick Leon Hood,

Appellant.

 

Filed September 18, 2001

Affirmed

Lansing, Judge

 

Washington County District Court

File No. K6-99-6412

 

 

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

 

Doug Johnson, Washington County Attorney, John W. Fristik, Assistant County Attorney, Washington County Courthouse, 14949 62nd Street North, Stillwater, MN 55082 (for respondent)

 

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

 

Considered and decided by Lansing, Presiding Judge, Harten, Judge, and

 

Willis, Judge.


U N P U B L I S H E D   O P I N I O N

 

LANSING, Judge                                     

A jury convicted Derrick Hood of two counts of aiding and abetting the offering of a forged check in violation of Minn. Stat. §§ 609.631, subd. 3, and 609.05 (1998).  On appeal Hood challenges the court's denial of his mistrial motion, failure to instruct the jury on accomplice testimony, and sentencing.  Because the district court did not abuse its discretion in denying Hood’s mistrial motion or in sentencing him under the career-offender statute and because we find no reversible jury-instruction error, we affirm.

F A C T S

            Larry Martin was arrested while attempting to cash a forged money order at the Pioneer Credit Union in Oakdale on September 10, 1999.  The day before, Martin had successfully cashed a forged money order at the same credit union.  In response to police questioning, Martin stated that his neighbor, Derrick Hood, had forged both money orders and asked Martin to cash them.  Following an investigation, Washington County charged Hood with two counts of aiding and abetting the offering of a forged check.

Martin testified at Hood’s trial that Hood drove Martin to the credit union to cash a money order on September 8.  After Martin successfully cashed the first money order, the two shared the proceeds.  Two days later, Hood again drove Martin to the credit union to cash a money order.  This time, however, Martin was unable to cash the forged money order because the credit-union teller suspected the money order was forged and stalled Martin until the police arrived.

            An employee of First Data Corporation, the company that processes Western Union money orders, and the credit-union teller also testified at Hood’s trial.  The teller testified that Martin cashed the first money order on September 8 and attempted to cash the second on September 10.  The First Data Corporation employee testified to the process used to alter the money orders and further testified that the money orders were both purchased at Rainbow Foods in Cottage Grove for $1.75 and $2.00 on September 10.  This testimony conflicted with Martin's and the teller’s earlier testimony that Martin presented the first money order on September 8. 

Before trial began the next day, the state requested that it be allowed to recall both witnesses and also allowed to call an additional witness to present newly discovered evidence to clear up the testimonial discrepancy on the dates.  The defense objected, and in response, the district court continued the trial until the following day so that Hood’s attorney could interview both the new witness and the witnesses who were being recalled. 

The following day, the state recalled the First Data Corporation employee who testified that, although he had previously stated that the money orders were purchased on September 10, he had discovered a Rainbow Foods report that showed he was mistaken and that the money orders were actually purchased on September 9 at 2:18 p.m. and 5:48 p.m.  The state then recalled the credit-union teller who stated that his earlier testimony was incorrect, that the first money order was not presented on September 8, but actually presented at 4:55 p.m. on September 9, 1999.  The new witness, a Rainbow Foods bookkeeper, testified to the authenticity of the report that showed both money orders were purchased on September 9.

Following the testimony, the defense moved for a mistrial on the grounds that the prosecution had violated its discovery obligations by failing to disclose the content of the witnesses’ proposed testimony.  The district court denied the motion. 

The jury found Hood guilty of two counts of aiding and abetting the offering of a forged check and the district court imposed a 36-month sentence, designating Hood as a career offender under Minn. Stat. § 609.1095, subd. 4 (1998).  Hood appeals (1) the denial of his mistrial motion, (2) the failure to instruct the jury on accomplice testimony, and (3) his sentencing as a career offender.

D E C I S I O N

I

            A prosecuting attorney must provide defense counsel with the substance of any oral statements that relate to the case.  Minn. R. Crim. P. 9.01, subd. 1(2).  Hood contends that the prosecution violated Rule 9.01 by failing to disclose the content of the prosecutor’s conversations with witnesses and the recalled witnesses’ testimony.  The state concedes a technical violation of Rule 9.01 but argues that the district court did not abuse its discretion in denying a mistrial because the violation was inadvertent and nonprejudicial.  We review the denial of a mistrial motion under an abuse-of-discretion standard.  State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998). 

When ruling on a motion for a mistrial based on a discovery violation, the district court must consider the reason the disclosure was not provided, the extent of the prejudice resulting from the nondisclosure, and the feasibility of rectifying any prejudice by a continuance.  Id. at 53.

The district court did not abuse its discretion in denying Hood’s mistrial motion.  First, the court recognized that the prosecutor was surprised by the witnesses’ testimony, and, because the inconsistent testimony was unexpected, the court perceived no “intentional or flagrant” violation of the discovery rules.  The record supports the district court’s conclusion that the discovery violations were likely attributable to lack of adequate trial preparation and not an intentional or deliberate failure to disclose portions of witness conversations and testimony content.  See State v. Patterson, 587 N.W.2d 45, 50-51 (Minn. 1998) (excluding evidence from undisclosed witness within district court's discretion when failure to disclose was willful or calculated).

Second, to remedy any prejudice caused to Hood’s defense, the district court continued the trial to allow defense counsel to interview the new and recalled witnesses.  Hood argues that the continuance did not rectify the prejudice caused by the state’s failure to disclose that the recalled witnesses would testify about the short time period necessary to alter a money order.  The district court admonished the prosecution that they must adhere to the better practice of specifically disclosing the content of witness testimony but concluded that Hood’s case was not prejudiced by the failure to disclose that the witness would testify about the time necessary to alter a money order.  We agree. 

The prosecution disclosed the newly discovered Rainbow Foods report showing that the money orders were purchased on September 9 at 2:18 p.m. and 5:48 p.m.  During the continuance, defense counsel interviewed the witness that was to testify that Martin presented the first money order to the credit union on the same date, September 9, at 4:55 p.m.  Hood’s attorney competently cross-examined both the recalled witnesses and the new witness.  We see no reasonable probability that the trial outcome would have been different had the evidence been more promptly or completely disclosed.  See State v. Clobes, 422 N.W.2d 252, 255 (Minn. 1988) (deciding that trial outcome would not have differed had evidence of witness’s illegal drug usage been disclosed).

II

            Next, Hood argues that the district court erred in failing to instruct the jury that under Minnesota law, an accused cannot be convicted based on an accomplice’s uncorroborated testimony.  See Minn. Stat. § 634.04 (2000); 10 Minnesota Practice, CRIMJIG 3.18 (1999).  This instruction must be given in any criminal case in which any witness against the defendant might reasonably be considered the defendant’s accomplice in the crime.  State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989).  

Generally, the defendant must either request an accomplice instruction or object to the lack of one to preserve the issue for appeal.  Id.  But the district court is charged with giving the instruction in an appropriate case whether or not it was requested.  Id.  Hood did not ask for the instruction, and the district court did not give it.  It is undisputed that Martin was Hood’s accomplice.  See State v. Landro, 504 N.W.2d 741, 745 (Minn. 1993) (defining an accomplice as a person who could have been indicted and convicted of the same crime as the accused).  Thus, the district court erred in failing to give the instruction.  But a new trial is warranted only if the error is prejudicial.  Shoop, 441 N.W.2d at 480.  The error is prejudicial if the accomplice testimony is without corroborating evidence.  Id. at 480-81.

Corroborating evidence must link the defendant to the crime, but it need not establish a prima facie case of defendant’s guilt.  State v. Williams, 418 N.W.2d 163, 166 (Minn. 1988).  Although corroborating evidence may be direct or circumstantial, State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980), circumstantial evidence must relate the person to the crime, and not simply show the crime occurred.  See Minn.Stat.§  634.04.

The record contains ample evidence to corroborate Martin’s testimony that Hood forged the money orders and then gave them to Martin to cash.  With a valid search warrant, police searched Hood’s apartment, discovering two money orders made payable to Larry Martin and altered in the same way as the money orders Martin presented to the credit union.  Police also found a typewriter that they later determined was used to create the fraudulent money orders.  In addition, Hood’s apartment-complex manager testified that when she was cleaning Hood's apartment after he moved out in November 1999, she found three more $500 money orders on top of a cupboard.  Finally, a police officer testified that the credit union’s security videotape recorded Hood standing at the teller window next to Martin on September 9 at about 4:50 p.m. when Martin cashed the first money order, and another police officer testified that he saw Hood outside the Pioneer Credit Union on September 10, just after Martin attempted to cash the second money order.  The failure to give an instruction on accomplice testimony did not prejudice Hood.  

III

The district court found that Hood was a career offender under Minn. Stat. § 609.1095, subd. 4 (1998), and increased his sentence from the presumptive 24 months to 36 months.  The career-offender statute allows the district court to sentence a defendant up to the statutory maximum “if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.”  Minn. Stat. § 609.1095, subd. 4.

Sentencing under the career-offender statute is a departure from the sentencing guidelines.  Id.  The decision to depart from sentencing guidelines is discretionary and unless the district court abuses its discretion, the sentence will stand.  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).

The district court found that the upward durational departure was justified by Hood’s nine criminal history points, 11 prior felony convictions, and repeated convictions of forgery, theft, and similar crimes before being convicted of the present felony conviction.  The record supports the departure.

Hood argues that the increased sentence violates his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000), because the district court, rather than the jury, found that Hood’s offense is part of a pattern of criminal conduct.  In Apprendi, the Supreme Court held that other than prior convictions, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  Id. at 490, 120 S. Ct. at 2362-63 (emphasis added).  Apprendi does not apply to this case because the district court sentenced Hood to 36 months, within the statutory maximum of 5 years for forged checks with an aggregate face value exceeding $250.00.  See Minn. Stat. § 609.631, subd. 4(3)(a) (Supp. 1999).

Hood filed a pro se brief in which he argues that police officers have harassed both him and his family and that his trial attorney treated him unfairly and disrespectfully during the trial.  We have carefully considered the pro se brief and conclude that because it is factually and legally unsupported, it provides no basis for relief.

Affirmed.