This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Kenneth William Larson,
St. Louis County District Court
File No. K800101865
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Alan L. Mitchell, St. Louis County Attorney, Steven C. Cundy, Assistant County Attorney, 300 South Fifth Avenue, Room 222, Virginia, MN 55792 (for respondent)
John M. Stuart, State Public Defender, Charles F. Clippert, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
Appellant Kenneth William Larson challenges convictions for fourth-degree assault, obstructing legal process, and violating an order for protection. He argues that the trial court erred in answering a question from the jury while appellant was absent from the courtroom and that the court’s answer improperly diluted the state’s burden of proof. Because we find the trial court’s error to be harmless, we affirm appellant’s convictions. We reverse a sentence that constituted improper multiple sentencing.
At approximately 2:00 a.m. on November 26, 2000, police officers Parenteau and Stromberg responded to a 911 call concerning appellant’s violation of a September 2000 order aimed at protecting his longtime girlfriend, Deborah Valla. Although, in spite order for protection, Valla and appellant began living together in October 2000, she wanted appellant to leave, and she called the police when he refused.
Failing to find appellant when they arrived, the officers searched for him in the basement of the house and found him at the top of a second flight of stairs from the basement. After being ordered several times to come down the stairs, appellant complied. Officer Stromberg told appellant that he was under arrest, and after a struggle with the officers, he was finally subdued.
The matter was eventually brought to trial. During jury deliberations, a question arose, and without notifying any of the parties, the judge brought the jury into the courtroom to answer their questions. The jury asked: “Does a police officer have to verbally ID themselves? If it is determined by the jury that the Peace Officers did not, is the verdict not guilty?” The court’s response included these comments:
If you find that each of these elements have been proved beyond a reasonable doubt, the defendant is guilty. If you find that any element hasn’t been proved – elements – go to say what are the elements of the crime.
The elements are: First, that the defendant physically assaulted Lt. Michael Parenteau. You have to find out from the facts did that happen or didn’t it. Second, Lt. Parenteau was a licensed peace officer at the time. You have to find was he or wasn’t he. Third, the assault occurred while he was effecting an arrest or executing another duty imposed by law. Was he or wasn’t he. Fourth, did it take place on this date. If you find those things, he’s guilty. If you don’t find those things, he’s not guilty.
The court then went on to describe the charge of obstructing legal process with force, reading from the language of the statute, Minn. Stat. § 609.50, subd. 1(2) (2000), and continuing with these words:
The elements of obstructing legal process are: First, Lt. Parenteau and Officer Stromberg were peace officers engaged in the performance of official duties. You have to answer that question. Were they peace officers, were they in official duties; yes or no. Second, did defendant obstructed, resisted or interfered with the officers in the performance of official duties. You have to answer that question; yes or no. Beyond a reasonable doubt did he do it or didn’t he. Third, the defendant acted with the intention of obstructing, hindering, or preventing or interfering with Lt. Parenteau and Officer Stromberg. You have to answer that question. Is the evidence that they did beyond a reasonable doubt or that they didn’t. That is the question you have to ask.
* * * *.
If you find that each of these elements has been proved beyond a reasonable doubt, defendant is guilty. If you find that any element has not been proved beyond a reasonable doubt, the defendant is not guilty. * * *.
The jury convicted appellant on the three stated charges. He was sentenced to concurrent one-year jail terms for obstructing legal process and fourth-degree assault and a consecutive 120-day jail term for violating an order for protection. He appeals.
Appellant argues that the trial court erroneously denied him the right to be present at a critical stage of his trial. The confrontation clause in the Sixth Amendment to the U.S. Constitution grants a defendant the right to be present at all stages of trial. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 2667 (1987). Similarly, the Minnesota rules of criminal procedure require that a defendant be present at “every stage of the trial.” Minn. R. Crim. P. 26.03, subd. 1(1) (emphasis added). The right to be present under this rule is broader than the right guaranteed by the U.S. Constitution and constitutes a personal right that can be waived only by the defendant. State v. Ware, 498 N.W.2d 454, 457 (Minn. 1993). With respect to jury deliberations, the Minnesota Supreme Court has held that
[a] trial court commits error when it engages in substantive communications with a deliberating jury outside of open court, without the defendant’s knowledge, consent or presence, and without the presence of defendant’s counsel and the prosecutor.
State v. Sessions, 621 N.W.2d 751, 752 (Minn. 2001).
Here, the court's response to the jury in the absence of counsel, appellant, or a waiver by appellant, clearly violated his Sixth Amendment right to be present and was in violation of Rule 26.03, subd. 1(1). Sessions, 621 N.W.2d at 756. But even where a defendant is wrongfully denied the right to be present at every stage of his trial, a new trial is warranted only if the error was not harmless. State v. Schifsky, 243 Minn. 533, 542, 69 N.W.2d 89, 95 (1955). “If the verdict [is] surely unattributable to the error, the error is harmless beyond a reasonable doubt.” Sessions, 621 N.W.2d. at 756 (citation omitted).
“When considering whether the erroneous exclusion of a defendant from judge-jury communications constitutes harmless error,” the reviewing court considers the strength of the evidence and the substance of the judge's response. Id. (citations omitted).
The record unequivocally reveals that an order for protection was in force at the time of appellant’s arrest. The jury could readily find beyond a reasonable doubt that appellant violated that order. Additionally, the testimony of both arresting officers indicated that appellant resisted arrest and struck out at Officer Parenteau. Although the testimony of Valla and appellant differed somewhat from that of the officers, the jury had the opportunity to hear testimony from all four witnesses and make a determination as to the facts. The task of weighing credibility of the witnesses is for the trier of fact. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Our review of the record reveals that the state had strong evidence supporting the charges against appellant.
With respect to the judge’s responses to the jury’s questions, appellant argues that the court’s instruction diluted the state’s requirement to prove their case beyond a reasonable doubt. It is reversible error to provide the jury with an instruction that dilutes or obscures the state’s burden of proof. State v. Tibbetts, 281 N.W.2d 499, 500 (Minn. 1979). Appellant argues that by instructing the jury that they had to answer whether an element had been proven “yes or no,” rather than whether the state proved the element beyond a reasonable doubt, the instruction diluted the state’s burden of proving their case beyond a reasonable doubt.
Appellant views the communication from an overly narrow point of view. The judge, in fact, reminded the jury several times that each of the elements had to be proven beyond a reasonable doubt. The instruction here can readily be distinguished from the instruction that prompted a reversal in Tibbetts.
In Tibbetts, the defendant was convicted of criminal sexual conduct. Id. at 499. The judge’s charge to the jury included the following:
* * * [i]f you are satisfied beyond a reasonable doubt * * * first, that the defendant intentionally touched [the victim’s] buttocks, * * * and secondly, that the touching could reasonably be construed as being for the purpose of satisfying the defendant’s sexual impulses, * * * then you should find him guilty of the crime charged * * *.
Id. at 500 (emphasis added). The supreme court held that the judge’s instruction impermissibly shifted the degree of proof from acts that must be proved beyond a reasonable doubt to acts that could reasonably be construed to be for an improper purpose. Id. at 500.
In this case, the substance of the judge’s communication is markedly different. The judge repeatedly stated that appellant’s guilt must be proven beyond a reasonable doubt with respect to each element of the crimes charged. The substance of the judge’s communication to the jury as a whole was not prejudicial to appellant nor preferential to the prosecution. See State v. Dunkel, 466 N.W.2d 425, 425 (Minn. App. 1991) (holding that jury instructions read as a whole did not improperly dilute the “beyond a reasonable doubt” burden of proof standard).
In sum, because the state’s evidence was strong and the substance of the judge’s instruction was not prejudicial to appellant, we conclude that the verdict was “surely unattributable” to the error, and the error is harmless beyond a reasonable doubt.
Appellant also challenges the trial court’s decision to order concurrent sentences on his convictions for obstruction of legal process and fourth-degree assault, observing that the offenses arose from the same behavioral incident. The state concedes this issue.
Ordinarily, if conduct constitutes more than one criminal offense, the defendant may be punished for only one of the offenses. Minn. Stat. 609.035, subd. 1 (2000); State v. Montalvo, 324 N.W.2d 650, 652 (Minn. 1982). Although the statute lists some exceptions, appellant’s conduct does not fall within any of the statutory exceptions. The factors for a reviewing court to consider in determining whether multiple offenses constitute a single behavioral act for sentencing purposes are time, place, and whether the offenses were motivated by a desire to obtain a singular criminal objective. State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997). The determination requires an examination of all the facts and circumstances. Id.
In this case, the testimony of both arresting officers establishes that appellant’s forceful obstruction of legal process and the assault of Officer Parenteau occurred at the same time and place. Appellant’s criminal objective was singular: to avoid arrest. See State v. Jeter, 558 N.W.2d 505, 507 (Minn. App. 1997). Accordingly, because we conclude that the trial court erred in sentencing appellant to two concurrent sentences, and we reverse and vacate appellant’s sentence for fourth-degree assault.
Affirmed in part, reversed in part.
 Officer Parenteau testified that he did not identify himself as an officer prior to apprehending Larson. In contrast, Officer Stromberg testified that Parenteau did announce his presence.