This opinion will be unpublished and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

C4-01-761

 

State of Minnesota,
Respondent,

vs.

Gary Lynn Underdahl,
Appellant.

 

 

Filed April 2, 2002

Affirmed in part, reversed in part, and remanded

Stoneburner, Judge

 

Polk County District Court

File No. KX00215

 

 

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

 

Wayne H. Swanson, Polk County Attorney, Polk County Courthouse, 612 North Broadway, Crookston, MN 56716 (for respondent)

 

John M. Stuart, Minnesota Public Defender, Steven P. Russett, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Anderson, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

Appellant Gary Underdahl challenges his convictions of three counts of perjury, three counts of first-degree witness tampering, and three counts of solicitation of juveniles to commit perjury.  Underdahl alleges that (1) he was denied his right to a speedy trial; (2) prosecutorial misconduct deprived him of a fair trial; (3) the district court erred by failing to instruct the jury that he could not be convicted on uncorroborated accomplice testimony; (4) the perjury convictions are not supported by the evidence; and (5) he was prejudiced by the jurors seeing him in handcuffs and by a witness calling him a name as the witness left the witness stand.  Underdahl also claims that the district court erred by failing to treat the perjury convictions as a single behavioral incident and by imposing consecutive 18-month sentences for two of the witness-tampering convictions.  We affirm the convictions, but, because the perjury convictions arose out of a single behavioral incident, we reverse the imposition of sentence for each perjury conviction and remand for resentencing.

FACTS

 

In February 1997 a jury found Underdahl guilty of first-degree burglary, kidnapping, second-degree assault, fifth-degree assault, third-degree criminal sexual conduct, felony harassment, and three counts of terroristic threats, all committed against his former girlfriend, who is also the mother of Underdahl’s three sons.  Underdahl testified at his 1997 trial and, under oath, denied certain allegations underlying the charges against him.  His three sons, R.B., J.B., and C.B., whose ages were 16, 14, and 12 at the time of the trial, testified on Underdahl’s behalf.  Beverly Peterson, who was Underdahl’s girlfriend at the time of the 1997 trial, also testified for Underdahl, corroborating his accounts of incidents and supplying his alibi evidence.  Underdahl was convicted and sentenced to 127 months in prison.  His convictions and sentence were affirmed on appeal.

In August 1997, R.B. told police that Underdahl forced him to commit perjury at the February 1997 trial.  In September 1997, J.B. and C.B. also told police that Underdahl coerced them into lying for him at the February 1997 trial.  As a result, on February 16, 2000, Underdahl was charged with nine counts of perjury in violation of Minn. Stat.        § 609.48, subd. 1(1); three counts of first-degree witness tampering in violation of Minn. Stat. § 609.498, subd. 1(b); twelve counts of solicitation of juveniles to commit perjury in violation of Minn. Stat. § 609.494, subd. 1; and twelve counts of aiding and abetting perjury.  The complaint was amended in December 2000 to charge three counts each of perjury, witness tampering, and solicitation of juveniles to commit perjury. 

Trial took place in January 2001.  All three sons now supported their mother’s version of the events that led up to the original charges and testified that Underdahl physically, verbally, and mentally abused them and their mother for years.  They testified that Underdahl told them what to say at his trial and once slapped J.B. when he could not get the story straight.  R.B. testified that Underdahl had physically abused him during rehearsal of his testimony.  Peterson testified that she witnessed Underdahl rehearsing the children’s testimony with them both before and during the trial.  Peterson also testified that she did not tell the complete truth during her own testimony in 1997.  Underdahl testified, reiterating his version of the events that led up to the previous convictions and denying that he told his sons what to say or that he ever abused his children or their mother.

The jury found Underdahl guilty of all charges.  The district court sentenced Underdahl to concurrent 54-month and 27-month prison terms for the perjury and solicitation counts; to a concurrent 54-month term for one of the witness-tampering counts; and to consecutive 18-month terms for the two remaining witness-tampering counts.  This appeal followed.

 

D E C I S I O N

 

Speedy trial

 

The federal and state constitutions entitle criminal defendants to a speedy trial.  U.S. Const. amend. VI; Minn. Const. art. I, § 6.  In Minnesota, a defendant must be tried within sixty days of demanding a trial unless good cause is shown for the delay.  Minn. R. Crim. P. 11.10.  The standard of review for a district court’s determination of violation of the right to speedy trial is abuse of discretion.  See State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989).

To determine whether a defendant’s right to a speedy trial has been violated, courts balance the length of delay; the reason for delay; whether defendant asserted the right; and whether there was any prejudice to the defendant.  Barker v. Wingo, 407 U.S. 514, 530-32, 92 S. Ct. 2182, 2192-93 (1972); State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999).  A single factor is not determinative.  Id.  The factors are related and must be considered together with such other circumstances as may be relevant.  Id.  We will disturb a district court’s determination that good cause for delay existed only on a showing of clear abuse of discretion.  McIntosh v. Davis, 441 N.W.2d 115, 119 (Minn. 1989).

Underdahl never moved for a dismissal based on a violation of his right to a speedy trial.  Respondent argues that Underdahl forfeited his right to have this court consider the issue because he failed to raise it below.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that issues not raised at trial, even issues of constitutional dimension, will generally not be considered on appeal).  Even if Underdahl did not waive his right to argue this issue, his argument fails on the merits. 

Length of delay and assertion of the right

In Minnesota, a delay of more than sixty days from the date of a demand for a speedy trial is presumptively prejudicial and requires further inquiry to determine whether there was good cause for the delay.  Friberg, 435 N.W.2d at 512.  Here, the length of delay depends on when the right to speedy trial was asserted.  On March 1, 2000, the day after he was served with the complaint in this matter, Underdahl wrote a letter to the court stating that he wanted to exercise his right to a speedy trial.  But, at his first appearance, on April 14, 2000, appointed counsel for Underdahl informed the court that Underdahl had decided not to request a speedy trial.  Underdahl did not reassert his right until November 27, 2000, and the trial took place within sixty days of that demand. 

Underdahl asserts that any delays after September were not with his consent, but he concedes that he consented to the prior continuances.  The length of delay, at most, was from September 12, 2000, to January 23, 2001, approximately four and a half months.  The length of delay is only the beginning of the inquiry and does not, by itself, demonstrate denial of the constitutional right to a speedy trial.  See State v. Jones, 392 N.W.2d 224, 234-36 (Minn. 1986) (holding 7-month delay not a violation); State v. Helenbolt, 334 N.W.2d 400, 404-06 (Minn. 1983) (holding 14-month delay not a violation).

Reason for delay

Trial was originally scheduled to begin on July 18, 2000, but on June 19, 2000, defense counsel requested a continuance and the district court continued the case until August 15, 2000.  The district court heard Underdahl’s motion to dismiss on July 31, 2000, after which the court continued the trial to September 12, 2000, to allow briefing by both parties on the motion to dismiss.[1]  On September 12, at the request of counsel for Underdahl and the prosecutor, the trial was rescheduled to December 5, 2000.[2]  At a pretrial conference on November 27, 2000, both the prosecutor and counsel for Underdahl requested a continuance of the trial date.  But at Underdahl’s request, his attorney renewed the request for a speedy trial.  Trial took place within sixty days, beginning on January 23, 2001.

Prejudice

We examine three indicators of prejudice: (1) oppressive pretrial incarceration; (2) anxiety and concern suffered by the accused while awaiting trial; and (3) impairment of the defense.  Windish, 590 N.W.2d at 318.  “A defendant does not have to affirmatively prove prejudice; rather, prejudice may be suggested by likely harm to a defendant’s case.”  Id. (citing Moore v. Arizona, 414 U.S. 25, 26-7, 94 S. Ct. 188, 189-90 (1973)).   The United States Supreme Court stated that impairment of a defendant’s defense is the strongest indicator of prejudice.  Id. (citation omitted).

The first two factors regarding prejudice do not apply.  Underdahl was already incarcerated because he was serving a previously imposed prison term.   The record does not support a claim of undue anxiety or concern suffered by Underdahl due to the delay. 

Underdahl suggests his defense was impaired because two of the children resided with their mother during the delay.  But the suggestion is unpersuasive because the children’s claims, which triggered the charges against Underdahl, did not change, and there is no evidence that the mother or anyone else attempted to influence the children’s testimony at this trial.  Furthermore, defense counsel repeatedly stressed to the trial court the complexity and enormity of the case and the need for sufficient time to prepare.  The district court was led to believe that the delay benefited, rather than prejudiced, Underdahl’s defense.  Considering all of the factors, we hold that Underdahl was not denied his right to a speedy trial. 

Precharging delay

Underdahl also complains about the length of time between R.B. first telling the police that Underdahl coerced him into lying at the first trial and the date of the complaint.  His pre-trial motion to dismiss was based on the state’s alleged failure to prosecute him in a timely fashion.

To establish a constitutional violation due to precharging delay, “a defendant must prove both actual prejudice and an improper state purpose.”  State v. F.C.R., 276 N.W.2d 636, 639 (Minn. 1979).  The district court found that the delay was caused in part by the state’s election to wait until Underdahl’s January 1998 motion for post-conviction relief was decided.  Although the postconviction petition was not concluded until June 5, 2001, the state filed the charges just before the three-year statute of limitations ran.  There is no evidence of actual prejudice to Underdahl as a result of precharging delay, and there is nothing improper about the state’s purpose for the delay.  The delay in charging did not deprive Underdahl of his constitutional right to a speedy trial.

Prosecutor’s comments in closing argument

Underdahl argues that he is entitled to a new trial because the prosecutor’s remarks deprived him of a fair trial.  No fixed rules govern whether a new trial should be granted because of prosecutorial misconduct.  State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980).  The district court is in the best position to determine what remedial measures should be taken to remedy prejudicial prosecutorial misconduct.  See State v. Bates, 507 N.W.2d 847, 851 (Minn. App. 1993), review denied (Minn. Dec. 27, 1993).  We review the alleged misconduct in light of the whole record and reverse only if it appears to be “inexcusable and so serious and prejudicial that a defendant’s right to a fair trial is denied.”  State v. Smith, 541 N.W. 2d 584, 588 (Minn. 1996). 

The test of determining whether prosecutorial misconduct was harmless depends partly upon the type of misconduct      * * * .  [I]n cases involving unusually serious prosecutorial misconduct this court has required certainty beyond a reasonable doubt that the misconduct was harmless before affirming. * * * [I]n cases involving less serious prosecutorial misconduct this court has applied the test of whether the misconduct likely played a substantial part in influencing the jury to convict.

 

State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974) (citation omitted).  We view the misconduct committed here as ‘unusually serious’ because the prosecutor invited the jurors to find Underdahl guilty for an improper reason.

The children testified that Underdahl abused them physically, verbally, and mentally.  At the end of his closing argument, the prosecutor stated:

And in this trial is sort of the first time the kids have had an opportunity to really tell their story and indicate * * * the kind of abuse that they had.  The charges in this trial are not for child abuse, they’re for perjury and witness tampering.  But this is where the kids get their vindication for the years of abuse.

 

I hope you go back to the jury room and you’ll think about it, what the kids went through all those years and justice that’s denied them.  And think about how this is the opportunity to rank at least a little bit of that.

 

Defense counsel immediately objected.  At the end of defense counsel’s argument the court cautioned the jury as follows:

[The prosecuting attorney] indicated at the close of his argument * * * that a finding of guilt of Mr. Underdahl would be vindication for the three Underdahl boys for the abuse that they had suffered.  That is an improper argument and I instruct you again that Mr. Underdahl is on trial only for the charges in the complaint that have been brought in this action.  And you are to consider his guilt only on those matters and he is not to be convicted for any other acts, or incidents, or things that you may consider to be crimes or bad acts.  It would be improper for a jury to make a finding of guilty for that purpose to vindicate people that you consider victims of other bad conduct if that should be the case.

 

Earlier the court gave a cautionary Spreigl evidence instruction telling the jury not to convict Underdahl based on any other crimes or bad acts.  The jury is presumed to have followed the court’s cautionary instructions.  State v. James, 520 N.W.2d 399, 405 (Minn. 1994).  The prosecutor’s comments were egregious but the district court took appropriate remedial action, and there was overwhelming evidence that Underdahl coerced the children’s testimony in the 1997 trial.  We conclude that the misconduct was harmless beyond a reasonable doubt. 

Jury instruction on accomplice testimony

Underdahl argues that the district court erred by refusing to instruct the jury that it could not convict him on uncorroborated accomplice testimony and by not letting the jury decide whether Peterson and the children were Underdahl’s accomplices.  The district court concluded that, as a matter of law, Peterson and the children were not Underdahl’s accomplices because none could be charged with the same offenses as Underdahl.  

The manner in which a jury is instructed is within the discretion of the district court.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  The district court must, when requested, give an instruction on the need for corroboration of accomplice testimony “in any criminal case in which any witness against the defendant might reasonably be considered an accomplice to the crime.”  State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989). 

If it is unclear whether or not a witness is an accomplice to the crime, the jury should make that determination, and if it is clear as a matter of law that a witness is an accomplice, then the court must so inform the jury.

 

Id.  An accomplice is anyone who “could have been indicted and convicted for the crime with which the accused is charged.”  State v. Pederson, 614 N.W.2d 724, 733 (Minn. 2000). 

Underdahl’s children might have been charged for their own perjury, but those crimes were separate and distinct from Underdahl’s perjury.  There is no evidence that Peterson or the children solicited, aided, or advised Underdahl about his own perjury.  Underdahl points to evidence that testimony was rehearsed to support his accomplice theory.  But the evidence was that Underdahl rehearsed the children’s testimony, telling them what to say and threatening or harming them if they did not testify as instructed.  There is no evidence that Peterson or the children rehearsed Underdahl’s testimony or influenced that testimony.  The fact that Peterson had been told that she could be charged as Underdahl’s accomplice as well as with her own perjury and that she agreed to cooperate only after she was guaranteed she would not be so charged, does not establish that she was in fact Underdahl’s accomplice.  The district court did not err by concluding that the children and Peterson were not accomplices and did not abuse its discretion by denying the requested instruction on accomplice testimony.

Perjury: sufficiency of evidence

When determining whether the evidence is sufficient to support a defendant’s conviction, we conduct a careful review of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict they reached.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  Whether particular conduct is encompassed by a criminal statute is a question of statutory construction that is reviewed de novo.  State v. Tomlin, 622 N.W.2d 546, 548 (Minn. 2001).

            Minn. Stat. § 609.48, subd.1(1) (1996) provides:

            Whoever makes a false material statement not believing it to be true in any of the following cases is guilty of perjury * * * :

(1)              In or for an action, hearing or proceeding of any kind in which the statement is required or authorized by law to be made under oath or affirmation.

 

A statement as to the legal effect of certain facts, or a mere conclusion of law, will not ordinarily constitute perjury.  See, e.g., People v. Longuemire, 87 Mich. App. 395, 399 275 N.W.2d 12, 15 (1978) (holding that false legal opinions about effects of facts are not perjurious).  A material statement must be one of fact, not an opinion.  4 Charles E. Torcia, Wharton’s Criminal Law § 621 at 350 (14th ed. 1981). 

Underdahl was charged with:

[O]n or about February 21, 1997 Gary Lynn Underdahl did testify falsely while under oath at his trial on felony charges by stating that he did not commit Burglary in the First Degree against [former girlfriend] on January 5, 1996. * * *

 

[O]n or about February 21, 1997 Gary Lynn Underdahl did testify falsely while under oath at his trial on felony charges by stating that he did not commit Assault in the Second Degree against [former girlfriend] on or about a date in the fall of 1995 by driving his automobile into her automobile. * * *

 

[O]n or about February 21, 1997 Gary Lynn Underdahl did testify falsely while under oath at his trial on felony charges by stating that he did not commit Kidnapping against [former girlfriend] on or about a date in the fall of 1995. * * *

 

            Underdahl argues that these statements are merely an expression of his opinion and belief as to the legal effect of the facts and, as a matter of law, do not constitute material statements, and therefore the convictions must be reversed.  See United States v. Weller, 238 F.3d 1215, 1222 (10th Cir. 2001) (stating that to find perjury every time a defendant denies guilt would impinge on the constitutional right to testify on one’s own behalf).

Respondent argues that a false answer to a question concerning a legal term can constitute perjury, where the meaning of the term is generally known, the term was used in a non-technical sense, and the accused, when testifying clearly understood the manner in which the term was used, relying on DeMan v. State, 677 P.2d 903, 909-10 (Alaska Ct. App. 1984) and United States v. Long, 534 F.2d 1097, 1100-01 (3rd Cir. 1976).  But DeMan deals with Alaska’s perjury statute, which Alaska’s courts broadly define to include legal-opinion testimony.  DeMan, 677 P.2d at 909-10 (broadly interpreting Alaska Stat. §§ 11.56.200 and 11.56.240(1) to include legal-opinion testimony where defendant “was well aware of the common meaning”).  And Long involves whether the defendant understood factual questions that were “fraught with arcane legal” terms.  Long, 534 F.2d at 1100.  

Respondent could have charged Underdahl with making specific false factual statements but chose to base the perjury charges on his denial that he committed each charged offense.  We agree with Underdahl that the denials that his acts constituted a specific crime are more accurately characterized as opinions or legal conclusions rather than statements of fact.  But a criminal complaint may be amended at any time before verdict if there is no additional or different offense charged and if the substantial rights of the defendant are not prejudiced.  State v. Guerra, 562 N.W.2d 10, 12 (Minn. App. 1997). 

Here, the charges, as submitted to the jury in unobjected-to jury instructions, contained statements of specific facts underlying the charges.  The jury was instructed that the Minnesota statutes provide that:

[W]hoever makes a false, material statement that the person does not believe to be true in an action, a hearing, or a proceeding of any kind in which the statement is required or authorized by law to be made under oath or affirmation is guilty of a crime.

 

In respect to Count 1 of this case the elements of perjury are: First, that the defendant made the alleged statement under oath in his trial on felony charges on February 21, 1997, by stating that he did not commit Burglary in the First Degree by entering [his former girlfriend’s] house without consent and assault her on January 5, 1996.

 

                        * * * *

 

In respect to Count 2, the second perjury charge, the elements of perjury in this count are: First, that the defendant made the alleged statement under oath in his trial on felony charges on February 21, 1997, by stating that he did not commit Assault in the Second Degree by assaulting [his former girlfriend] with a dangerous weapon on or about a date in the fall of 1995 by intentionally driving his automobile into her automobile.

 

                        * * * *

 

And in respect to the third count to perjury, the elements of perjury in this case are: First, that the defendant made the alleged statement under oath in his trial on felony charges on February 21, 1997, by stating that he did not kidnap [his former girlfriend] on or about a date in the fall of 1995 by confining or removing [her] from one place to another without her consent and for the purpose of committing great bodily harm or terrorizing her.

 

As submitted to the jury, the charges clearly went to false material statements that were more than Underdahl’s opinion.  Although we do not condone the manner in which Underdahl was charged, and we urge prosecutors to specifically set out in the complaint the statements alleged to constitute perjury, we hold that the charges are sufficient under the facts of this case.

Underdahl also argues that the record does not establish that he explicitly denied committing assault and kidnapping.  The transcript of Underdahl’s 1997 trial testimony, admitted as Exhibit 17, confirms that Underdahl made the following statements, under oath:

Q.        Did you see [former girlfriend] at all on the          day of January 5?

A.        I don’t think so.

 

* * * *

 

Q.        Did you commit a burglary and an assault on         [former girlfriend] on January 5, 1996?

A.        No.

 

                        * * * *

Q.        Were you the cause of [her] sore ribs?

                        A.        No.

                        * * * *

Q.        I’d next like to move on to the alleged assault with a motor vehicle and the kidnapping, Mr. Underdahl. 

Do you recall the night that you ended up getting into the little accident with [former girlfriend] when she was on the way to work?

A.        Yes, I do.

 

* * * *

 

Q.                In any event [former girlfriend] went by you and you followed her?

A.                 Yes.

 

Q.                Then there was testimony there was a Y in the road.  Did both of [you] go the same direction on the Y in the road.

A.                 Yes.

 

Q.                And you followed her?

A.                 Yes.

 

Q.                How fast were you traveling?

A.                 Forty miles an hour.

 

Q.                How far did you actually follow her before the accident occurred?

A.                 Quarter mile.

 

Q.                Did you do anything to try to signal her to stop while you were following her?

A.                 Blinked the lights off and on three consecutive times.

 

Q.                Why did you do that?

A.                 A code.

 

* * * *

 

Q.        What do you recall happening next?

A.        I got up behind her.

 

Q.        How close were you following?

A.        Probably from here to those doors.

 

Q.        And at what speed were you traveling at this point in time?

A.                 Forty miles an hour.

 

Q.        What happened next?

A.        [Former girlfriend] slammed on her brakes.

 

Q.        What did you do next?

A.        Slammed on my brakes.

 

Q.        And how did your car react to hitting the brakes?

A.        It was muddy and it slid into the back of [former girlfriend’s] car.

 

* * * *

 

Q.        [Former girlfriend is] alleging that you then dragged her out of the car. Did you do that?

A.        No.

 

* * * *

 

Q.        Did you force [former girlfriend] into your house that evening?

A.        No.

 

* * * *

 

Q.        How did [former girlfriend] get into the  house?

A.        Walked.

 

Q.        Did she at any point in time indicate that she wanted to get home or she wanted a ride someplace?

A.        No.

 

* * * *

 

Q.        Did you indicate to her that she was not free to go at anytime she wished?

A.        She was free to go anytime she wanted to.

 

Two of Underdahl’s sons testified that they were present when Underdahl came to his former girlfriend’s home on January 5, 1996, and assaulted her.  Peterson, who was in Underdahl’s car at the time of the car incident, testified that Underdahl intentionally rammed his former girlfriend’s car.  Peterson said she had been mistaken when she testified at the 1997 trial that she was with Underdahl in Fargo that day.  His former girlfriend testified that, after the car accident, Underdahl dragged her to his car, shoved her into the car, drove her to his residence, where he yelled at her for the remainder of the night, and she did not feel free to leave.

            The evidence in the record is sufficient to establish beyond a reasonable doubt that Underdahl made false material statements about the facts underlying the 1997 charges, thereby making false material statements that he did not commit the crimes charged.

Sentencing

            Perjury convictions

 

            Underdahl argues that the three perjury charges rise out of one behavioral incident and that the district court abused its discretion by sentencing him on all three counts.  See Minn. Stat. § 609.035 (2000) (barring multiple sentences in cases of multiple offenses committed as part of the same behavioral incident).  When a defendant raises an issue of fairness in sentencing on appeal, a reviewing court has the discretion to modify the sentence.  State v. Vazquez, 330 N.W.2d 110, 112 (Minn. 1983).  But a reviewing court “will not re-evaluate a sentence if the [district] court’s discretion has been properly exercised and the sentence is authorized by law.”  State v. Eaton, 292 N.W.2d 260, 267 (Minn. 1980).

In determining whether multiple offenses are part of a single behavioral incident, courts consider “time, place, and whether the offenses were motivated by a desire to obtain a single criminal objective.”  State v. Soto, 562 N.W. 2d 299, 304 (Minn. 1997).

Respondent argues that to characterize the acts as motivated by a single criminal objective is too broad.  See State v. Gould, 562 N.W.2d 518, 521 (Minn. 1997) (stating that criminal plan of obtaining as much money as possible is too broad an objective to constitute a single criminal goal within the meaning of section 609.035).  Respondent notes that events underlying each charge in the 1997 trial did not occur at the same time or place, and the fact that the offenses were tried together does not make the perjury charges involving them a single behavioral incident.  We agree with respondent that trying the underlying offenses together did not make them a single behavioral incident, but we agree with Underdahl that any false statements he made on the witness stand at the 1997 trial were part of one behavioral incident motivated by his desire to escape conviction.  Pursuant to Minn. Stat. § 609.035, Underdahl can only be sentenced for one of the perjury convictions.  We reverse the imposition of separate sentences for each perjury conviction and remand for resentencing.  

Witness-tampering convictions

Underdahl also argues that the district court abused its discretion by imposing consecutive 18-month sentences for two of his witness-tampering convictions, asserting that, because the crime of witness tampering is classified as a “crime against the administration of justice” rather than a crime against a person, and because the crimes here did not involve “special danger to human life,” the sentences should run concurrently. 

The district court determined that, because the crimes involved threats of physical harm against the children, they constituted crimes against the person for which consecutive sentence is permissible under the sentencing guidelines.  See Minn. Sent. Guidelines, II.F.2.

            The sentencing guidelines do not define what constitutes a “crime against a person.”  Case law makes clear that the determination does not depend on how the crime is nominally classified but depends on the nature of the underlying conduct.  See State v. Myers, 627 N.W.2d 58, 62-3 (Minn. 2001) (holding consecutive sentence for obstructing legal process is crime against a person if underlying conduct in committing crime posed special danger to human life); State v. Notch, 446 N.W.2d 383, 385 (Minn. 1989) (holding that burglary may qualify as offense against a person if “as committed” it is in fact a crime against a person); State v. Henderson, 394 N.W.2d 561, 563-4 (Minn. App. 1986) (affirming consecutive sentence for burglary even though burglary is listed as “property offense” in the statutes), review denied (Minn. Dec. 17, 1986). 

A permissive consecutive sentence for a crime against a person is not an upward departure, so Underdahl’s argument that use of force or threat of injury is an element of first-degree witness tampering does not prevent consecutive sentencing.  The district court did not abuse its discretion by imposing consecutive sentences for two witness-tampering convictions.

Issues raised in pro se supplemental brief

Underdahl raises a number of issues in his pro se supplemental brief, none of which are supported by legal analysis.  Most of Underdahl’s arguments have no support in the record and are without merit, including his assertion that he is innocent of the crimes of which he was convicted in 1997.  Generally, this court declines to reach issues in the absence of adequate briefing.  See State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (declining to reach an issue because it was not adequately briefed).  But this court may reach such issues in the interests of justice.  See Minn. R. Civ. App. P. 103.04.

One of Underdahl’s claims is that he was prejudiced when jurors saw him brought into the courtroom handcuffed and when R.B. left the witness stand he referred to Underdahl with an expletive in front of the jurors.  The incidents were not objected to when they occurred.  The jurors were aware that Underdahl was in custody on another matter and that R.B. was extremely hostile to Underdahl.  If either incident was error, we conclude the error was harmless beyond a reasonable doubt. 

Affirmed in part, reversed in part, and remanded.

 



[1] Underdahl concedes in his brief that the delays from April 2000 to September 2000, which occurred with his consent, should not be considered in evaluating whether his right to a speedy trial was violated.

[2] On September 12, 2000, Underdahl was in prison and not present for the scheduled trial.  Some of the state’s witnesses were also in prison on that date and not present for trial.  The record does not reflect why Underdahl’s and the witnesses’ presence had not been procured for trial.