This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Lowrell Royal Anderson,
Filed February 11, 2003
Ramsey County District Court
File No. K6-01-2197
John M. Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Halbrooks, Judge.
Appellant, convicted of fleeing a peace officer in a motor vehicle, argues that the district court abused its discretion in denying his motion to sever for trial the fleeing charge from a companion charge of possession of marijuana. Because we see no prejudice to appellant in the denial of the motion, we affirm.
It is undisputed that, on the night of 22 May 2001, appellant Lowrell Anderson was arrested for fleeing a police officer. During a subsequent search of his car, a bag containing marijuana was found. Based on this incident, appellant was charged with fleeing a peace officer. Respondent State of Minnesota later notified him of its intention to amend the complaint to add a count of marijuana possession, which it did just before a jury trial. Appellant unsuccessfully moved to sever the marijuana offense from the fleeing offense.
At trial, as to the charge of fleeing a peace officer, appellant testified that, while he sat alone in his parked car waiting to pick up his daughter, a man whom he knew saw him and got in the car with him. Then another car arrived; a man in jeans and a T-shirt, not identifiable as a peace officer, got out of that car, approached appellant, and told him to move. Appellant slowly backed up, then turned into an alley at a speed of 15 to 20 m.p.h. He testified that no one was following or chasing him and that he saw no lights and heard no siren. He drove around for a while and then went into a parking area. The same car that he had seen earlier pulled into the lot. Another man, wearing a vest with orange letters, got out and hit appellant with an object. Appellant then ran toward his house.
The trial testimony of two officers presented a contradictory version of the incident. They testified that they were wearing clothing lettered “police,” that they were wearing belts with attached handguns and handcuffs, and that they were using an unmarked patrol car equipped with lights and a siren. They saw two individuals sitting in a car parked with its lights off blocking an alley. The officers got out of their car, approached the driver, later identified as appellant, and shone a flashlight on him. When one officer told appellant to “get going,” appellant spun his car tires in backing up, turned into the alley, and accelerated so his tires spun again. The officers yelled, “Stop, police,” then returned to their car and pursued appellant, using both their lights and siren. Appellant turned his lights off and made a number of quick turns through streets and alleys. The officers testified that, although they were traveling at between 40 and 50 m.p.h., the distance between them and appellant was increasing. The officers followed appellant into a dead-end alley parking area where he and his passenger left their car and ran. One officer testified that he chased appellant, found him crouched behind a dumpster, chased him again when he ran off, and finally, after hitting appellant with his flashlight, caught and handcuffed him. The other officer testified that he caught appellant’s passenger after a foot chase.
As to the charge of marijuana possession, appellant testified that he did not own the fabric bag containing marijuana found in his car and did not know there was marijuana in his car or how it got there. One officer testified that he searched appellant’s car and found on the floor of the passenger side an opaque fabric bag containing a clear plastic bag containing marijuana and a scale of the type used to weigh narcotics.
The jury found appellant guilty of fleeing a peace officer and not guilty of marijuana possession. Appellant challenges his conviction, arguing that failing to sever the two counts of the amended complaint prejudiced him by impairing his ability to present a defense.
A district court’s refusal to sever offenses for trial, even if erroneous, will not be reversed unless it is “prejudicially erroneous.” State v. Jackson, 615 N.W.2d 391, 394 (Minn. App. 2000) (quoting State v. Profit, 591 N.W.2d 451, 460 (Minn. 1999)), review denied (Minn. 17 Oct. 2000). Denial of a motion to sever is reviewed under an abuse of discretion standard. State v. Dick, 638 N.W.2d 486, 490 (Minn. App. 2002), review denied (Minn. 16 April 2002).
“It is proper to join offenses for trial only if the offenses are part of a single behavioral incident.” Jackson, 615 N.W.2d at 394 (citing Profit, 591 N.W.2d at 460). Appellant concedes that his offenses were part of a single incident but argues that a Spreigl analysis, requiring clear and convincing evidence that the defendant committed the other offense, should be used to determine if joinder was prejudicial. But we have rejected that argument. Dick, 638 N.W.2d at 491 (noting there is no authority requiring a Spreigl analysis before joining related offenses for trial). And there is a further problem in applying a Spreigl analysis to related offenses if the defendant is acquitted on one of them:
[W]here a defendant has been acquitted of an unrelated criminal charge, the Spreigl test cannot be met as to that charge because it cannot be said that there is clear and convincing evidence that a defendant committed an offense of which he has been acquitted. It would be absurd to conclude that joinder of related offenses is erroneous as a matter of law if a defendant is acquitted of one of the charged offenses.
Id. (citation omitted). Accordingly, appellant’s argument that his acquittal on the marijuana possession charge entitles him to a new trial on the charge of fleeing a peace officer is misplaced. The only issue is whether severance of the charges was prejudicial. See id.
Appellant argues that the joinder was prejudicial because it forced him to testify about both the fleeing charge and the marijuana possession charge. But appellant said almost nothing about the marijuana possession charge and testified at length on the fleeing charge. The facts relating to the marijuana charge were different from the facts connected to the fleeing charge: they concerned whether appellant owned the fabric bag in which the marijuana was found, whether he had marijuana in his car, and whether he knew that his passenger had marijuana. He answered, “No,” to each of these questions, and his testimony on the marijuana charge occupies less than one page of the transcript.
Finally, appellant argues that the man in the car with him would have testified on the fleeing charge if he had not been concerned that he would be asked about the marijuana. However, that man had also fled the officers on foot, and nothing in the record supports appellant’s claim that the man was willing to testify.
We conclude that the district court’s denial of appellant’s motion to sever the charges for trial was not prejudicially erroneous.