This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





James Oscar Page, Jr.,




Filed April 22, 2003


Randall, Judge


Hennepin County District Court

File No. 00106219



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


Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Wright, Presiding Judge; Randall, Judge; and Shumaker, Judge



U N P U B L I S H E D   O P I N I O N




            Appellant James Page challenges his conviction for simple robbery, claiming that (1) the state violated discovery rules and his right to due process; (2) the district court abused its discretion by refusing to instruct the jury on the lesser included offense of theft from a person; (3) the victim’s religious references on the stand denied him a fair trial; and (4) the district court erred in responding to questions from the deliberating jury without notifying defense counsel or allowing appellant to be present.  Because we find no error or abuse of discretion, we affirm.


            On March 21, 2000, Brenda Kelm was mugged as she exited her car in South Minneapolis.  Just before midnight, an African-American man approached her and asked for directions.  Although Kelm pointed in the opposite direction, the man continued to approach her.  He asked her, “You don’t want to be on the 6 o’clock news, do you? Give me your purse.”  Becoming increasingly frightened, Kelm refused.  The man came closer, reaching for her purse with his left hand, and threatened to kill her if she did not give him her purse.  Finally, Kelm let go of her purse, and the man ran away down the street.  Kelm set off the panic alarm on her car, but no one came to her aid.  She went to her apartment and called the police.

            When police arrived, Kelm described the man as black, wearing dark pants and a dark hooded sweatshirt or jacket, and with hair worn short in a natural style.  She told police that her wallet, driver’s license, checkbook, and social security card had been in the purse, along with some personal items.

            After giving her statement to police, Kelm wrote an entry in her personal diary providing a physical description of the man who stole her purse.  She described him as being between 35 and 40 years old, 5’10” to 6’ tall, and mentioned that he had been carrying a stick of some sort in his right hand.  She had not mentioned the stick to police.

            Months passed with no developments in Kelm’s mugging.  On October 26, 2000, police entered and searched a house as part of an ongoing investigation into financial crimes.  The suspects in this investigation were appellant, his brother, a man named Donald Pike, and a woman named Susan Olson.  All but appellant’s brother lived in the house.  In a basement room, the police found a social security card with the name Brenda Kelm.  Checking the name against police records, they found Kelm had been the victim of a mugging seven months earlier. 

            Sergeant Jensen contacted Kelm and asked her if she could look at a photo lineup.  Out of 18 photographs, including one of appellant’s brother and one of Donald Pike, Kelm positively identified appellant as the man who stole her purse.  A few days later, Jensen contacted Kelm by telephone to obtain a supplemental statement about the mugging.  Jensen tape-recorded the conversation as they spoke, then prepared his written report and summary, then recycled the tape by placing it back in circulation. 

            Appellant was charged with aggravated robbery in the second degree.  He pleaded not guilty and the matter proceeded to jury trial.  Before trial, defense counsel moved for discovery sanctions, arguing that the state had destroyed the tape of the conversation between Jensen and Kelm rather than turning it over to the defense.  The district court declined to dismiss the case or exclude any in-court identification, as requested by the defense, but left open the possibility of a curative instruction.

            The morning of trial, the state moved to admit Brenda Kelm’s diary, or at least the portions of it that described the mugging.  The rest of the diary consisted mostly of personal, religious writings and Bible passages.  After argument by counsel, the court admitted the diary entry, but prohibited the use of Kelm’s religious statements to impeach her credibility.  The defense was permitted, however, to call attention to the stark difference between the nature of the mugging entry and that of the others. 

            Brenda Kelm identified appellant, seated in the courtroom, as the man who stole her purse.  During cross-examination, Kelm said she had only glanced at the stick.  She could not remember if she and Jensen had discussed a description of the robber during the taped phone conversation.

            Jensen also testified.  He and other officers described how they had found Kelm’s social security card in the house, and how he had handed her the three photo lineup sheets.  He could not remember if they discussed a physical description of the robber during the phone conversation, but said that he doubted they had, since Kelm had already identified appellant from the photos.  Jensen also explained that recycling tapes was common police procedure, and that he would only have saved the tape if it had contained a more formal statement. 

            The defense moved for an instruction on the lesser-included offense of theft from a person, arguing that there was evidence that no force had been used.  After Kelm was recalled to testify further about her diary entry and the stick, the court declined to give instructions on either destruction of evidence or theft from a person, reasoning that there was no evidence from which the jury could conclude that no force was involved in the robbery.

            The jury retired to deliberations.  During deliberations, the jury sent notes to the judge three times.  The first question was answered off the record.  The second question was answered on the record, in the presence of counsel for both parties.  The court also took the opportunity to note on the record how it had answered the earlier question and gave counsel the opportunity to add to the record.  Finally, the jury asked a third question, which was answered on the record. 

            The jury returned a verdict of guilty on the lesser-included offense of simple robbery in the second degree.  Appellant moved for a new trial, which was denied.  Appellant was sentenced to 18 months imprisonment, with credit for 18 months served.  This appeal followed.




            The rules of criminal procedure require the prosecution to disclose to the defense all exculpatory evidence and all relevant documents.  Minn. R. Crim. P. 9.01, subd. 1(3), (6).  In addition to disclosing evidence, the state has a responsibility to preserve material evidence on behalf of criminal defendants.  See State v. Schmid, 487 N.W.2d 539, 541 (Minn. App. 1992), review denied (Minn. Sept. 15, 1992).  To be material, the evidence must

both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. 


Id. (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2530 (1984)).  Only if the evidence is destroyed in bad faith will the failure to preserve potentially useful information result in a denial of due process.  Id. (quoting Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337 (1988), reh’g denied 488 U.S. 1051, 109 S. Ct. 885 (1989)). 

            Here, the district court determined that the defense had not shown that the recycled tape was material evidence that the state had a responsibility to preserve, or that the rules of discovery were violated.  We agree.  The written summary Jensen made of the conversation was disclosed to the defense.  Both Kelm and Jensen were available, testified, and were cross-examined by the defense.  Because the conversation was held after Kelm identified appellant from his photograph, and neither Kelm nor Jensen remembered talking about a physical description of the robber, it is not apparent that the tape contained exculpatory value before it was destroyed.  Further, there is no evidence that Jensen destroyed the tape in bad faith.  Jensen explained on the stand that he taped the conversation as a note-taking tool, prepared his written report, and then recycled the tape as a matter of course.  Although the court refused to give an instruction on the destruction of evidence, defense counsel was permitted to call attention to the missing tape and argue the defense position at closing arguments.  Under the circumstances, it was not an abuse of discretion for the district court to deny discovery sanctions against the state.


Lesser Includeds

            The district court has discretion to instruct on a lesser-included offense, but it must do so if the evidence warrants such an instruction.  Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986).  For the instruction to be warranted, there must be a rational basis on which the jury could acquit the defendant of the charged offense and convict him of the lesser offense.  State v. Griffin, 518 N.W.2d 1, 3 (Minn. 1994). 

            A jury has a rational basis to convict of a lesser crime and acquit of a greater offense if “proof of the elements which differentiate the two crimes [is] sufficiently in dispute so that a jury may make this distinction.”  Bellcourt, 390 N.W.2d at 273 (quotation omitted).  Here, appellant was charged with aggravated robbery, and the court gave an instruction on the lesser-included offense of simple robbery, but refused to instruct on the crime of theft from a person.  Aggravated robbery in the second degree requires that the offender imply, by word or act, the possession of a dangerous weapon during the act.  Minn. Stat. § 609.245, subd. 2 (2002).  Simple robbery requires proof that the defendant used or threatened the imminent use of force to overcome the victim’s resistance or to compel the victim to acquiesce to the taking.  Minn. Stat. § 609.24 (2002).  Theft from a person does not require the use of force.  Minn. Stat. § 609.52, subd. 2(1) (2002). 

            Here, the district court found that there was no evidence from which the jury could reasonably conclude that no force or threat of force was used during the robbery, making an instruction on theft from a person inappropriate.  Kelm consistently stated that appellant approached to within a foot of her, reached for her purse, and made oral threats to her.  He said, “You don’t want to be on the 6 o’clock news, do you?  Give me your purse.”  When she refused, he threatened to kill her.  The inconsistency in Kelm’s statements was with respect to the “stick” she claimed appellant was carrying during the mugging.  Because of this inconsistency, the district court correctly instructed the jury on the lesser-included offense of simple robbery, because the evidence would reasonably allow the jury to conclude that the use of a weapon had not been proved beyond a reasonable doubt.  The district court did not abuse its discretion in refusing to instruct on the lesser-included offense of theft, finding that the evidence would not support the conclusion that no force or threat of force was used during the robbery.



            Appellant claims that two religious statements made by the victim during her testimony both violated the district court’s orders and the rules of evidence and prejudiced his trial by bolstering the victim’s credibility.  We disagree.

            When the state sought to admit Kelm’s diary entry, the court and counsel engaged in a lengthy discussion about the proper use of that evidence.  Defense counsel sought to use the other entries in the diary, which were primarily of a religious and personal nature, to impeach Kelm’s credibility.  The district court ruled that this sort of character impeachment would not be allowed, and ordered defense counsel to refrain from referring to the text of the religious writings.  But, the court allowed the defense to question Kelm about the difference between the entry about the robbery and the rest of the journal. 

            While on the stand, Kelm made two brief references to her religious beliefs.  First, when asked by the prosecutor to describe how she had come to write in her diary the night of the robbery, Kelm replied that she had been keeping a diary since 1994 when she “first accepted a relationship with Jesus.”  Then, when asked if she had reviewed the journal before testifying, Kelm stated that she noticed the journal entry about the robbery while she was reading pages of her journal that gave her “some sort of peace, which were the Bible verses and stuff that I had written down.”  Neither defense counsel nor the prosecutor made an objection to the statements.

            The record shows that both statements were volunteered by Kelm and were not elicited by the prosecutor.  These statements were not offered by the state to bolster Kelm’s credibility, which would be prohibited by Minn. R. Evid. 610.  Importantly, the defense did not object.  The statements appear to be Kelm’s explanation of why she kept a diary and how she remembered that she had written about the robbery.   The district court’s order did prohibit the defense from using Kelm’s religious beliefs for impeachment purposes, but we do not see any apparent error or material prejudice to appellant’s trial caused by her brief, passing comments. 


Fair Trial

            When a defendant is wrongly denied the right to be present at a stage of trial, a new trial is required unless the error was harmless beyond a reasonable doubt or, in other words, the guilty verdict was surely unattributable to the error.  See State v. Sessions, 621 N.W.2d 751, 756 (Minn. 2001).  Communications between the court and the deliberating jury are a stage of trial.  Id. at 755.  When considering whether the erroneous exclusion of a defendant from judge-jury communications was harmless error, a reviewing court considers “the strength of the evidence and substance of the judge’s response.”  Id. at 756 (citations omitted).  We acknowledge that it was error to exclude appellant from this stage of his trial.  The district court should have called the jury, counsel, and appellant into open court to read and answer the jury’s questions.  Alternatively, the district court should have made a record and specifically obtained appellant’s waiver of his right to be present.  However, we do not find reversible error.  First, the evidence that appellant committed a simple robbery against Kelm was not weak.  Kelm positively identified appellant as the man who robbed her, both from the photo lineup and in the courtroom.  She consistently stated that he threatened to hurt her if she did not give him her purse.  Her social security card was found in the building where appellant lived.  The weak link in the evidence was in regards to the presence of a weapon, and the jury took note of this weakness by convicting appellant only of simple, rather than aggravated, robbery. 

            Second, the court’s answers to the jury questions suggest that at least two of the three questions were procedural questions about deliberations, rather than questions about the law or the evidence.  The district court instructed the jury to rely on its own recollection; reread a jury instruction about impasse; and informed the jury that the judge could not meet separately with jurors.  Although the text of the jury’s questions does not appear in the record, the answers to those questions suggest no preference or bias toward either the state or the defense.  See, e.g. Sessions, 621 N.W.2d at 757 (jury question about evidentiary date, outside presence of defendant, court instructed jury to rely on its own recollection of the evidence, held to be harmless error).  The record shows counsel was given the opportunity to object to the court’s answers to the first two questions, but did not do so. 

            The neutral, non-prejudicial nature of the court’s answers to the jury lead us to the conclusion that a new trial is not warranted in the interests of justice.