This opinion will be unpublished and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,
John Edward Tuchek,
Fillmore County District Court
File No. K202224
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2124 (for respondent)
Marc G. Kurzman, Kurzman Grant & Ojala Law Office, 219 Main Street S.E., Suite 403, Minneapolis, MN 55414 (for appellant)
Considered and decided by Wright, Presiding Judge, Lansing, Judge, and Parker, Judge.
U N P U B L I S H E D O P I N I O N
Appellant John Edward Tuchek, the police chief of Lanesboro, Minnesota, was convicted of two counts of first-degree arson with a dangerous weapon, six counts of first-degree arson, and the lesser-included offense of fifth-degree arson.
Shortly before midnight, less than two days after his girlfriend Anessa Dawley informed him that she no longer wanted to date him, Tuchek set fire to cardboard boxes behind the general-store building in which Dawley’s apartment was located. The fire resulted in the complete destruction of two buildings in downtown Lanesboro, and a third building sustained substantial fire damage.
Based on a determination that all of the convictions resulted from a single behavioral incident, the district court sentenced Tuchek on one count of first-degree arson with a dangerous weapon. The court sentenced Tuchek to an executed term of 72 months in prison, an upward durational departure from the presumptive 48-month term. In this appeal challenging the conviction and sentence, Tuchek argues that (1) evidence that he set fire to boxes located next to the building was insufficient to prove that he intended to damage or destroy the building; (2) the district court erred in precluding him from presenting eyewitness testimony placing the fire origin in a different location because the witness had not been listed on the witness list, and in prohibiting defense questioning of prosecution witnesses about the contents of the excluded witness’s report; (3) the prosecutor committed prejudicial misconduct in arguing that intent could be inferred because damage was “reasonably foreseeable”; and (5) the district court erred in imposing an upward durational departure based on appellant’s status as police chief, an impermissible employment factor, and on the fact that there were multiple victims of the offense. We affirm.
D E C I S I O N
In considering a claim of insufficient evidence, this court’s review “is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (citation omitted). This court must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). Circumstantial evidence is entitled to as much weight as direct evidence. State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992).
Minn. Stat. § 609.561, subd. 1 (2000), states:
Whoever unlawfully by means of fire or explosives, intentionally destroys or damages any building that is used as a dwelling at the time the act is committed, whether the inhabitant is present therein at the time of the act or not, or any building appurtenant to or connected with a dwelling whether the property of the actor or of another, commits arson in the first degree . . . .
Based on the lack of direct evidence that he intended to burn a building and his claim that he intended only to burn the boxes, Tuchek argues that the evidence is insufficient to prove intent. The fact-finder, however, “may infer that a person intends the natural and probable consequences of his actions and a defendant’s statements as to his intentions are not binding on the jury if his acts demonstrated a contrary intent.” State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997) (citation omitted).
Tuchek admitted that he started on fire one of the cardboard boxes that were stacked against the general-store building, hoping to make himself look heroic to Dawley. There were approximately 50 boxes located on top of three natural-gas meters. Tuchek admitted using an accelerant, a kerosene-soaked rag, to start the boxes on fire, and residue of a second accelerant, gasoline, was found in the remains of the boxes. After the fire, Tuchek tried to convince Dawley, whose apartment was destroyed, that her only option was to move in with him. Tuchek also admitted to Fillmore County jailer Theresa Scheiffelbein that he had started “a little pile of boxes” on fire. The evidence was sufficient to support Tuchek’s conviction of first-degree arson. See State v. McDonald, 394 N.W.2d 572, 576 (Minn. App. 1986) (evidence sufficient to support first-degree arson conviction where defendant had argument with his girlfriend and commented he hoped she had good insurance, fire marshal concluded an accelerant was used to start fire, residence smelled of kerosene, and chemist found traces of fuel oil or diesel fuel in fire residue), review denied (Minn. Nov. 26, 1986).
Tuchek argues that because the district court instructed the jury on the lesser-included offense of fifth-degree arson, a rational basis existed to find him not guilty of first-degree arson. See State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (for defendant to be convicted based on circumstantial evidence alone, circumstances proved must be consistent with hypothesis that defendant is guilty and inconsistent with any rational hypothesis other than guilt). We note that Tuchek’s conviction was not based solely on circumstantial evidence. His admission that he started the fire was direct evidence of his guilt. State v. Stokes, 354 N.W.2d 53, 56 (Minn. App. 1984). In any event, a rational basis to convict on the lesser-included charge could only exist if the jury believed Tuchek’s version of events. A jury need not credit a defendant’s exculpatory account of events. State v. Starkey, 516 N.W.2d 918, 922 (Minn. 1994).
Tuchek argues that the district court erred in refusing to allow him either to call Holly Knutson as a witness, or cross-examine prosecution witnesses about her statement to a sheriff’s deputy. Knutson told the sheriff’s deputy, and would have testified, that she observed that the fire originated in a stack of cardboard boxes in a trailer located across the sidewalk from the general-store building and then spread to the boxes behind the building.
The decision to exclude evidence rests within the district court’s discretion, and its decision will not be reversed absent a clear abuse of discretion. Starkey, 516 N.W.2d at 925. But the exclusion of exculpatory evidence can deny a defendant the constitutional right to make a complete defense. State v. Quick, 659 N.W.2d 701, 715 (Minn. 2003).
Tuchek contends that the police report containing Knutson’s statement was admissible under the business-record exception to the hearsay rule. Minn. R. Evid. 803(6). But for a writing to be admissible as a business record, the person supplying the information must be acting in the regular course of business or otherwise reliable. 2 McCormick on Evidence § 290, at 258-60 (5th ed. 1999). The record does not show that Knutson was acting in the regular course of business or otherwise reliable. We find no authority supporting Tuchek’s argument that the report was admissible under Minn. R. Evid. 612. Because Knutson was available to testify, the exclusion of the report containing her statement did not deprive Tuchek of the right to present a complete defense. See State v. Beard, 574 N.W.2d 87, 90 (Minn. App. 1998) (defendant’s right to present defense is limited by rules of evidence), review denied (Minn. Apr. 14, 1998).
Tuchek did not disclose Knutson as a witness as required by Minn. R. Crim. P. 9.02(3). The imposition of sanctions for violations of discovery rules and orders is a matter committed to the discretion of the trial court, and we will not overturn its ruling absent a clear abuse of discretion. State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). “In exercising this discretion the trial judge should take into account: (1) the reason why disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors.” Id. (citations omitted). “Preclusion of evidence is a severe sanction which should not be lightly invoked.” Id. at 374 (citations omitted).
At trial, during an argument regarding the prosecutor’s objection to the admission of the police report containing Knutson’s statement, both the prosecutor and the district court invited Tuchek to call Knutson as a witness. The state would not have been prejudiced by Knutson’s testimony. The state was aware of her statement, had a copy of the police report containing the statement well before trial, and listed as a witness the officer to whom the statement was made. Under these circumstances, the district court erred in refusing to allow Tuchek to call Knutson as an exculpatory witness.
Having concluded that the district court erred in excluding Knutson’s testimony, we must determine whether the error was prejudicial. A conviction will not be reversed based on the violation of a defendant’s right to present evidence if the error was harmless beyond a reasonable doubt. State v. Post, 512 N.W.2d 99, 102 (Minn. 1994). “[T]he reviewing court must be satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury) would have reached the same verdict.” Id. (citations omitted).
Knutson’s expected testimony was inconsistent with Tuchek’s own story. In statements to an insurance adjuster and a sheriff’s captain, Tuchek specifically stated that he did not start the trailer on fire and that “the trailer was sitting on the other side of the sidewalk” from the boxes he lit afire. Knutson’s expected testimony was also inconsistent with the forensic evidence. Residue of an accelerant was found in the remains of the boxes behind the building, and two fire investigators testified consistently and extensively regarding their conclusion that the fire originated in the boxes behind the building and could not have started in the trailer. Finally, to be consistent with Tuchek’s admitted motive of appearing heroic to Dawley, the fire needed to be at the building. We are satisfied beyond a reasonable doubt that had Knutson’s testimony been admitted and its damaging potential fully realized, a reasonable jury would have reached the same verdict.
Tuchek argues that the prosecutor misstated the law by arguing that Tuchek was guilty of first-degree arson if damage to a building was a reasonably foreseeable consequence of his actions. After a general objection by defense counsel, the district court stated that defense counsel need not make a specific objection during argument to preserve objection but instructed him to state objections after argument to allow the court an opportunity to give a curative instruction, if appropriate. By failing to object afterward, defense counsel waived any objections. See State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997) (“Generally, a defendant is deemed to have waived the right to raise an issue on appeal concerning the prosecutor’s comments during closing argument if the defendant fails to object or seek cautionary instructions.”). Moreover, the prosecutor did not misstate the law. See Cooper, 561 N.W.2d at 179 (the fact-finder may infer the natural and probable consequences of his actions); State v. Schaub, 231 Minn. 512, 519-21, 44 N.W.2d 61, 65 (1950) (equating natural and probable consequences of negligent act or omission with reasonable foreseeability).
A district court is afforded broad discretion in sentencing decisions and a reviewing court cannot simply substitute its judgment for that of the district court. State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999). To warrant a departure from the sentencing guidelines, aggravating or mitigating circumstances must be cited by the district court and be present in the record. Id. The district court must determine “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.” Id. at 88-89 (citation and quotation omitted).
The district court sentenced Tuchek to an executed term of 72 months in prison, an upward durational departure from the presumptive 48-month term for a severity-level-VII offense committed by an offender with a zero criminal-history score. Minn. Sent. Guidelines IV, V. The aggravating factors listed by the district court to support the departure included: there were multiple victims, at least ten and possibly eleven, some of whom were minors and one of whom was disabled due to surgery; as police chief, Tuchek was in a position of trust and authority in the community; and Tuchek set the fire at a time when the victims would be expected to be home, in bed and sleeping.
Tuchek argues that the district court erred in considering his employment as police chief as an aggravating factor. We disagree. Employment cannot be used as an aggravating factor in the context of a person’s economic status. See Minn. Sent. Guidelines II.D.101 cmt. (stating that sentencing should be neutral with respect to offender’s race, sex, and income level and that employment factors “are highly correlated” with sex, race or income levels). The district court, however, considered Tuchek’s employment as police chief in the context of his violation of a position of trust and authority. Violation of a position of trust and authority can be an aggravating factor. Beard, 574 N.W.2d at 92. Tuchek attempted to use his status as police chief to provide him with an excuse, responding to calls about kids throwing rocks, for being at the fire scene, and make him appear heroic to Dawley.
Caselaw does not support Tuchek’s argument that multiple victims can be an aggravating factor only in major economic offenses. See State v. Morris, 609 N.W.2d 242, 245-46 (Minn. App. 2000) (relying on multiple victims as aggravating factor in terroristic-threats case), review denied (Minn. May 23, 2000). The district court cited the vulnerability of some of the victims due to age and physical incapacity and the fact that the offense occurred late at night when the victims would be expected to be at home and asleep. Tuchek started the fire at a time when he knew that it would be likely that people would be sleeping in the nearby buildings and that at least one of them, Dawley’s two-year-old daughter, was a young child. These were sufficient aggravating factors. See Minn. Sent. Guidelines II.D.2.b (listing vulnerability of victim due to age or physical incapacity as aggravating factor); State v. Winchell, 363 N.W.2d 747, 750 (Minn. 1985) (holding that district court properly considered as aggravating factor the fact that aggravated robbery was committed in victims’ home at 2:00 a.m. and noting that entry into residence in middle of night is greater invasion of residential privacy than entry during daytime).
The district court balanced the aggravating factors against the mitigating factor that Tuchek did not intend to cause the enormous damage that ultimately resulted from his actions. The district court did not abuse discretion in sentencing Tuchek. See Morris, 609 N.W.2d at 245-46 (upholding more-than-double upward durational sentencing departure for terroristic-threats conviction when offense involved standoff with dozens of police officers that lasted through much of a day, resulted in evacuation of several residences, and caused greater risk of physical harm to numerous people.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.