This opinion will be unpublished and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,
Filed December 16, 2003
Houston County District Court
File No. K4-00-233
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
Richard W. Jackson, Jr., Houston County Attorney, Houston County Courthouse, 304 South Marshall Street, Suite 201, Caledonia, Minnesota 55921-1324 (for respondent)
Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, Minnesota 55113-3724 (for appellant)
Considered and decided by Harten, Presiding Judge; Hudson, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
On appeal from his conviction of bribing a witness, appellant argues that the evidence was insufficient to find him guilty because he did not act with the intent to influence a witness’s testimony. Appellant further argues that the complainant was not a witness or about to become a witness. Because the evidence was sufficient for the jury to find that the complainant was a witness, or about to become a witness, and appellant intended to influence the witness’s testimony, we affirm.
Tanya Kingsley’s boyfriend was a specialist in the United States Army. Following his untimely death, Kingsley attended her boyfriend’s memorial service in Colorado between November 24-25, 1999. Appellant, Captain Kenneth Dobert, acted as an escort officer for Ms. Kingsley. Ms. Kingsley later reported an incident of alleged misconduct by Dobert to the United States Army.
The Army contemplated three separate charges against Dobert and informed him that he might be brought up on the charges, and that his choices were to resign or face court-martial. The military has a procedure that allows an individual facing a court-martial to seek to resign from the military instead of proceeding to court-martial. The procedure involves the accused applying for a Resignation for Good of the Service in Lieu of General Court-Martial (hereinafter Application). Once the accused voluntarily submits an application, it is routed through the accused’s chain of command, each of whom endorses the application as to the resignation and as to what type of discharge the accused should receive if the resignation is accepted. The resignation is not effective until granted by the Undersecretary of the Army or their designee.
On February 25, 2000, Ms. Kingsley testified via telephone at an Army Article 32 hearing (which is akin to a grand jury investigation). Ms. Kingsley testified that she believed she might also have to testify at a future trial on the charges. On March 30, 2000, following the Article 32 hearing, the charges were referred to a general court-martial.
On April 20, 2000, Dobert filed his Application, which detailed the privileges and rights Dobert would give up “if [the Application is] accepted.” Along with his Application, Dobert filed a memorandum entitled “Factors of Consideration for Resignation,” in which Dobert requested an honorable discharge.
On April 25, 2000, Dobert was served with a copy of the Referral of General Court-Martial Charges. On May 9, 2000, Dobert received copies of four letters from the officers in his chain of command, all of whom recommended that the Application be approved and his discharge be issued as “under other-than-honorable conditions.” Dobert requested and was granted leave from the Army from May 15-28, 2000. Dobert stated he intended to go to Michigan to be with his wife and children. En route to Michigan, Dobert drove to Houston, Minnesota, where Ms. Kingsley resided.
On May 16, 2000, Ms. Kingsley received a call from a man who identified himself as Richard Sorge from the Benson Law Firm in Minneapolis. The caller said he was calling on behalf of Dobert’s family and friends because Dobert needed medical benefits because his son was sick. The caller offered Ms. Kingsley $2,000 (and later offered $3,000) to sign a statement saying her testimony at the Article 32 hearing was false. The typewritten statement, dated May 18, 2000, stated:
To Whom It May Concern,
I am writing this statement to clear the air about the incident, which took place on the night of the 25th of November 1999. Previously, I testified that Captain Dobert engaged in oral sex with me on this night. This did not take place. At the time, I was hurt and confused during the time after Dan’s death, and was really drunk after a long evening of talking and drinking. I realize now that the events did not happen the way I remembered them. CPT Dobert acted like a gentleman that evening. He was also unaware that we planned to drive back to Minnesota that night. He had suggested that we stay at the Super 8 Motel, and I did not know we were driving all the way back until I got in the truck with Bob. Finally, CPT Dobert was unaware that I was 20 years old. The topic of my age never came up during the course of the evening. I apologize for any problems previous testimony may have caused. I do not wish any contact with the Army over this or any other issue.
Ms. Kingsley said she would think about signing the statement and that Sorge could call her tomorrow. Ms. Kingsley used the “*57” feature on her phone to trace the call. She then called Houston County Women’s Resources and her sister, and was advised to call the police. Ms. Kingsley spoke with Houston City Police Chief Paul Folz and told him about the call.
On May 17, 2000, around 3:20 p.m., Ms. Kingsley received a second call from Richard Sorge. The caller asked Ms. Kingsley if she would sign the statement, and Ms. Kingsley said she would. The caller said he would call back to arrange a place to meet to sign the statement and receive the money. At trial, Ms. Kingsley testified that she had no intention of signing the statement.
At 4:10 p.m. that same day, Ms. Kingsley received a third call from Richard Sorge, and was told to go to the Schultz Law Office in Houston to sign the statement. She was told that she would not be met by anyone, and was instructed that once she signed the statement in the first envelope, she would receive a second envelope with the money. She was told that she would get another call in an hour.
Around 5:20 p.m. that same day, Ms. Kingsley received a fourth call from Richard Sorge. The caller asked Ms. Kingsley if she had signed the statement, and she replied that she was unable to sign the statement.
On May 18, 2000, between 3:30 and 4:00 p.m., Ms. Kingsley received another call from Richard Sorge, which she tape-recorded. The caller asked Ms. Kingsley if she had signed the statement. Ms. Kingsley asked the caller why she should sign the statement, and the caller stated that Dobert’s kids were sick and that if she signed the statement Dobert could get a job with medical benefits. The caller offered Ms. Kingsley $3,000 if she signed the statement and another $2,000 after Dobert got the job.
On May 16, 2000, around 4:00 p.m., during the same time period as the first phone calls to Ms. Kingsley, a person who identified himself as Bob Schutz entered the law office of attorney Jim Schultz in Houston, and approached Laurie Gilkey, a secretary at the office. Ms. Gilkey later identified Dobert as the person who said he was Bob Schutz. Dobert inquired about notary services and was told the law office would notarize at no cost. The following day Dobert gave Ms. Gilkey an envelope and said a female by the name of Tanya would come in to sign the statement and that he needed her signature notarized, and he would be back later to pick up the envelope. Dobert gave attorney Jim Schultz a second envelope, which had money in it, and instructed Mr. Schultz to give Ms. Kingsley the second envelope after she signed the statement and it was notarized.
Later that day Chief Folz contacted Mr. Schultz. Mr. Schultz was informed that someone connected to Dobert had contacted Ms. Kingsley, and she was asked to sign a recantation letter for which she would receive money. Mr. Schultz informed Chief Folz that someone had contacted him and that he currently had two envelopes, one containing a statement to be signed by Ms. Kingsley and the other containing cash.
On the morning of May 18, 2000, Mr. Schultz informed Ms. Gilkey that he had given the envelopes to the police and that if Dobert came to the office, she was to call the police. Around 4:00 p.m. that same day, Dobert appeared at the office and Ms. Gilkey called 9-1-1. Dobert asked for the envelopes back, but Ms. Gilkey stated she did not know where they were. Dobert left and said he would be back. Shortly after Dobert left the office, Chief Folz arrested Dobert. A search of Dobert’s car revealed a notebook containing Ms. Kingsley’s name, address, and phone number.
At trial Dobert admitted calling Ms. Kingsley and using the name Richard Sorge, admitted being the individual who had been to the law office, and admitted writing the recantation letter for Ms. Kingsley to sign. Dobert testified that he wanted Ms. Kingsley to sign the letter recanting her previous Article 32 hearing testimony in order to answer any questions posed by future employers regarding the events in Colorado. Dobert testified that he believed that after filing his Application on April 20, 2000, the court-martial was over and that he was getting out of the Army. The Undersecretary of the Army accepted Dobert’s Application on June 9, 2000. Dobert was discharged under other-than-honorable conditions from the Army on July 10, 2000.
Major Steven Brodsky, a military lawyer, was called as an expert witness on military law. Major Brodsky testified that when charges are brought against an officer, he or she may seek to resign in lieu of general court-martial. Major Brodsky testified that he is familiar with cases where the court-martial was temporarily delayed or put on hold while the request for resignation is being reviewed, and is also familiar with cases where the request for resignation was denied. Major Brodsky stated that when a resignation is not accepted, the general court-martial proceedings would resume from the point at which they had been stopped. Major Brodsky also testified that filing an application does not immediately result in the dismissal of the underlying court-martial action. Major Brodsky testified that the general court-martial proceedings would still exist until the Undersecretary of the Army authorized the acceptance of the application.
On October 4, 2002, a jury found Dobert guilty of bribery. On October 31, 2002, Dobert’s motion for judgment of acquittal or a new trial were denied. On December 9, 2002, Dobert was sentenced under a stay of imposition of sentence and required to serve sixty days in the Houston County jail and perform 24 hours of community service. This appeal follows.
Dobert argues the evidence was insufficient to find him guilty of bribery because the facts do not support a finding that he acted with the intent to influence Ms. Kingsley’s testimony at the court-martial proceeding, and Ms. Kingsley was not a witness or about to become a witness. Dobert contends that the evidence indicates that he believed his court-martial proceeding was completed due to his resignation. Dobert contends he submitted his Application five days before receiving notice of the charges, which shows he took preemptive action to resign rather than face court-martial. Dobert admits his behavior was “probably inappropriate”; however, he contends that it was not proven that he tried to prevent Ms. Kingsley from testifying at the court-martial.
When reviewing a claim of insufficient evidence, this court examines the record and determines if the evidence, viewed in the light most favorable to the conviction, is sufficient to sustain the fact-finder’s conclusions. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court will not reverse a decision if the fact-finder, acting with respect for the principles of presumed innocence and proof beyond a reasonable doubt, could have reasonably found as they did. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
A person is guilty of bribing a witness if he or she
[o]ffers, gives, or promises to give, directly or indirectly any such benefit, reward, or consideration to a person who is a witness or about to become a witness in a proceeding before a judicial or hearing officer, with intent that the person’s testimony be influenced thereby, or that the person will not appear at the proceeding.
Minn. Stat. § 609.42, subd. 1(3) (2002).
The key issues in this case are whether Ms. Kingsley was “a witness or about to become a witness in a proceeding” and whether Dobert intended to influence Ms. Kingsley’s testimony.
The only Minnesota case discussing whether a person is a witness or about to become a witness is State v. Koon Meng Chan, 393 N.W.2d 228 (Minn. App. 1986), which adopted the rationale of the Kansas Supreme Court in State v. Reed, 213 Kan. 557, 516 P.2d 913 (1973). In Chan, this court stated “there is nothing in the statute which specifically requires that an action or proceeding be pending at the time the attempt is made to deter a witness from giving evidence.” Koon Meng Chan, 393 N.W.2d at 229 (quotations omitted). The Chan court went on to state “a person who has knowledge of facts out of which a criminal proceeding might arise is a ‘witness’ within the meaning of the statute.” Id. (quotations omitted).
Viewed in the light most favorable to the conviction, the evidence was sufficient to find Ms. Kingsley is a “person who is about to become a witness” within the meaning of Minn. Stat. § 609.42, subd. 1(3), as defined by this court in Chan. The evidence shows that Dobert knew that his discharge was not final until his Application went through his chain of command and was accepted by the Undersecretary of the Army or the Secretary’s designee. In addition, the military law expert testified that an application does not result in the immediate dismissal of the underlying court-martial action; and that Dobert’s court-martial proceedings still existed while his Application was being considered. Therefore, we conclude that when Dobert contacted Ms. Kingsley in May 2000, the court-martial proceedings were still pending, but were temporarily on hold while Dobert’s Application was being considered. Because the court-martial proceedings were still pending when Dobert contacted Ms. Kingsley, the jury could reasonably find that she was about to become a witness in those proceedings. Even if the court-martial proceedings were not pending at the time Dobert’s Application was being considered, a proceeding against Dobert might have arisen if his Application was rejected, and therefore Ms. Kingsley would still be a “witness” within the meaning of the statute. Koon Meng Chan, 393 N.W.2d at 229 (stating that a person is a witness if he or she has knowledge or facts out of which a proceeding might arise).
Intent is a credibility question, and a “jury’s decision to reject a defendant’s testimony regarding intent is entitled to due deference.” State v. Davis, 656 N.W.2d 900, 905 (Minn. App. 2003), review denied (Minn. May 20, 2003). The intent element of a crime involves a state of mind and “is generally proved circumstantially, and the jury is in the best position to evaluate the credibility of witnesses and weigh the evidence regarding intent.” Id.
Viewed in the light most favorable to the conviction, the evidence was also sufficient to find that Dobert intended to influence Ms. Kingsley’s testimony. Dobert testified that he read and understood his Application, which detailed the terms of his resignation “if [it was] accepted.” In addition, Dobert filed a memorandum requesting an honorable discharge. After filing his Application, Dobert was served with notice of the referral of his charges to a general court-martial. Shortly after filing his Application, Dobert received four letters from the officers within his chain of command, all of which recommended his Application be approved, and that if approved be issued as “under other-than-honorable conditions.” Thus, Dobert knew there was a very real possibility that he would not be honorably discharged. A few days later, while on leave from the Army, Dobert contacted Ms. Kingsley, used a false identity, and offered her money to sign a letter recanting her previous testimony. Although Dobert argues that he believed the process had been completed when he filed his Application, it appears the jury rejected this argument as not credible. Furthermore, the military law expert testified that to receive an honorable discharge after filing an application, a person would either have to obtain a dismissal of the court-martial charge followed by a successful request to rescind the resignation, or go to trial at general court-martial and be acquitted. Viewed in the light most favorable to the conviction, the jury could reasonably find that by contacting Ms. Kingsley and offering her money to recant her earlier testimony, Dobert intended to influence her testimony at any future court-martial proceeding (or influence her testimony and have the charges dismissed), so he could receive an honorable discharge.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 On January 24, 2000, the Army charged Dobert with Conduct Unbecoming an Officer (supplying alcohol to a person under the age of 21), Sodomy, and Making a False Official Statement to a Fellow Officer.