This opinion will be unpublished and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,
Lance Phillip Wickner,
Filed January 20, 2004
Beltrami County District Court
File No. K3-00-1998
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2221 University Avenue Southwest, Suite 425, Minneapolis, MN 55414 (for appellant)
Timothy R. Faver, Beltrami County Attorney, 619 Beltrami Avenue Northwest, Bemidji, MN 56601; and
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)
Considered and decided by Hudson, Presiding Judge, Peterson, Judge, and Harten, Judge.
Appellant challenges his conviction of criminal vehicular homicide, arguing that the district court abused its discretion in admitting Spreigl evidence and that the prosecutor committed prejudicial misconduct; he also challenges both the duration and the consecutive nature of his sentences. Because we see no abuse of discretion and no prejudicial error, we affirm both the conviction and the sentence.
During the morning of 17 November 2000, appellant Lance Wickner, age 19, stole a car after absconding from electronic monitoring following release from imprisonment on a criminal sexual conduct conviction. That evening, he and J.A., age 17, left a party at which appellant had been drinking. Appellant drove the car into a ditch where it rolled over, critically injuring J.A.
Appellant flagged down a car transporting two other friends on their way to the party; appellant told them there had been an accident. The friends drove the unconscious J.A. to the hospital. Appellant accompanied the friends partway. The friends later testified that, while riding in their car, appellant said that he had been driving about 120 mph at the time of the accident. Appellant left the car before it arrived at the hospital. J.A. later died of his injuries.
Appellant did not report the accident. He was arrested the following day and charged with criminal vehicular homicide and theft of a motor vehicle. At his trial, he testified that J.A. had been driving and was attempting to see how fast the car could go when the accident occurred. After appellant’s testimony and before closing argument, the district court permitted the state to amend the complaint by adding a charge of grossly negligent driving to the charge of negligent driving while under the influence of alcohol. The jury was instructed that either grossly negligent driving or negligent driving while under the influence of alcohol would support a finding of criminal vehicular homicide. The jury convicted appellant of criminal vehicular homicide and of theft of a motor vehicle. The district court sentenced appellant to 116 months, double the presumptive sentence for a criminal history score of one, and to a concurrent 17 months for theft of a motor vehicle.
Appellant challenged his conviction. This court reversed and remanded on the grounds that the district court lacked discretion to permit amendment of the complaint and abused its discretion in instructing the jury that either grossly negligent driving or negligent driving while under the influence of alcohol would support a finding of criminal vehicular homicide. State v. Wickner, No. C0-01-1020 (Minn. App. 14 May 2002).
Meanwhile, appellant was charged with escape from custody as a result of his November 2000 absconding from electronic monitoring. He pleaded not guilty. A jury later convicted him, and he was sentenced to 13 months consecutive to the sentence for criminal sexual conduct that had been in effect when he absconded.
At retrial on remand, the state introduced as evidence a letter written by appellant after the first trial in which he stated that he, not J.A., had been driving. The jury convicted appellant of criminal vehicular homicide involving gross negligence and criminal vehicular homicide in leaving the scene of an accident resulting in death but acquitted him of criminal vehicular homicide involving negligent driving while under the influence of alcohol. The district court again sentenced appellant to 116 months for criminal vehicular homicide (an upward departure from the presumptive 88 months) consecutive to his previous sentences for criminal sexual conduct and felony escape.
Appellant now challenges his conviction, arguing that (1) the district court abused its discretion in admitting Spreigl evidence of appellant’s absconding from electronic monitoring and of his theft of the vehicle; (2) the prosecutor committed prejudicial misconduct; and (3) the district court’s sentence was an abuse of discretion.
D E C I S I O N
1. Spreigl Evidence
The admission of Spreigl evidence lies within the sound discretion of a trial court and will not be reversed absent a clear abuse of discretion. State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996). To admit Spreigl evidence, a trial court must find that (1) there is clear and convincing evidence that the defendant participated in the other incidents; (2) the evidence is relevant and material to the state's case; and (3) the probative value of the evidence outweighs its potential for unfair prejudice. Id. Appellant concedes that the evidence of his absconding from electronic monitoring and his theft of a motor vehicle is clear and convincing, but argues that it is irrelevant, immaterial and unfairly prejudicial.
Appellant was charged with violation of Minn. Stat. § 609.21, subd. 1(7) (2000), which prohibits causing an accident and leaving the scene in violation of Minn. Stat. § 169.09, subd. 6 (2000) (driver involved in an accident must “by the quickest means of communication, give notice of the accident to the local police department”). Appellant relies on the exception to this requirement set forth in Minn. Stat. § 169.09, subd. 15 (2000), which permits a driver to leave the scene of an accident before notifying police in order to procure necessary emergency medical care, provided the driver thereafter notifies police as soon as “reasonably feasible.” But, for the statutory exception to apply, appellant would have had to take J.A. to a hospital and then report the accident to the police. Instead, appellant left the car that was taking J.A. to the hospital, went to another friend’s home, and waited for the police to find him 14 hours later.
Appellant’s counsel explained the failure to notify the police only by saying that appellant was “distraught.” But the state sought to prove that appellant had reasons other than being distraught for not notifying the police, i.e., that appellant was absconding from electronic monitoring and driving a stolen car. See State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988) (“[E]vidence that other criminal acts have been committed by the accused may be admissible to show his motive for the offense charged, notwithstanding that such evidence proves or tends to prove an offense other than that charged.”); State v. Gorman, 532 N.W.2d 229, 234 (Minn. App. 1995) (“Spreigl evidence may be admitted to show motive, even though motive is not an element of the offense”), aff’d on other grounds, 546 N.W.2d 5 (Minn. 19 Apr. 1996).
The Spreigl evidence meets the relevance requirement.
Prejudice in the context of Spreigl evidence “refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means”; it does not refer to an adverse effect on a defendant’s case caused by “the legitimate probative force of the evidence.” State v. Chambers, 589 N.W.2d 466, 477 (Minn. 1999). Appellant contends that he was unduly prejudiced by the Spreigl evidence because “it tended to show that appellant is worthy of punishment for his misdeeds.” However, the district court instructed the jury that
any evidence of other crimes that [appellant] was convicted of would be offered during the course of this trial only for the limited purpose of assisting you in determining whether [appellant] committed the acts with which he is charged in this case.
He is not being tried for and may not be convicted of any other offense, other than the one that we are dealing with in this case, the Criminal Vehicular Homicide. And you are not to convict him on the basis of any occurrences for which he might have been convicted in another setting. To do so might result in unjust double punishment.
Using almost identical language, the district court repeated that instruction when the evidence of the car theft was offered and again when evidence of absconding from electronic monitoring was offered. An appellate court “presume[s] that jurors follow a judge’s instructions.” State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998). The fact that appellant was acquitted of one charge tends to show that the jury followed the judge’s instructions.
Moreover, Spreigl evidence is prejudicial when there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence. State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). In closing argument, appellant’s counsel admitted that appellant was driving the car. Evidence that appellant did not report the accident was undisputed: appellant’s counsel said appellant did not report the accident because he was distraught and the state said that appellant did not report it because he was intoxicated. Accordingly, exclusive of the Spreigl evidence, the jury had ample grounds to find that appellant was guilty of failure to report, and, correspondingly, guilty of criminal vehicular homicide in leaving the scene of an accident resulting in death.
The trial court did not abuse its discretion in admitting Spreigl evidence.
2. Prosecutorial Misconduct
Appellate courts apply a harmless error analysis to determine whether prosecutorial misconduct warrants a new trial. State v. Caron, 300 Minn. 123, 127-8, 218 N.W.2d 197, 200 (1974). There are two distinct standards for determining whether alleged prosecutorial misconduct constitutes harmless error: serious misconduct is harmless error if the verdict surely is unattributable to the error, and less serious misconduct is harmless error if the misconduct probably did not play a substantial part in influencing the jury to convict. State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). Only when the misconduct is unduly prejudicial will relief be granted absent a defendant’s objection or request for curative instruction. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997). Appellant did not object at trial to the statements he now claims were misconduct.
The first of these were oblique closing argument references to two biblical characters, Solomon and Thomas. Specifically, the prosecutor said,
One of Solomon’s proverbs says it all. “The wicked flee where no man pursueth, but the righteous are bold as a lion.” [Appellant] fled from his wicked deed on the evening of [the accident].
. . . .
There is a well-known account of a man named Thomas who doubted until he could see the wounds himself. Once he saw the wounds with his own eyes, his doubt was gone.
Ladies and gentlemen of the jury, you have seen the wounds and marks [of seatbelts on appellant and on the body of J.A.]. There is no room for doubt here.
Appellant contends first that this rhetoric aroused the passions and prejudices of the jury and diverted it from deciding the case based solely on the evidence. But there was no religious connotation to the references: their language was purely illustrative. The prosecutor’s reference to Solomon tended to show that fleeing a crime implies guilt for that crime, a legitimate inference, particularly when the flight is itself a crime. The reference to Thomas was simply a metaphor: as Thomas stopped doubting because he saw the marks of wounds, so the jurors should not doubt that appellant was the driver when they saw the photos showing marks of seatbelt wounds on him after the accident.
Appellant concedes that the biblical references alone do not warrant a new trial, but contends that the prosecutor committed further misconduct by “attack[ing] appellant’s character and portray[ing] him as evil and cowardly.” The transcript does not support this contention. The prosecutor said that appellant stole the car, that he drove after drinking, that he had a disregard for highway safety, that he fled from the accident and did not accompany J.A. to the hospital or notify the police, that by fleeing he made it impossible for the police to check the alcohol level of his blood at the time of the accident, that he tried to conceal his injuries, and that he admitted to driving 120 mph. Evidence fully supports all these statements.
Appellant also claims that the prosecutor committed misconduct in saying that the witnesses led “inappropriate lives . . . [d]ays wasted, sitting around followed by underage drinking parties and serial romantic relationships.” But the purpose of these remarks, although critical of the witnesses, was to contrast them, whether they wound up in prison or “turned their lives around,” with the victim, J.A., who was deprived of the opportunity to turn his life around.
Appellant relies on State v. Porter, 526 N.W. 2d 359 (Minn. 1995), which reversed and remanded for a new trial the conviction of a sex offender because of prosecutorial misconduct, but his reliance is misplaced. The prosecutor in Porter repeatedly referred to the defendant’s “School of Sex Education.” Id. at 363. The prosecutor also told the jurors:
There is no salve you can put on your conscience . . . . Now you are not going to be able to walk out and have that kind of a sedative to make you feel better if you arrive at the wrong verdict. By wrong verdict I mean you don’t convict this man . . . .
. . . .
[A defense witness’s testimony that the events occurred beyond the statute of limitations] is without any credibility whatsoever . . . . Do you believe that? If you do and this is over, I got time share in Santa Claus’s condo at the north pole, and I will sell you some. You are not that big of suckers, and you know that.
Id. The prosecutor’s remarks to the jurors in the instant case were not comparable.
Finally, appellant argues that, while neither the admission of the Spreigl evidence alone nor the prosecutorial misconduct alone may be a sufficient basis for giving him a third trial, they are cumulatively sufficient. But because we see no error in admitting the Spreigl evidence and no prosecutorial misconduct, there is nothing to cumulate.
Appellant challenges three aspects of his sentence: (1) that he received a longer sentence on retrial; (2) that he was sentenced to an upward durational departure, and (3) that the sentences were consecutive.
a. Sentence On Retrial
After his first trial, the district court doubled the presumptive 58 months for criminal vehicular homicide and imposed a sentence of 116 months to run concurrent to appellant’s 60-month sentence for criminal sexual conduct. However, the sentences were presumptively consecutive, not concurrent, because appellant had been on supervised release at the time of the homicide. The district court addressed this error at the second sentencing hearing, saying “I made what I believe to be an error in law in imposing a concurrent sentence, when I think both counsel specifically agree that it, by law, should have been a consecutive sentence.” The district court then relied on Bangert v. State, 282 N.W.2d 540, 547 (Minn. 1979) (on resentencing, judge is not bound by the rule prohibiting a harsher sentence than the sentence originally imposed if the original sentence was based on an error of law) and sentenced appellant to 116 months, a double upward durational departure, to run consecutive to his sentences for criminal sexual conduct and consecutive to his sentences for theft of a motor vehicle and felony escape. But the sentence for theft of a motor vehicle had previously been imposed to run concurrently to the sentence for criminal sexual conduct and was not affected by the appeal, so appellant’s actual sentence is 129 months (116 for criminal vehicular homicide plus 13 months for felony escape) consecutive to his criminal sexual conduct sentence.
Appellant attempts to distinguish Bangert by arguing that the concurrent sentence he received after his first trial was not an error but only a permissible departure from the presumptive consecutive sentence. But appellant’s argument is without merit: Bangert indicates that:
[i]t is not at all clear that fairness and public policy entitle a defendant to the benefit of a mistake by the [first] sentencing judge. We therefore conclude that the [second] sentencing judge may order the sentences to run either concurrently or consecutively.
Id. at 547-48. The sentencing judge here was free to impose the presumptive consecutive sentence.
b. Durational Departure
Departures from presumptive sentences are reviewed under an abuse of discretion standard, but there must be “substantial and compelling circumstances” in the record to justify a departure. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). A departure will be affirmed even if the reasons given are inadequate when the record provides sufficient evidence to justify the departure. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). Appellant was sentenced to double the presumptive sentence, which is generally the upper limit when aggravating factors are present. See State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988).
Appellant concedes that the district court correctly identified some aggravating factors, i.e., appellant’s prior conviction for criminal sexual conduct, his attempt to blame the victim, his lack of remorse, and his disregard for the law as evidenced by driving without a license. These factors alone support the upward departure. See, e.g., State v. Bicek, 429 N.W.2d 289 (Minn. App. 1988) (upholding double durational departure when one victim was an infant and many others were exposed to risk), review denied (Minn. 23 Nov. 1988); State v. VanZee, 547 N.W.2d 387 (Minn. App. 1996) (using lack of remorse as one basis for upholding triple upward departure), review denied (Minn. 10 July 1996).
Appellant claims the district court erroneously considered his theft of the car, a separate crime, as an aggravating factor. But the district court alluded to the theft of the car not as an incident connected to the crime of theft but as one of four indicators of appellant’s disregard for the safety of others. A callous disregard for the safety of others may justify an upward departure. State v. Herrmann, 479 N.W.2d 724, 731 (Minn. App. 1992), review denied (Minn. 19 Mar. 1992). Appellant also objects to the district court’s reliance on his driving after drinking and his high speed. But these also were mentioned only as indicators of appellant’s callous disregard. Ultimately, the district court found that appellant has a “complete and callous disregard for the laws of our state” of which the record provides ample evidence.
c. Consecutive Sentences
Appellant argues that the trial court erred in imposing permissive consecutive sentences for criminal vehicular homicide, escape, and theft of a motor vehicle. The 17-month theft sentence was actually made concurrent with the 60-month criminal sexual conduct sentence at the first sentencing hearing, and this was not changed by the appeal and the remand. The escape sentence was permissively consecutive to the criminal vehicular homicide sentence pursuant to Minn. Sent. Guidelines II.F.5: “[a] current felony conviction for a crime committed while on felony escape from lawful custody, as defined in Minnesota Statutes, section 609.485, from an executed felony sentence may be sentenced consecutively to the sentence for the escape.”
We conclude that there was no abuse of discretion in the admission of the Spreigl evidence or in the sentence and no prosecutorial misconduct.
 The felony escape conviction is the subject of a separate appeal.
We note that ordinary English dictionaries include both names. See, e.g., American Heritage Dictionary of the English Language (3d ed. 1992) defining “Thomas” as “One of the 12 Apostles [who] . . . doubted that Jesus had risen from the dead until he saw the wounds” at 1866 and “Solomon” as “King of Israel famous for his wisdom” at 1716; Random House Webster’s Unabridged Dictionary (2d ed. 1998) defining “Thomas” as “an apostle who demanded proof of Christ’s Resurrection” at 1973 and “Solomon” as a “king of Israel . . . [and] an extraordinarily wise man” at 1817.
 Appellant’s counsel later admitted that appellant had been the driver: this admission would have been dispositive of the jury’s doubts, so the “Thomas” remark would in any event have had no effect.
 We address this argument because appellant raises it on appeal, even though his counsel conceded at the sentencing hearing that consecutive sentencing was appropriate.