This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Ryan L. Peterson,
Filed March 15, 2005
in part, reversed in part, and remanded
Fillmore County District Court
File No. K2-03-363
Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2131; and
Brett A. Corson, Fillmore County Attorney, 117 St. Paul 2 SW, P.O. Box 65, Preston, MN 55965 (for respondent)
John M. Stuart, State Public Defender, Davi Elstan Forte Axelson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Chief Judge, Huspeni, Judge,* and Crippen, Judge.
Ryan Peterson appeals from his conviction of second-degree assault and false imprisonment, arguing that (1) the prosecutor committed prejudicial misconduct by eliciting evidence of a prior bad act without having given defense counsel notice of his intent to do so, and (2) he was denied the effective assistance of counsel by his attorney’s failure to object to references to an outstanding warrant and to his recent release from jail. Also appealing his sentence, appellant argues that the district court (1) erred by ordering him to reimburse the public defender fund for the expense of appointed counsel without first holding a hearing to determine his ability to pay, and (2) abused its discretion by imposing concurrent sentences for the assault and false imprisonment convictions; appellant claims that the offenses were part of a single behavioral incident. We affirm the conviction but reverse the reimbursement order and the concurrent false-imprisonment sentence and remand for a hearing on appellant’s financial ability.
In May 2003, appellant Ryan Peterson slammed Hillary Ayshford against a kitchen counter at her apartment, grabbed a kitchen knife, and threatened to kill himself if she left. When Ayshford ignored the threat and walked to the door, appellant slammed the door, pushed Ayshford against the wall, and held the knife three inches from her neck, threatening to kill both of them. This was followed by an additional similar threat as Ayshford attempted to get away from appellant by running to an exit door. Appellant grabbed her from behind, pulled her to the floor, and slammed the door. Ayshford subsequently left after a friend arrived to help her.
A jury found appellant guilty on charges of second-degree assault, terroristic threats, and false imprisonment. The district court vacated the terroristic-threats conviction, reasoning that it was based on the same behavioral incident as the assault. The court sentenced appellant to 47 months in prison for the assault conviction and to a 23-month concurrent sentence for the false imprisonment conviction. Without holding a hearing to determine appellant’s ability to pay, the court ordered appellant to reimburse the public defender fund $700 for the expense of appointed counsel.
Appellant argues that the prosecutor committed prejudicial misconduct by eliciting testimony about a prior criminal act without providing appellant notice of his intent to do so.
Whether prosecutorial misconduct warrants a new trial is a matter within the district court’s discretion, State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997), and an appellate court will reverse a conviction on the ground of prosecutorial misconduct only if the misconduct was “inexcusable and so serious and prejudicial that a defendant’s right to a fair trial is denied.” State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996). In cases involving less serious prosecutorial misconduct, an appellate court will reverse only if the misconduct substantially influenced the jury to convict. State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200 (1974). Even if serious misconduct occurs, a new trial is not required if the conduct is harmless beyond a reasonable doubt. State v. Stewart, 645 N.W.2d 115, 121 (Minn. 2002).
At trial, Ayshford testified that her relationship with appellant had deteriorated. The prosecutor then asked her what had gone wrong, and Ayshford responded that “[appellant] had stolen a credit card from my dad and there was also a check missing which we don’t know for sure if he had taken that or not.” Defense counsel objected. He then moved for a mistrial, claiming that the state had not provided appellant notice of its intent to introduce evidence of prior bad acts. The court denied the motion, reasoning that the state had not elicited the statement deliberately and that the statement did not make it more likely that appellant would be convicted.
Evidence of prior bad acts is admissible in limited circumstances, provided the state gives the defendant notice before trial. Minn. R. Crim. P. 7.02; State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). The notice requirement is designed to eliminate the element of surprise and to give the accused an adequate opportunity to prepare for trial. State v. Belssner, 463 N.W.2d 903, 908-09 (Minn. App. 1990), review denied (Minn. Feb. 20, 1991). Evidence “bearing directly on the history of the relationship” between the accused and the victim is not subject to the notice requirement, however. State v. McCoy, 682 N.W.2d 153, 159 (Minn. 2004); State v. Boyce, 284 Minn. 242, 260, 170 N.W.2d 104, 115 (1969).
The record supports the district court’s finding that the prosecutor’s conduct was unintentional. The prosecutor readily admitted that the state had not notified appellant of its intent to introduce Spreigl evidence; but he argued that he elicited the evidence to show the nature of the parties’ relationship. The prosecutor’s response suggests that he might have been under the misimpression that the evidence in this case bore directly on the history of the parties’ relationship and was admissible without notice. The district court’s finding that the prosecutor’s conduct was “unintentional” is not clearly erroneous.
Relying on State v. Handt, appellant argues that the prosecutor’s conduct was intentional and warrants a mistrial. But Handt is distinguishable, not only because the issue before the court was double jeopardy but also because the contacts with the police to which the prosecutor alluded had been specifically ruled inadmissible. See No. A03-1459, 2004 WL 1152831, at *2 (Minn. App. May 25, 2004) (reversing and remanding for determination of whether prosecutor intended to goad defense into requesting mistrial where district court found that “prosecutor was attempting to skew the jury’s perception by alluding to evidence that had specifically been ruled inadmissible, was acting in bad faith, and was grossly negligent”).
Even if the prosecutor’s conduct was serious and intentional, it does not warrant a new trial because it was harmless beyond a reasonable doubt. Ayshford’s testimony about the stolen credit card and missing check was brief and was not detailed. See State v. Clark, 486 N.W.2d 166, 170 (Minn. App. 1992) (stating that when “a reference to a defendant’s prior record is of a passing nature, . . . a new trial is not warranted because it is extremely unlikely that the evidence in question played a significant role in persuading the jury to convict” (quotation omitted)). By contrast, her testimony about the assault was detailed; consistent with the statements she gave to the police after the incident; and corroborated by physical evidence, including evidence of blood stains from appellant’s cut finger and evidence of a hole Ayshford made on the carpet when she pushed the knife into it. Additionally, the court advised the jury that the testimony had been stricken from the record and instructed them not to consider it for any purpose whatsoever.
Appellant argues that the lack of notice was prejudicial because studies conducted over the past 40 years show that the assumption that juries can follow the court’s curative instructions regarding the proper use of prior bad acts is unfounded and that jurors “use prior conviction evidence to infer criminal propensity and frequently ignore or fail to understand limiting instructions.” But appellant’s argument is inconsistent with Minnesota law, which presumes that jurors follow the court’s instructions. See State v. Miller, 573 N.W.2d 661, 675-76 (Minn. 1998).
During his opening statement, the prosecutor told the jury that appellant had had “some minor scrape with . . . the law, served a little bit of time . . . in the county jail and on May 22nd or so he was released.” Defense counsel failed to object. During direct examination, Officer Blaise Sass told the jury that he executed a pending warrant for appellant’s arrest and that appellant telephoned Ayshford from jail after he was arrested. Once again, defense counsel failed to object. During conference, the prosecutor asked defense counsel if he had an objection to the prosecutor’s reference to appellant’s recent release from jail. Counsel responded that he “[was] not going to object to testimony that my client had been released from jail.” Counsel also stated that he “had not planned to object to the fact that [appellant] was arrested on a warrant and was in [the] Houston County [jail].” Appellant argues that counsel’s failure to object constitutes ineffective assistance of counsel and warrants a new trial.
To succeed on a claim of ineffective assistance of counsel, a defendant must affirmatively prove that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s conduct, the result of the proceeding would have been different. State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998). In determining whether counsel’s performance fell below an objective standard of reasonableness, a reviewing court must consider whether counsel exercised the skill and diligence a reasonably competent attorney would exercise under similar circumstances. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel’s performance, the result of the proceeding would have been different. A reasonable probability is one “sufficient to undermine confidence in the outcome” of the proceedings. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984).
Even if the performance of appellant’s counsel was objectively unreasonable, it was not prejudicial because, given the strength of the evidence, there is no reasonable probability that, but for counsel’s performance, the verdict would have been different. Admittedly, in close factual cases this court will order a new trial even if the evidence is otherwise sufficient to support the verdict. State v. Blasus, 445 N.W.2d 535, 541 (Minn. 1989). But this is not a close factual case. Both Ayshford’s and Officer Sass’s testimony were largely unimpeached and clearly established that appellant committed the crimes of which he was convicted.
Appellant argues that the cumulative effect of all the errors compels reversal. See State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979) (reversing conviction on basis of cumulative effect of errors committed at trial). In light of the evidence, however, the cumulative effect of the inadmissible statements is insufficient to justify a new trial.
Appellant correctly asserts that the district court erred by requiring him to reimburse the public defender fund without first scheduling a hearing to determine if he was able to pay.
As a condition of probation, the district court may require a defendant, to the extent of his or her ability, to compensate the governmental unit charged with paying the expense of appointed counsel. Minn. Stat. § 611.35, subd. 1 (2002); Minn. R. Crim. P. 5.02, subd. 5. But before ordering reimbursement, the court must hold a hearing to determine if the defendant is financially able to pay for some or all of the expense of appointed counsel. State v. Foster, 416 N.W.2d 835, 837 (Minn. App. 1987) (stating that “[t]he proper procedure for obtaining reimbursement for public defender services requires the court to conduct a hearing on the defendant’s financial ability to pay”); State v. Larson, 374 N.W.2d 329, 331-32 (Minn. App. 1985). The purpose of the hearing is to ascertain the cost of the defense and whether the defendant is able to pay for it. Foster, 416 N.W.2d at 837.
At the sentencing hearing, the court ordered appellant to reimburse the public defender fund $700. Although the defender reported that he had spent 16 hours on appellant’s case, the court did not explain how it arrived at the mandated reimbursement sum. And although the court had advised appellant of his right to a hearing on a restitution order, the court did not so advise appellant respecting the defense reimbursement.
This court has consistently held that the failure to conduct a hearing to determine if a defendant is able to reimburse the government for the expense of appointed counsel is error. See, e.g., id.; Larson, 374 N.W.2d at 331. The burden was on the district court to order a hearing with or without appellant’s request. Compare Minn. Stat. § 611.35, subd. 1 (requiring a hearing to determine if a defendant is able to reimburse the public defender) with Minn. Stat. § 611A.045, subd. 3b (2002) (requiring a defendant to request restitution hearing within 30 days); see also State v. Sargent, 355 N.W.2d 179, 181 (Minn. App. 1984) (stating court must make findings unless defendant agrees to reimburse public-defender fund).
Because appellant is entitled to a hearing and findings on his ability to pay the reimbursement, we reverse that part of the sentence and remand for a hearing.
Finally, appellant argues that the district court abused its discretion by imposing concurrent sentences for both the assault and false imprisonment convictions, claiming that the offenses arose out of the same behavioral incident. This sentencing challenge also has merit, and we reverse the false imprisonment sentence.
A district court has broad discretion in sentencing, and this court will not reverse a sentence absent a clear abuse of that discretion. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). With certain exceptions not relevant to this case, a sentencing court may not impose more than one sentence on a defendant who commits multiple offenses as part of a single behavioral incident. Minn. Stat. § 609.035, subd. 1 (2002).
In determining whether two convictions arose out of a single behavioral incident, we are to consider time, place, and whether the offenses were motivated by a desire to obtain a single criminal objective. State v. Richardson, 633 N.W.2d 879, 888 (Minn. 2001). Multiple offenses that occur as a series of distinct or random events, rather than as part of a prearranged plan, are deemed not to be motivated by a single criminal objective. State v. Bookwalter, 541 N.W.2d 290, 295-96 (Minn. 1995) (holding that criminal sexual conduct and attempted murder offenses were not motivated by single criminal objective when defendant entered victim’s van to steal, decided to sexually assault victim after she entered the van, promised to release her, and then, as apparent afterthought, attempted to murder her); State v. Krampotich, 282 Minn. 182, 187, 163 N.W.2d 772, 776 (1968) (holding that offenses of unauthorized use of motor vehicle, simple robbery, and simple and aggravated assault not motivated by single criminal objective because not part of a “prearranged program of events,” but rather “each of the events . . . simply took place as an idea came into defendants’ heads”). The state bears the burden of showing that the offenses were not part of a single behavioral incident. State v. Williams, 608 N.W.2d 837, 841-42 (Minn. 2000).
It is evident that appellant’s offenses were motivated by the single criminal objective of forcing Ayshford to remain in the apartment. The events occurred in close proximity and were part of a plan to keep Ayshford from leaving, rather than a series of random acts.
The state claims that the crimes were not part of a single behavioral incident because the assault was not necessary to the success of the false imprisonment. But whether or not the assault was necessary, appellant chose to assault Ayshford as a means to prevent her from leaving the apartment. That he could have kept Ayshford from leaving by other means is not significant.
The state also claims that the assault “appeared to be a random event, almost an afterthought, by the appellant during the victim’s captivity.” This argument belies the rapid sequence of events. The record shows that appellant grabbed the knife almost immediately after slamming Ayshford against the kitchen counter and threatened to kill her after she disregarded his threat to kill himself. It is evident that the assault was motivated not by appellant’s desire to hurt Ayshford but by his desire to keep her from leaving. The behavior’s unity of time and place suggests that the assault was not an afterthought but part of appellant’s original plan.
Affirmed in part, reversed in part, and remanded.
* Retired judges of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Contrary to the state’s argument, premised on authority regarding prosecution costs, this court may consider appellant’s challenge to the reimbursement order despite his failure to object. See State v. Hayes, 428 N.W.2d 871, 875 (Minn. App. 1988) (concluding that challenge to imposition of defense costs may be considered on appeal as part of sentence, despite defendant’s failure to raise issue at trial), aff’d, 431 N.W.2d 533 (Minn. 1988).