This opinion will be unpublished and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,
Jerry Wayne Gerrard,
Filed March 15, 2005
in part, reversed in part, and remanded
Mille Lacs County District Court
File No. K2-03-1007
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Janice Kolb, Mille Lacs County Attorney, Mille Lacs County Courthouse, 635 Second Street Southeast, Milaca, MN 56353 (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.
Appellant Jerry Wayne Gerrard was convicted of first-degree criminal sexual conduct for conduct involving child victim C.G. in violation of Minn. Stat. § 609.342, subd. 1(a), (g) (1996). The district court sentenced appellant to 244 months, an upward durational departure from the presumptive sentence of 120 months, based on a finding that appellant was a patterned sex offender. Appellant challenges his conviction, arguing that he was deprived of a fair trial because of prosecutorial misconduct; he also challenges his sentence, relying on Blakely v. Washington, 124 S. Ct. 2531 (2004).
While the record does not support a finding of prosecutorial misconduct, we conclude that the district court erred in admitting hearsay testimony, but that this error was harmless and did not deprive appellant of his right to a fair trial. We therefore affirm appellant’s conviction. On the issue of sentencing, we reverse and remand to the district court for sentencing in accordance with Blakely.
1. Evidentiary Issues
“Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that the appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).
Appellant argues that the prosecutor committed prejudicial misconduct by eliciting testimony from the police investigator that a second child, A.G., told the investigator that appellant had attempted to force her to perform oral sex. Appellant identifies two problems with this evidence: (1) it was inadmissible evidence of prior bad conduct for which the state had not given a Spreigl notice; and (2) it was inadmissible hearsay.
We first note that the district court ruled on the use of this testimony and permitted the limited question and answer. Because the district court permitted the state to use this testimony, we do not view this as a matter of prosecutorial misconduct, but rather as an evidentiary issue.
We further note that appellant was also charged with attempted first-degree criminal sexual conduct with A.G. based on this incident. When A.G. later refused to testify about the incident at trial, the state dismissed the charges involving A.G. At the point in the trial where the statements were admitted, they were part of the state’s case in chief against appellant and as such were not evidence of other bad acts.
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R. Evid. 801(c). An investigator’s statement made as background to explain the investigation of the charges against a defendant is generally not hearsay. See State v. Litzau, 650 N.W.2d 177, 182 (Minn. 2002); see also State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994) (stating “police officer testifying in a criminal case may not, under the guise of explaining how [the] investigation focused on defendant, relate hearsay statements of others” (quotation omitted)).
Here, we conclude that the investigator’s testimony went beyond a mere explanation of his actions and was thus inadmissible hearsay. But because appellant did not object at the time, the district court’s admission of the evidence is reviewed for plain error. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). “Plain error” is error, which is plain and that affects substantial rights. State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002). Even if this standard is met, the district court’s evidentiary errors are a basis for reversal only if “those errors had the effect of depriving the defendant of a fair trial.” Litzau, 650 N.W.2d at 182.
The exchange here was limited and the declarant, A.G., testified at trial and was subject to cross-examination. When A.G. testified, she was asked if appellant wanted her to do anything and she said, “No.” No other reference was made to this allegation, it was not used by either party during arguments, and the charges of attempted first-degree criminal sexual conduct were dismissed. Under these circumstances, we conclude that although the district court erred in admitting the hearsay statement, the error was harmless and appellant was not deprived of his right to a fair trial. We therefore affirm the conviction.
Appellant was sentenced to 244 months, an upward durational departure from the presumptive sentence of 120 months, based on the district court’s finding that he was a patterned sex offender. Appellant argues that the district court erred by imposing this upward durational departure without jury findings, based on Blakely v. Washington, 124 S. Ct. 2531 (2004).
The Minnesota Supreme Court has affirmed the application of Blakely to the state sentencing guidelines. State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004). Because, under the reasoning of Blakely, appellant should not have been sentenced to an upward departure from the presumptive sentence based on findings made by the district court rather than a jury, we reverse his sentence and remand to the district court for sentencing in accordance with Blakely.
Affirmed in part, reversed in part, and remanded.