This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Dennis Joseph Pearson,
Filed September 6, 2005
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
File No. 04003703
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Bridget Kearns Sabo,
Assistant Public Defender,
Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.
Appellant challenges his convictions of criminal sexual conduct and contributing to the delinquency of a child, arguing that the district court (1) abused its discretion by admitting Spreigl evidence relating to other crimes committed by appellant, and (2) erred by imposing both upward durational and upward dispositional departures to his sentence, in violation of Blakely. Appellant further argues that even if Blakely does not apply to upward dispositional departures, the district court erred because there were no substantial and compelling aggravating factors to justify the departure. In a pro se supplemental brief, appellant contends that (1) he received ineffective assistance of counsel, (2) his home was searched under an illegal search warrant, and (3) his trial should have been held in a different county. Because we conclude that the district court did not err by admitting the Spreigl evidence or by imposing an upward dispositional departure, we affirm in part. But because the imposition of an upward durational departure violated appellant’s Sixth Amendment right to a jury, we reverse in part and remand. We further conclude that appellant’s pro se arguments are without merit.
On the evening of January 15, 2004, F.F., a 15-year-old female, visited appellant Dennis Pearson’s apartment with a male friend. F.F. sat down on appellant’s couch and appellant soon offered F.F. “something to drink,” which she declined because, as she explained to him, she did not drink alcohol. Appellant persisted and F.F. eventually consumed “[a]bout four glasses” of vodka. F.F. testified that she “didn’t like [the drink, but that appellant] kept pouring more into [her] glass.” After drinking the vodka, F.F. stated that she felt sick. F.F. and her friend then left the apartment “to go buy some weed” and returned to appellant’s apartment afterwards. Appellant offered F.F. more to drink, but F.F. declined because she was not feeling well and felt like she “was about to vomit or something.” While F.F. was in the apartment, there was a pornographic movie playing that depicted “[n]aked people. . . . [h]aving sex.”
F.F. then testified to the following:
Q: Did [appellant] say anything else to you or do anything else at that time that you were sitting at the edge of the couch?
A: He sat next to me.
Q: Okay. And was he doing anything?
Q: What was he doing?
A: He was—he put his hand on my thigh and just was rubbing me, and I kept pulling his arm away.
. . . .
Q: Okay. After he was rubbing your thigh what did he do?
A: He put his hand on my belly, and there is a point he touched my breast also.
F.F. asked appellant to stop, but he refused. F.F. also testified that appellant “brought [his penis] out” and masturbated in front of her. Appellant proceeded to show F.F. photographic images of his genitalia and “bragg[ed] about it.” F.F. then vomited on appellant’s floor. F.F. testified that appellant touched her “inappropriately” and that she could feel “his fingertips going down [her] skirt,” while she was vomiting. Soon after, the police arrived and F.F. was taken to the emergency room.
Officer Tammy Persoon arrested appellant for furnishing alcohol to a minor. Officer Persoon testified that appellant was wearing a black trench coat and that his genitals were exposed. When she searched appellant, Officer Persoon found four Polaroid photographs in his front pocket. F.F. testified that the seized photographs were consistent with the ones that appellant had shown her earlier in the evening. Nearly two months later, on March 11, 2004, a warrant was issued to search appellant’s apartment for “sexually explicit material,” among other things.
By amended complaint filed March 31, 2004, the state charged appellant with one count of fourth-degree criminal sexual conduct, in violation of Minn. Stat. § 609.345, subds. 1(b), 2 (2002); two counts of fifth-degree criminal sexual conduct, in violation of Minn. Stat. § 609.3451, subds. 1(1), 2, 3 (2002); and one count of contributing to the delinquency of a child, in violation of Minn. Stat. § 260B.425, subd. 1(a) (2002). Appellant pleaded not guilty to all charges and demanded a speedy trial.
Prior to trial, the state filed a Spreigl notice, explaining that it “intend[ed] to show and will seek to prove . . . that [appellant] has been guilty of additional crimes and misconduct [in the past].” The state offered two prior offenses, from 1997 and 2001, to “show  that [appellant had] a common scheme or plan in that he seeks out young juvenile girls. He shows them Polaroid photos of his genitals, he exposes his genitals to them while talking to them, commenting on their looks.” After presentation of the state’s other witnesses, the district court found weakness in the state’s case because F.F. could not identify appellant in court. The district court also found similarity between the conduct alleged in the previous incidents, but denied admission of the 1997 incident as being too remote in time. The district court permitted introduction of evidence from the 2001 incident and allowed the female victim, R.K., to testify.
R.K. testified that appellant, wearing a trench coat with his genitals exposed, knocked on her door and “asked for someone.” When R.K. told appellant that “that person [doesn’t] live here, [appellant] started to come up the stairs towards” R.K. She ran to her father, who chased appellant away. R.K. also explained that on another occasion, she had seen appellant at the bus stop and that “he was reading a porn magazine and . . . talking about his magazine and stuff like that.” At the bus stop, appellant was wearing a trench coat and R.K. was able to see his genitals because “it kept poking out.” R.K. identified appellant in court.
A jury found appellant guilty of all counts alleged in the complaint. Appellant’s presentence-investigation report calculated the presumptive sentence for fourth-degree criminal sexual conduct to be a stayed sentence of 18 months. The state moved for an upward dispositional and a double durational sentencing departure. At sentencing, the district court noted that appellant had engaged in “consistent conduct for almost 20 years” and that his “offense conduct has now escalated.” Departing upward, the court explained:
I find that there [are] substantial and compelling circumstances to depart. I find that a dispositional departure is appropriate. [The presumptive sentence would] continue the absurdity of your past sentencing.
. . . I also find that a [durational] departure upward is also appropriate. That this is a more serious offense based on the fact that you created the vulnerability of a 15-year old victim and then you exploited it. For that reason I’m going to upwardly depart.
The court imposed a prison sentence of 24 months and a five-year supervised-release period, pursuant to the conditional-release statute. This appeal follows.
I. Spreigl Evidence
argues that the district court erred by admitting irrelevant and prejudicial
evidence relating to other crimes committed by appellant. Such evidence of other crimes or bad acts has
been characterized as Spreigl
In general, Spreigl evidence is not admissible to
prove that a criminal defendant acted in conformity with his character.
The overarching concern is that the evidence might be used for an improper purpose, such as suggesting that the defendant’s prior bad acts show that he has a propensity to commit the present bad acts, or that the defendant is a proper candidate for punishment for his past acts. Spreigl evidence should complete the picture of a defendant, not paint another picture.
Given these special concerns surrounding use of Spreigl evidence, the state bears the burden for securing its admissibility by (1) providing notice that the state intends to use the evidence, (2) clearly indicating what the evidence is being offered to prove, (3) offering clear and convincing proof that the defendant participated in the other offense, (4) proving that the Spreigl evidence is relevant and material to the state’s case, and (5) proving that the probative value of the Spreigl evidence is not substantially outweighed by its potential for unfair prejudice.
v. Washington, 693 N.W.2d 195, 200-01 (
A. Relevance and Materiality
argues that the 2001 Spreigl evidence
should not have been admitted because it was irrelevant and immaterial to the
state’s case, being wholly distinct from the current charge and not reflecting
a common plan or modus operandi. When
determining the relevancy and materiality of Spreigl evidence, the district court “should consider the issues in
the case, the reasons and need for the evidence, and whether there is a
sufficiently close relationship between the charged offense and the Spreigl offense in time, place, or modus
operandi.” State v. Courtney, 696 N.W.2d 73, 83 (
by admitting the other-crimes evidence, the district court specifically found
similarity between the 2001 incident and the charged offense. There is no question that the incidents are
sufficiently close in time and place—both having occurred in the past few years
within the city of
B. Unfair Prejudice
Appellant further argues that even
if the evidence of other crimes was marginally relevant to the case against
appellant, its prejudicial effect outweighs its probative value. As the supreme court has explained, “[e]ven relevant
and material Spreigl evidence is not
admissible if its probative value is substantially outweighed by the danger of
When balancing the
probative value against the prejudicial effect of Spreigl testimony, the district court “must consider how necessary
the Spreigl evidence is to the
state’s case. Only if the other evidence
is weak or inadequate, and the Spreigl evidence
is needed as support for the state’s burden of proof, should the [district] court
admit the Spreigl evidence.” State
v. Berry, 484 N.W.2d 14, 17 (
“Need” for other-crime evidence is not necessarily the absence of sufficient other evidence to convict, nor does exclusion necessarily follow from the conclusion that the case is sufficient to go to the jury. A case may be sufficient to go to the jury and yet the evidence of other offenses may be needed because, as a practical matter, it is not clear that the jury will believe the state’s other evidence bearing on the disputed issue.
v. State, 695 N.W.2d 109, 120 (
Here, the district court properly considered the state’s Spreigl evidence after the state presented its other witnesses. In addition, the district court specifically characterized the state’s case as “weak” because the complaining witness, F.F., “did not identify” appellant and further found that “[i]dentity [is] the central issue in this case.” While the district court did not further elaborate on its characterization of the state’s case as “weak,” the record suggests that F.F. was extremely intoxicated during the evening in question, ultimately vomiting from consuming an excessive amount of vodka. Appellant claims that his identity was never seriously in doubt because F.F. referred to him by name in her testimony and other witnesses identified the apartment in question as appellant’s. But these observations do not alter the fact that F.F. was the one who testified to appellant’s acts and that she was unable to make an in-court identification of the perpetrator. In addition, F.F.’s intoxication and its potential impact on her capacity to perceive and recall events arguably weakens her testimony, thereby making the state’s Spreigl evidence necessary in order for it to sustain its burden of proof.
In sum, because (1) the prior offense as testified to by the Spreigl witness was substantially similar to the charged offense and was therefore relevant and material to show appellant’s common scheme or plan and (2) the testimony’s prejudicial effect did not outweigh its probative value, we conclude that the district court did not abuse its broad discretion by admitting the state’s Spreigl evidence.
II. Upward Durational Departure
Appellant next argues that the
district court’s upward durational departure
warrants reversal because it was based on a fact found by the court—and not the
jury—in violation of Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). As a preliminary matter, although appellant
was found guilty and sentenced before Blakely
was decided, he is entitled to a review of his sentence in light of Blakely because it is a new rule of
constitutional criminal procedure that was announced while appellant’s direct
appeal was pending. See
O’Meara v. State, 679 N.W.2d 334, 339 (
In Blakely, the Supreme Court held that the
sentencing judge may not impose a sentence greater than “the maximum sentence
[that may be imposed] solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.” 124
to upward durational departures under the Minnesota Sentencing Guidelines. State
v. Shattuck, ___ N.W.2d ___, ___, 2005 WL 1981659, at *8 (
Here, the district court based its upward durational departure on its finding that appellant “created the vulnerability of a 15-year old victim and then  exploited it.” Because appellant did not admit that F.F. was a particularly vulnerable victim or waive his right to a jury determination of that aggravating factor, appellant’s sentence violated his Sixth Amendment rights under Blakely. We therefore reverse and remand for sentencing in accordance with the dictates of Blakely.
III. Upward Dispositional Departure
A. Application of Blakely
argues that the district court’s upward dispositionaldeparture
similarly warrants reversal because it was based on the district court’s
finding—and not the jury’s finding—that appellant was not amenable to
probation, thereby violating Blakely. Again, the application of Blakely
presents a constitutional issue, which we review de novo.
At sentencing, the district court made the following finding of unamenability to probation:
I also take into consideration, not only your prior record . . . I also consider that you have had a number of opportunities to try and get this together. You’ve had a number of probation opportunities, and . . . [the] presentence investigation report is littered with revocations. I also take into account that you were on probation when this offense occurred, for three offenses I believe, which to me borders on absurdity.
Based on these factors, the court imposed an upward dispositional departure.
argues that the district court’s finding of unamenability was a “fact” within
the meaning of Blakely. But this court has already held that,
unlike its application to durational departures, Blakely does not apply to
upward dispositional departures. State v. Hanf, 687 N.W.2d 659, 665-66
(Minn. App. 2004), review granted (
[A]n offender’s amenability or unamenability to probation is not a “fact,” within the meaning of Apprendi, that increases the offender’s penalty. A dispositional departure requiring an offender to go to prison is undoubtedly a greater penalty than probation. But an offender’s unamenability to probation is a judgment reached after consideration of a series of facts. It is not a “fact necessary to constitute the crime,” but rather a strictly offender-related conclusion.
Nonetheless, appellant urges that the distinction we have made between offense-related facts and offender-related facts is without support in the caselaw. Appellant also asks this court to “reconsider” our previous rulings on the issue of dispositional departures in light of Blakely. Because the supreme court has already granted review in Hanf, we decline appellant’s invitation to reconsider our decision. And because the upward dispositional departure imposed here fits within the Hanf mold of dispositional departures based on offender-related characteristics rather than offense-related aggravating factors, we reject appellant’s Blakely challenge to his dispositional departure and affirm the district court in that respect.
B. Substantial and Compelling Aggravating Factors To Depart Upward
that even if Blakely does not apply
to upward dispositional departures, there are no substantial and compelling
aggravating factors to support the departure imposed here. The decision to depart from the sentencing guidelines rests within the district court’s
discretion and will not be reversed absent a clear abuse of that
discretion. State v. Givens, 544 N.W.2d 774, 776 (
The procedure for reviewing an upward departure is well established:
1. If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed.
2. If reasons supporting the departure are stated, this court will examine the record to determine if the reasons given justify the departure.
3. If the reasons given justify the departure, the departure will be allowed.
4. If the reasons given are improper or inadequate, but there is sufficient evidence in the record to justify departure, the departure will be affirmed.
5. If the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.
State v. Geller, 665 N.W.2d 514, 516 (
Appellant argues that the district court did not properly consider all the Trog factors. But Trog does not mandate an exhaustive evaluation of all its factors on the record. See id. (recognizing factors that a district court may consider in granting a dispositional departure). Moreover, even if the reasons given here were improper or inadequate, if “there is sufficient evidence in the record to justify departure, the departure will be affirmed.” Williams, 361 N.W.2d at 844. A review of the record reveals that there is more than enough evidence to conclude that appellant is unamenable to probation, especially given appellant’s criminal history and numerous probation violations. Accordingly, the district court did not abuse its discretion by dispositionally departing upward.
IV. Pro Se Arguments
In his pro se supplemental brief, appellant claims that (1)
he received ineffective assistance of counsel at trial, (2) his home was the
subject of an illegal search warrant, and (3) his trial should have been moved
to a different county because of “prejudice.”
Appellant offers these points with little or no citation to the record
or applicable law. See State v. Krosch, 642 N.W.2d 713, 719 (
A. Ineffective Assistance of Counsel
argues that he received ineffective assistance of counsel at his trial “because
of [his attorney’s] overall lack of diligence, communication, thoroughness and
preparation.” Whether a representation
rises to the level of ineffective assistance of counsel is one of
constitutional law, which we review de novo.
State v. Blom, 682 N.W.2d 578,
In order to meet his burden in an ineffective-assistance-of-counsel claim, appellant
must affirmatively prove that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Gates v. State, 398 N.W.2d
558, 561 (
At the sentencing hearing, appellant listed a number of perceived defects in the legal representation he received, including his attorney’s (1) lack of communication, (2) lack of investigation, (3) failure to explain “the seriousness of” the amended complaint, (4) failure to challenge the evidence seized from his apartment as an illegal search, and (5) failure to give an opening statement or cross-examine certain witnesses. Appellant has broadly characterized his counsel’s representation as “incompetent.” Addressing appellant at sentencing, the district court explained, “I observed what went on in this courtroom. If I had ever thought, even for one moment[,] that you were not being effectively represented, I would have stepped in.” In response to appellant’s challenge to his attorney’s trial strategy, the district court said, “if I had represented you, I would have not opened. Not under the circumstances. I would not have cross-examined [F.F.] under the circumstances.”
We agree. Many of appellant’s allegations describe the kind of “trial tactics which lie within the proper discretion of trial counsel and will not be reviewed later for competence.” Voorhees, 596 N.W.2d at 255. In addition, a review of the record before us reveals that appellant’s other ineffective-assistance claims are unsubstantiated and without merit.
B. Search Warrant
Appellant also claims that his apartment
was searched pursuant to an illegal search warrant and questions whether the
items seized were “contaminated” or whether there was probable cause for a
search warrant. This court reviews a district court’s determination of
probable cause to issue a search warrant to ensure that there was a substantial
basis for the issuing judge to conclude that probable cause existed. State
v. Harris, 589 N.W.2d 782, 787-88 (
district court issued a search warrant on March 11, 2004, almost two months
after the alleged incident in this case.
Probable cause on which a valid search warrant may be based must exist
at the time the warrant is issued, not at some earlier time. United
States v. Steeves, 525 F.2d 33, 37 (8th Cir. 1975); see also Gerdes v. State, 319 N.W.2d 710, 713 (
The issuing judge found probable cause to search appellant’s home because the property (1) “was used as [a] means of committing a crime” and (2) “constitute[d] evidence which tend[ed] to show a crime ha[d] been committed, or tend[ed] to show that a particular person ha[d] committed a crime.” The warrant sought to retrieve, among other things, evidence depicting “sexually explicit material.” Because certain pornographic images were implicated in the case against appellant, a “fair probability [existed] . . . that contraband or evidence of a crime [would] be found” in appellant’s home. Zanter, 535 N.W.2d at 633. In addition, any concerns about spoliation or contamination of evidence are remedied by the fact that appellant’s apartment was not occupied from the time he was arrested until the warrant was executed because appellant himself was incarcerated. Appellant’s claim that maintenance workers were inside his property during that time is unavailing.
appellant asserts that his trial in
appellant did not request a change of venue before the district court, the issue
is not properly before this court. See Roby v. State, 547 N.W.2d 354, 357
(Minn. 1996) (explaining that appellate courts will generally not consider
matters not argued and considered by the district court). But in criminal cases, this court may consider
issues raised for the first time in pro
supplemental briefs. See
Dale v. State, 535 N.W.2d 619, 624 (
Affirmed in part, reversed in part, and remanded.
 F.F.’s brother previously spoke to F.F. on the telephone and testified that she was “scared” and “crying.” In response, he went to appellant’s floor and telephoned the police, who arrived 10-15 minutes later.
 In addition, the victim of the 2001 incident also testified that appellant appeared at her private residence naked and that he “started to come up the stairs toward[s]” the victim.
Durational departures are based on characteristics of the
charged offense. State v. Chaklos,
528 N.W.2d 225, 228 (
 At his sentencing hearing on June 2, 2004, appellant made it clear that he intended to appeal his sentence on a number of grounds.
 The district court also stated that appellant “created a vulnerability by giving [the victim] alcohol, by repeatedly filling her glass and encouraging her to drink it, and then once she was vulnerable and helpless, [appellant] exploited that for [his] own sexual gratification.”
 Dispositional departures are based on characteristics of the offender himself. See generally Chaklos, 528 N.W.2d at 228.
Hanf’s petition for further review was stayed pending final disposition in Shattuck and State v. Allen, No. A04-127, 2004 WL 1925881 (Minn. App. Aug. 31, 2004),
review granted (
 Appellant argues that Hanf is not binding on this court because the supreme court has granted further review. But until the supreme court issues its decision, we will continue to follow the holding announced by this court in Hanf for purposes of consistency.
 At the sentencing hearing, appellant alleged his counsel “spent less than 25 minutes with [him] before the original trial date” and had “very little communication” with appellant during the trial on April 6-9, 2004.