This opinion will be unpublished and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

A04-1669

 

State of Minnesota,

Respondent,

 

vs.

 

Omar Ahmad,

Appellant.

 

Filed September 6, 2005

Affirmed

Dietzen, Judge

 

Olmsted County District Court

File No. K8-03-3897

 

Raymond F. Schmitz, Olmsted County Attorney, 151 Southeast Fourth Street, Rochester, MN 55904; and

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Elizabeth M. Richter Scheffer, Assistants Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

            Appellant challenges his conviction of fourth-degree criminal sexual conduct, arguing that the district court abused its discretion in various evidentiary rulings, the prosecutor engaged in misconduct, the jury instructions were erroneous, and his sentence was improperly computed, and violated Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Because we conclude that the district court properly applied the law and that the claimed errors were not an abuse of discretion and did not deprive appellant of a fair trial, we affirm. 

FACTS

            On September 21, 2003, K.H. rode her bicycle to a nearby convenience store to buy a box of doughnuts.  Once inside, K.H. observed appellant Omar Ahmad working behind the cash register.  Ahmad came over to K.H., put his arm around her, and kissed her on the cheek.  K.H. walked over to a nearby shelf, and Ahmad again put his arms around her and then kissed her on the mouth.  Ahmad then grabbed K.H.’s breast and put his hand in her groin area.  K.H. eventually pushed him away and left the store with a box of doughnuts and some candy, which Ahmad gave to her for free.

            K.H.’s parents were notified and called the police.  Officer Tracy Nepper arrived at K.H.’s residence and took a statement from her.  Nepper then went to the convenience store and questioned Ahmad, who verified that K.H., along with many other patrons, had been in the store that day.  Police investigator Anthony Teal subsequently questioned K.H. and Ahmad at the police station.  Ahmad stated that he gave K.H. candy and doughnuts and added that one or two other patrons were in the store at that time but he did not know their names.   

            Ahmad was charged with criminal sexual conduct in the fourth degree, in violation of Minn. Stat. § 609.345, subd. 1 (2002).  At trial, the prosecutor asked Nepper, “In cases where there’s no physical evidence like we have here . . . what about [K.H.’s] statements do you look to to determine whether or not you think that this is a credible story or not?”  Without mentioning K.H.’s statements, Nepper answered that she generally considered a statement’s clarity and its chronological order when determining credibility.  The prosecutor then asked Teal, “What were some things about the defendant’s statement that corroborated [K.H.’s] testimony?”  Teal responded that Ahmad’s statements regarding the candy and doughnuts that he gave to K.H. served as corroboration and added that the statements “corroborated that I believe that she was actually there.” 

            Two witnesses testified in Ahmad’s defense and stated that they were in the store and did not observe Ahmad touching K.H. inappropriately.  During cross-examination, the prosecutor asked witness Rodolfo Nonalaya if he considered Ahmad to be a friend.  Nonalaya answered in the affirmative and then added: “In all this time I have known him he’s a very straight, honest person.”  The prosecutor then asked Nonalaya, over objection, if he was aware of Ahmad’s four federal bribery convictions, and Nonalaya answered in the negative.

Additionally, while outside of the jury’s presence, the prosecutor stated her intent to impeach Nonalaya under Minn. R. Evid. 608(b) with specific instances of conduct that he manufactured false green cards for Hispanic immigrants.  Evidence tending to show that Nonalaya committed the specific instances of conduct came in two forms.  First, before trial, the district court dismissed a prospective juror who apparently worked in law enforcement and had knowledge of an investigation involving Nonalaya allegedly supplying an international driver’s license to another person.  Second, the prosecutor stated her intention to cross-examine Nonalaya on specific instances of conduct from June 2003 and from statements he made the day before trial that he manufactured false green cards in the past.  The district court found the evidence to be probative and allowed the questioning.  Before the jury, the prosecutor asked Nonalaya if he provided illegal green cards to immigrants, and he denied the accusation.      

The second defense witness, Steve Sunalla, testified that Ahmad’s attorney at the time of the initial investigation told him not to tell anyone about what he observed in the store.  The state then called the attorney as a witness to rebut Sunalla’s claim that the attorney told Sunalla not to talk.  The attorney testified that he remembered having a series of meetings with Sunalla before trial but did not recall advising him not to talk to the police. 

            Before closing arguments, Ahmad’s counsel asked him if he understood that he did not have to testify, and such a failure to testify would not be considered by the jury.  Ahmad, through an interpreter, stated that he understood and further said that he did not wish to testify.  Before the jury retired to deliberate, the district court read 10 Minnesota Practice, CRIMJIG 3.17 (1999):

            The State must convince you by evidence beyond a reasonable doubt that the defendant is guilty of the crime charged.  The defendant has no obligation to prove innocence.  The defendant has the right not to testify.  This right is guaranteed by the federal and state constitutions.  You should not draw any inference from the fact that the defendant has not testified in this case.

 

During closing argument, the prosecutor stated to the jury that “K.H. has no reason to lie here” and “[s]he’s gotten nothing out of this.”  On rebuttal argument, the prosecutor said: “What’s reasonable here is that [K.H.] is telling you the truth.  She’s being honest.  She has nothing to hide.  She has no reason to lie.” 

Ahmad was convicted of fourth-degree criminal sexual conduct and was sentenced to 51 months in prison, the presumptive sentence for an offense with a severity level of six committed by an offender with five criminal-history points.  See Minn. Sent. Guidelines IV, V.  The district court assigned four criminal-history points based on Ahmad’s four convictions in September 2001 to the federal crime of bribery of a public official.  The remaining criminal-history point was assigned because Ahmad was on supervised release for the federal offenses at the time of the incident with K.H.  This appeal followed.

D E C I S I O N

I.

Evidentiary Rulings

             Ahmad assigns error to three district court evidentiary rulings, which we will review in turn.  First, Ahmad argues that the state impermissibly introduced evidence of his four federal bribery convictions through impeachment of Nonalaya’s testimony on cross-examination.  Ahmad was convicted under 18 U.S.C. § 201(b)(1)(A) (1994), which punishes anyone who “corruptly gives, offers or promises anything of value to any public official” to influence an official act.  A district court’s ruling on the impeachment of a witness by prior conviction is reviewed under an abuse-of-discretion standard.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).

            Minn. R. Evid. 608(b) (2002) provides that, in the discretion of the district court, if prior instances of conduct are probative of truthfulness or untruthfulness, they may be inquired into on cross-examination of a witness.  The supreme court has established a three-part test for admitting specific instances of conduct under rule 608(b).  State v. Fallin, 540 N.W.2d 518, 522 (Minn. 1995).  First, the prosecution must give the defense notice of its intent to cross-examine regarding specific instances of conduct.  Id.  Second, the prosecution must provide evidentiary support justifying the cross-examination.  Id.  Third, the prosecution must establish “that the probative value of the cross-examination outweighs its potential for creating unfair prejudice to the defendant.”  Id. 

We conclude that the cross-examination was proper under the Fallin test.  First, the prosecutor gave the defense notice of its intent to impeach using the bribery convictions.  Second, given that Ahmad’s federal guilty pleas were in the record, there is sufficient evidentiary support justifying the cross-examination.  Third, the district court indicated, and the record reflects, that the convictions were more probative than prejudicial and that they concerned Ahmad’s character for truthfulness or untruthfulness. 

            Next, Ahmad contends that he deserves a new trial because the prosecutor improperly impeached Nonalaya with his own prior specific instances of conduct, namely, that he manufactured false green cards for Hispanic immigrants.  Ahmad argues that the prosecutor presented no evidence to show that Nonalaya committed the specific instances of misconduct.  The law requires that the prosecutor must possess a reasonable, good-faith basis—a notion very close to probable cause—to believe the conduct occurred before it may be inquired into on cross-examination.  Fallin, 540 N.W.2d at 521 n.3. 

            The prosecutor asked Nonalaya three times if he provided green cards to illegal immigrants, and each time he denied the accusation.  The state contends that there is adequate support in the record to conclude that the prosecutor had a good-faith basis for the cross-examination.  The state argues that (1) the prospective juror’s knowledge of the law enforcement investigation involving Nonalaya; (2) the prosecutor’s statements about Nonalaya’s prior instances of conduct in June 2003; and (3) Nonalaya’s statements the day before trial about his conduct constitute a good-faith basis.

            We conclude that it was within the district court’s discretion to allow the prosecutor’s questioning under rule 608(b).  Even if it were error, the record supports the conclusion that the error was harmless.  See Minn. R. Crim. P. 31.01 (“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”).  Here, the allegation of providing green cards to illegal immigrants was brought up on cross-examination, and was denied by Nonalaya.  In essence, the questioning merely challenged the credibility of Nonalaya.  Because there is no indication in the record that the jury convicted Ahmad based on improper impeachment of Nonalaya, we conclude that the district court’s error, if any, was harmless.  

Finally, Ahmad argues that his right to a fair trial was denied when his former attorney was called by the state as a rebuttal witness in violation of the attorney-client privilege and work-product doctrine.  An attorney cannot, without the client’s consent, “be examined as to any communication made by the client to the attorney or the attorney’s advice given thereon in the course of professional duty . . . .”  Minn. Stat. § 595.02, subd. 1(b) (2002) (emphasis added).  The attorney-client privilege is strictly construed, and Ahmad bears the burden to produce facts necessitating the privilege’s existence.  Kobluk v. Univ. of Minn., 574 N.W.2d 436, 440 (Minn. 1998). 

Ahmad did not object to the admission of his former attorney’s testimony and, therefore, waived his right to appellate review of the alleged error, absent the existence of plain error.  See Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996).  According to the plain-error test, an appellate court reviews whether (1) there was error; (2) that was plain; and (3) the error affected substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  The defendant’s burden of persuasion on the third prong “is satisfied if the error was prejudicial and affected the outcome of the case.”  Id. at 741.  If the plain-error test is met, an appellate court assesses whether it should address the error in the interests of fairness and integrity of judicial proceedings.  Id. at 740.

            Ahmad’s challenge fails under plain-error review because no error was committed.  The attorney-client privilege only protects communications made between the attorney and the client, not an attorney’s communications to a third-party witness.  Ahmad concedes that his former attorney was not directly asked about communications with Ahmad, but contends that the attorney implicitly announced to the jury that Ahmad and Sunalla were lying.  But the record does not support this contention.  Since no error occurred, it is not necessary for us to address the other two Griller factors. 

            Ahmad’s argument that the work-product doctrine was violated—because his former attorney was questioned regarding his conversations with, or thoughts about, potential witnesses—is also unavailing.  The intent of the work-product doctrine is to ensure effective representation through the protection of an attorney’s files and mental impressions in the face of a discovery demand from an opposing party.  In re Murphy, 560 F.2d 326, 334 (8th Cir. 1977).  There is no indication here that Ahmad’s former attorney’s files or mental impressions regarding the trial were at issue when he was called as a witness to rebut a statement by another witness.  The admission of the attorney’s testimony therefore does not constitute plain error. 

II.

Prosecutorial Misconduct

On review of a prosecutorial-misconduct claim, appellate courts reverse if the misconduct, “when considered in light of the whole trial, impaired the defendant’s right to a fair trial.”  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  “Misconduct is deemed harmful if it played a significant or substantial role in persuading the jury to convict.”  State v. VanWagner, 504 N.W.2d 746, 749 (Minn. 1993).  Misconduct does not impair a defendant’s right to a fair trial if it is harmless beyond a reasonable doubt.  Id.  “The error and its impact are to be examined within the context of the record as a whole, considering the strength of the state’s evidence and the weaknesses of any defense evidence.”  Id.  

            Ahmad argues that the prosecutor committed misconduct by eliciting vouching testimony from Nepper and Teal, and also by vouching for the credibility of K.H. during closing argument.  Vouching testimony is testimony that another witness is telling the truth or testimony that one believes a witness over another.  See State v. Ferguson, 581 N.W.2d 824, 835 (Minn. 1998) (“[O]ne witness cannot vouch for or against the credibility of another witness.”).  “The concern . . . is that the credibility of a witness is for the jury to decide, not a witness.”  State v. Koskela, 536 N.W.2d 625, 630 (Minn. 1995).  In Koskela, the supreme court faulted portions of a police officer’s testimony that stated: “I had no doubt whatsoever that I was taking a truthful statement.”  Id.   

            Ahmad did not object to the testimony of Nepper or Teal, and we conclude that it was not plain error under the Griller test.  First, Ahmad contends that the prosecution elicited vouching testimony on rebuttal examination of Nepper when she was asked what factors she considers when determining if a victim’s statements are credible in the absence of physical evidence.  But this question was in response to a question-and-answer elicited by defense counsel on the same topic during cross-examination.  Nepper’s response to the prosecutor’s question did not refer to K.H. but instead stated generically that she analyzes the detail, clarity, and chronological order of a statement in order to find it credible.  As a result, we conclude that Nepper’s testimony was in response to cross-examination and did not constitute vouching. 

Second, Ahmad contends that the prosecutor elicited vouching testimony when Teal was asked what characteristics in Ahmad’s statement corroborated K.H.’s statement, and Teal responded that Ahmad confirmed that a girl had been in the store to buy doughnuts, the girl was wearing pajama pants, and Ahmad gave her candy.  Teal further stated that those facts corroborated K.H.’s statement, so he believed that K.H. was in the store.  On this record, the testimony does not amount to plain error, or if it did, it did not affect Ahmad’s substantial rights because the jury was already aware of the content of Ahmad’s corroborative statements made to the police officers.  Specifically, Nepper had previously testified that Ahmad told her that a girl fitting K.H.’s description was in the store and that she wanted to buy doughnuts.  There is, thus, no indication that this testimony deprived Ahmad of his right to a fair trial. 

            As for the prosecutor’s closing argument, Ahmad did not object and did not request a curative instruction.  “A defendant’s failure to object to the prosecutor’s statements implies that the comments were not prejudicial.”  State v. Ives, 568 N.W.2d 710, 713 (Minn. 1997).  See also Rairdon, 557 N.W.2d at 324 (“Failure to object or to seek curative jury instructions weighs heavily against granting the remedy of a new trial.”).  The prosecutor’s closing arguments should not distract the jury from its role of deciding whether the state met its burden of guilt beyond a reasonable doubt.  State v. Duncan, 608 N.W.2d 551, 555 (Minn. App. 2000), review denied (Minn. May 16, 2000).  “In determining whether prosecutorial misconduct was prejudicial, we must consider the [closing] argument as a whole.”  Id. at 556. 

Here, Ahmad objects to three portions of the closing argument: (1) the statement that “K.H. has no reason to lie here”; (2) the assertions that “[K.H.] has nothing to hide.  She has no reason to lie”; and (3) the allegation that Nonalaya and Sunalla were willing to lie to help Ahmad.  But the prosecutor’s argument closely tracked the district court’s jury instructions that in determining witness credibility it was appropriate to weigh any relationship to the parties, the ability to remember finer points of the case, and any impeachment of the witness’s testimony.  On the whole, the argument—because it attempted to point out the respective weights accorded to each side’s testimony and paralleled the jury instructions—did not result in plain error and did not unduly prejudice Ahmad so as to entitle him to a new trial.

III.

Jury Instructions

            Ahmad argues that the district court erred when it instructed the jury not to draw an inference from the fact that Ahmad did not testify at trial because he did not request the instruction.  The state concedes that the district court erred by not seeking Ahmad’s permission to give the instruction.  But because Ahmad failed to object to the instruction at trial, we review his argument under the plain-error standard.  See Griller, 583 N.W.2d at 740 (stating plain-error test).  Plain error is prejudicial “if there is a reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.”  Id.at 741 (quotation omitted). 

            Here, the error, even if it was plain, did not have a significant effect on the jury’s verdict because Ahmad’s own attorney referenced the jury instruction at closing argument:

            Also you will hear a definition about the defendant’s right not to testify or you did hear that, and under our system the defendant doesn’t have to testify.  Mr. Ahmad didn’t.  And it’s not for you to decide why he did or why not, and most important it’s not for you to hold that against him in any way.

 

Therefore, even assuming that the district court committed plain error in giving the instruction, Ahmad’s counsel highlighted the instruction to the jury that it should draw no negative conclusions from the fact that Ahmad did not testify.  Because defense counsel conveyed the same caution contained in the jury instruction, we conclude that the instruction did not significantly affect the verdict.  If the jury were prejudiced, there is a reasonable likelihood that the prejudice stemmed from the attorney’s argument, which occurred after the instruction was given.  We therefore conclude that the giving of the no-adverse-inference jury instruction does not entitle Ahmad to a new trial. 

IV.

Sentencing

            Ahmad argues that his conviction should be reversed or his sentence adjusted on two grounds: the erroneous assignment of four criminal-history points for his prior federal bribery convictions and one custody-status point because Ahmad was on supervised release at the time of the offense.  The district court’s determination of a defendant’s criminal-history score will not be reversed absent an abuse of discretion.  State v. Stillday, 646 N.W.2d 557, 561 (Minn. App. 2002).  First, Ahmad claims that the four bribery convictions arose from a single course of conduct and may not result in four criminal-history points. 

            State law prohibits the assignment of multiple sentences for offenses that were committed as part of a single behavioral incident.  See Minn. Stat. § 609.035, subd. 1 (2002).  “Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of the particular case.”  State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995).  To answer this factual question, courts look at the factors of “time and place as well as whether the offenses were motivated by a desire to obtain a single criminal objective.”  State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994).

            In August 2000, Ahmad was indicted in federal court on five counts of bribery of a public official; he subsequently pleaded guilty to four counts.  Ahmad’s unlawful conduct began in June 1996, when he gave objects of value to an employee of the Department of Immigration and Naturalization Service (INS).  According to the federal presentence investigation, Ahmad was attempting to bribe the INS official so that various nonresident aliens would pass their citizenship exams.  Beginning on November 26, 1996, and continuing through his arrest on December 11, 1996, Ahmad supplied the INS agent with increasing amounts of money and other gifts in return for the agent’s assistance in helping the aliens pass citizenship exams, obtain work permits, and obtain citizenship exam appointment letters.

            We agree with the district court that the federal offenses did not arise from a single behavioral incident.  According to the factors established by the supreme court in Hawkins, the time between the offenses and the criminal objectives are sufficiently separated so as to constitute distinct behavioral incidents.  Ahmad began the course of conduct that subsequently formed the federal indictments in late November 1996, and that conduct continued for more than two weeks.  The supreme court has held that a defendant’s sale of drugs three times within one week did not constitute a single offense.  State v. Gould, 562 N.W.2d 518, 521 (Minn. 1997).  While Ahmad’s bribery solicitations generally occurred in the same physical location, his actions were broad and varied enough to support a determination that he was not motivated by a single criminal objective.  The federal presentence investigation indicates that Ahmad mentioned the names of 11 aliens to the INS agent and requested the agent’s help with citizenship exams, citizenship letters, and work permits.  These actions reflect disparate criminal objectives.  It was therefore within the district court’s discretion to assign four criminal-history points to Ahmad for his four federal bribery convictions.

            Ahmad also argues that the district court impermissibly assigned him a custody-status point based on the finding that he was on federal supervised release at the time of the charged offense.  A custody-status point may be assigned if a defendant is on supervised release pending sentencing after a guilty plea in a felony case.  Minn. Sent. Guidelines II.B.2.a. 

            Ahmad argues that the district court made a factual finding as to the existence of a custody-status point when it adopted the recommendation of the state’s presentence investigation, contrary to the rule announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  In Blakely, the United States Supreme Court held that, besides the fact of a prior conviction, a judge is proscribed from finding additional facts—facts not admitted by the defendant or submitted to the jury—to impose a sentence above the statutory maximum.  Id. at 2537.  But we have concluded that the determination of a custody-status point is analogous to a prior conviction, which is not within the purview of BlakelyState v. Brooks, 690 N.W.2d 160, 163 (Minn. App. 2004), review granted (Minn. Mar. 15, 2005).[1] 

Ahmad contends that Brooks was wrongly decided and questions that decision’s precedential value because the supreme court has granted further review.  Although proceedings in Brooks are stayed, there is no present indication that Brooks is not good law.  We follow the logic of Brooks for purposes of consistency, holding that Blakely does not apply to custody-status points and leave the task of further interpreting Brooks to the supreme court.  Cf. Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (observing that task of extending a case should fall to supreme court or legislature, not to court of appeals), review denied (Minn. Dec. 18, 1987).         

We reject all of Ahmad’s arguments for a new trial and affirm his conviction and sentence. 

Affirmed.



[1] The supreme court granted review in Brooks and stayed the proceeding pending final disposition in State v. Allen, No. A04-127 (Minn. App. Aug. 31, 2004), review granted (Minn. Nov. 16, 2004).  State v. Brooks, A03-2050, slip op. at 1 (Minn. Mar. 15, 2005) (order).