This opinion will be unpublished and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
State of Minnesota,
Richard Raymond Chauvin,
Mille Lacs County District Court
File No. K3-04-488
Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Jan Kolb, Mille Lacs County Attorney,
John M. Stuart, State Public Defender, Benjamin J. Butler,
Assistant State Public Defender,
Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Willis, Judge.
TOUSSAINT, Chief Judge
This expedited appeal is from a sentence imposed for theft by swindle, committed in violation of Minn. Stat. § 609.52, subd. 2(4) (2002). Appellant Richard Chauvin challenges a sentence departure imposed based on a finding by the jury. Chauvin has also filed a motion to strike portions of the state’s brief, and the state has filed a response. Because we conclude there was no error in submitting the sentencing issue to the jury, we affirm. The motion to strike is denied.
Chauvin was charged with theft by swindle and driving after revocation. The complaint alleged that Chauvin flagged
down Donald Erlandson, an 80-year-old resident of the town of
The following day, the Erlandsons received another call from a man claiming to be a state trooper and stating he was bringing Chauvin’s wife to Isle with money but that another $600 was needed. This request was refused, and the Erlandsons’ daughter called the police.
trial, the prosecutor filed a notice that the state would seek an enhanced
sentence under the career-offender statute and under the sentencing guidelines
based on the aggravating factor for crimes committed against victims who are
particularly vulnerable due to age. See
the first day of trial, the prosecutor notified the court that it was seeking
an upward departure that, under Blakely,
might require a jury determination. The
court decided to bifurcate the trial, with the jury being recalled to address
the sentencing issue(s) if it found Chauvin guilty. After the jury was selected, the trial court
questioned Chauvin about his understanding of his right to a jury determination
on the sentencing issues, and Chauvin’s attorney put on the record his client’s
decision not to waive a jury determination, and the defense position that “a
sentencing jury is [not] authorized under
Don Erlandson was 80 years old
at the time of the offense. Carol
Erlandson was 75 years old. As the
prosecutor pointed out in closing argument in the first phase of the trial, the
Erlandsons were trusting people who had lived their entire lives in the small
After the jury found Chauvin guilty of theft by swindle, the trial court informed the jury that there would be a “second stage” of the trial, which it did not explain in detail, leaving the details until after the jury would be called back into session. The attorneys and the court then discussed possible jury instructions on the aggravating factors, as well as the “special interrogatories” to submit to the jury. The career-offender statute posed a number of problems, however, and ultimately, after a weekend adjournment, the state withdrew the career-offender statute as a departure factor.
The trial court instructed the jury on what they had to decide under the particular-vulnerability aggravating factor. No new evidence was presented, either by the state or by the defense, and in her argument to the jury the prosecutor used a predator-prey analogy to argue that Chauvin took advantage of the Erlandsons’ vulnerability to the swindle. The prosecutor told the jury they would have to decide whether the Erlandsons were “like those gazelles or those antelopes out in the wild” who were vulnerable to the attacks of the lion. She argued that Chauvin picked the Erlandsons out because of the weakness he saw in them, and pointed out that Chauvin addressed Don Erlandson by his name when he approached him. The defense objected to the predator-prey argument.
After a defense closing argument and a prosecution rebuttal, the jury returned its decision, finding the Erlandsons were vulnerable adults. The trial court sentenced Chauvin to an upward durational departure of 48 months, or double the presumptive sentence, based on the jury finding.
D E C I S I O N
Chauvin argues that the trial court’s sentencing-jury proceeding was unauthorized by any rule or statute and was therefore extra-legal. He also argues that he was denied due process because the offense for which he was sentenced, which included the victim-vulnerability aggravating factor, was not charged in the complaint. He also argues that the prosecutor committed prejudicial misconduct in her closing “sentencing” argument, and that the state did not prove beyond a reasonable doubt that the Erlandsons were particularly vulnerable.
Chauvin argues that the sentencing-jury proceeding initiated by the trial court was extra-legal, in that, although a jury sentencing determination may have been mandated as a matter of constitutional principle by Blakely, it was not authorized in practice by any rule or statute. Chauvin’s argument relies to a large degree on the supreme court’s decision in State v. Shattuck, ___ N.W.2d ___, 2005 WL 1981659 (Minn. Aug. 18, 2005) (Shattuck II), rehearing granted (Minn. Oct. 6, 2005) (amending opinion), and on decisions from other states.
The supreme court
held in Shattuck I that, under Blakely,
the Minnesota Sentencing Guidelines provision for upward durational departures
based on judicial findings “unconstitutionally usurps the role and undermines the
function of the jury.” State v. Shattuck, 689 N.W.2d 785, 786 (
in several states have rejected attempts to respond to Blakely by impaneling sentencing juries in the absence of rules or
statutes authorizing that procedure.
Our supreme court in Shattuck II stated:
While this court has the authority to establish
procedures to apply the requirements of Apprendi and Blakely to sentences in
State v. Shattuck, ___ N.W.2d ___, 2005 WL
1981659, at *14. The court acknowledged
that the 2005 legislature had responded to Blakely, enacting prospective
provisions for sentencing juries and bifurcated trials, and for jury
The trial court here did not impanel a separate “sentencing” jury, but merely submitted an additional question to the jury already selected to determine Chauvin’s guilt or innocence. That question, whether the Erlandsons were “particularly vulnerable” due to age and other conditions, was submitted after the jury had found Chauvin guilty and had adjourned. It was submitted without additional evidence, based on jury instructions extensively debated by the prosecutor and defense counsel.
Special interrogatories on issues relevant to the proper
sentence to be imposed have been approved as long as the jury is instructed
that it must apply the beyond-a-reasonable-doubt standard. State v. Robinson, 480 N.W.2d 644, 646
The separate sentencing question presented to the jury here was presented in a separate proceeding occurring after the jury’s verdict finding Chauvin guilty. Therefore, it could not have tended to lead the jury to a finding of guilt. The jury was given no indication that there would be a “second stage” of the trial until after its guilty verdict was rendered.
It is only a small step from the special interrogatories approved in Robinson, Schmitz and similar cases to the sentencing determination made by the jury here. As in Robinson and Schmitz, the jury was asked to make a factual determination independent of the question of guilt and innocence but necessary to determine the appropriate sentence. And the trial court bifurcated this sentencing determination from the trial of Chauvin’s guilt or innocence so as to avoid any prejudice to the jury’s verdict on that issue.
It is true, as Chauvin points out, that at the time of
trial there was no rule or statute in
Chauvin also argues that the Legislature’s recent
The supreme court has recognized in Shattuck II that
it “has the authority to establish procedures to apply the requirements of Apprendi
and Blakely to sentencing in
The supreme court, in rejecting a procedure for jury
questioning of witnesses that had been improvised by the trial court, stated it
was not suggesting “that every district court procedure on which this court has
not ruled is in question.” State v.
Costello, 646 N.W.2d 204, 207 n.2 (
Chauvin argues that the proper remedy for a Blakely
violation, and the proper procedure in this post-Blakely trial, was to
impose the presumptive sentence. But a
defendant is not necessarily entitled to his preferred remedy. See generally State v. Lewis, 656
N.W.2d 535, 538-39 (Minn. 2003) (holding that when the trial court has
improperly departed based on the plea agreement, the matter can be remanded not
only to impose presumptive sentence but to consider vacating the conviction and
the plea agreement); State v. Coe,
411 N.W.2d 180, 182 (Minn. 1987) (holding that on remand following reversal of
improper sentencing departure the court may reconsider other aspects of the
Thus, the trial court did not exceed its authority in submitting the question whether the Erlandsons were particularly vulnerable to the same jury that determined Chauvin’s guilt, after the jury’s verdict on that issue had been rendered. It is unnecessary in this case to decide when, or whether, a sentencing determination may be submitted to a different jury, or to the same jury in a unitary trial.
Chauvin raises three other issues in challenging the departure.
First, he argues
that it was a violation of due process to try him on the aggravating factor
without that factor having been cited in the complaint. A criminal defendant is entitled to notice of
the “essential facts constituting the offense charged.” State
v. Stewart, 486 N.W.2d 444, 446 (
process requires that a complaint provide notice to the defendant of the charge
on which he will be tried. See McCollum v. State, 640 N.W.2d 610,
Chauvin argues that the prosecutor committed prejudicial misconduct in her
closing argument by comparing him to an animal (a lion) preying on other, more
vulnerable, animals (the older or weaker “gazelles or antelopes”). He points to case law holding it was
misconduct to compare the defendant to an animal.
Chauvin argues that the state failed to prove beyond a reasonable doubt that
the Erlandsons were particularly vulnerable.
In considering a claim of insufficient evidence, this court is limited
to a painstaking analysis of the record to determine whether the evidence, when
viewed in the light most favorable to the conviction, is sufficient to allow
the jurors to reach the verdict that they did.
State v. Webb, 440 N.W.2d 426,
challenge to the sufficiency of the evidence is without merit. Although there is no published case law yet
on the sufficiency of the evidence to meet the Blakely beyond-a-reasonable-doubt standard for sentencing facts,
the Erlandsons were well past retirement age (75 and 80), and, although living
independently, were beset by hearing problems and medical problems that, along
with their trusting lifestyle in a small town, left them vulnerable to a simple
swindle such as the one Chauvin forced on them.
The jury had the opportunity to view the Erlandsons as they testified
and to assess their vulnerability based on first-hand observation, not a paper
record. The evidence presented at trial
proved that, due to their age and state of mind, they were not able to resist
Chauvin’s demands for money, despite their suspicions.
Chauvin has filed a motion to strike two sentences from the state’s brief, in which the state asks this court to take judicial notice of public concern over the targeting of older victims. As the state points out in its reply to the motion, the challenged sentences do not make factual assertions. Therefore, we need not decide whether it is appropriate for this court, as an appellate court, to take judicial notice. Because the state’s argument presents a policy concern rather than a factual assertion, we deny the motion to strike.
Affirmed; motion denied.