This opinion will be unpublished and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
Aaron Halvin Benner,
Filed May 9, 2006
Affirmed in part, reversed in part, and remanded
File No. K3-03-101884
Stuart, State Public Defender, Theodora K. Gaitas, Assistant Public Defender,
Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of and sentence for aiding and abetting aggravated robbery and an order denying postconviction relief, appellant argues that (1) the postconviction court erred in concluding that appellant was not denied due process when the prosecutor failed to disclose the victim’s 1996 first-degree criminal-sexual-conduct conviction; (2) the district court committed plain error by allowing a police officer to testify about statements that the victim made; (3) the prosecutor committed prejudicial misconduct in closing argument by suggesting that the defense had the burden of refuting the state’s evidence; and (4) the district court violated his right to a jury trial by imposing an upward durational departure based on its finding that the victim was particularly vulnerable. We affirm appellant’s conviction and the order denying postconviction relief, but we reverse appellant’s sentence and remand for resentencing.
On October 1, 2003, officers arrested appellant Aaron Halvin Benner (Benner) and his brother Burton Benner after Brent Galindo reported that two men assaulted and robbed him. The state charged Benner with one count of first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (2002), and one count of simple robbery in violation of Minn. Stat. § 609.24 (2002).
that he was walking to downtown
Galindo called the police from the Royal Bar. Virginia Police Officer Brian Bisping picked up Galindo at the front of the Royal Bar and took him to the police station. Bisping noted dirt and dried blood on Galindo’s partially swollen face and scraped knuckles and a cut on one hand.
described the two men for Bisping, and Bisping and his partner took Galindo to
search for the suspects at local bars. At
testified that he had spent the day at a friend’s house, and his girlfriend lent
him $85. In the evening, Benner and his
brother walked downtown and saw Galindo, whom Benner knew from serving time with
him at the
A jury found Benner guilty as charged, and the district court imposed a 176-month sentence, which was a departure from the 88-month presumptive sentence. Benner filed a direct appeal challenging the conviction and the sentence; this court stayed the appeal to allow Benner to file a postconviction petition in the district court. The postconviction petition was denied, and the appeal was reinstated. Benner also challenges the order denying postconviction relief.
1. Admission of evidence of witness’s conviction
that the postconviction court erred when it denied his request for a new trial
based on his claim that the prosecutor’s failure to disclose that Galindo was convicted
criminal sexual conduct in 1996 violated his right to due process of law. Normally, “[t]he decisions of a
postconviction court will not be disturbed absent an abuse of discretion.” Pierson
v. State, 637 N.W.2d 571, 577 (
by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” State
v. Hunt, 615 N.W.2d 294, 299 (
United States Supreme Court has adopted a three-part inquiry to be used when
determining whether a failure to disclose evidence violates due process: “[t]he
evidence at issue must be favorable to the accused, either because it is exculpatory,
or because it is impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must have ensued.” Strickler
v. Greene, 527
is undisputed that Galindo’s first-degree criminal-sexual-conduct conviction was
favorable to Benner because it was impeaching and that the state inadvertently
failed to disclose the conviction. The
disputed issue is whether Benner was prejudiced by the prosecutor’s failure to
disclose the conviction. The supreme
court has cautioned that “[n]ondisclosure of evidence that is merely impeaching
may not typically result in the kind of prejudice necessary to warrant a new
trial.” Hunt, 615 N.W.2d at 300-01.
And the likelihood of prejudice is decreased “where testimony of the
witness sought to be impeached by nondisclosed evidence was not the only
damning evidence against defendant.”
prejudice, this court looks at whether the evidence would have been admissible
at trial and whether, in any reasonable likelihood, the evidence could have
affected the judgment of the jury.
whether to admit evidence of a prosecution witness’s prior conviction, “the
major concerns are to protect the witness from being harassed and unduly
embarrassed, the jury from being confused and misled, and everyone involved
(court, jury, parties) from having to endure an unnecessarily prolonged
trial.” State v. Lanz-Terry, 535 N.W.2d 635, 639 (
credibility was central to the case. But
the impeachment value of Galindo’s conviction was diminished by its age (the
conviction was nine years old at the time of trial), and the crime for which he
was convicted was not directly related to Galindo’s honesty and veracity. See
State v. Bias, 419 N.W.2d 480, 487 (
Balanced against the minimal impeachment value of the conviction was the possibility of significant prejudice and confusion. Galindo’s first-degree criminal-sexual-conduct offense involved repeated sexual contact with a girl under age 16. Evidence about the conviction might have distracted the jury from its assigned function and led the jury to believe that Galindo was a bad person who deserved to be the victim of a crime. In light of the minimal impeachment value of the conviction and the significant potential for prejudice, the postconviction court’s determination that Galindo’s conviction would not have been admissible to impeach him was not a clear abuse of discretion.
Furthermore, even if Galindo’s conviction were admissible at trial, there is not a reasonable likelihood that the conviction could have affected the judgment of the jury. As we have already discussed, the impeachment value of the conviction was minimal. Also, although Galindo was the state’s only eyewitness, his testimony was not the only damning evidence against Benner. Additional evidence included (1) Bisping’s observations of Galindo’s injuries, which corroborated Galindo’s testimony that he was attacked; (2) Bisping’s testimony that Benner and his brother quickly left out the back door of the Queen City Sports Palace when Galindo entered the bar; and (3) Benner was carrying $50 in cash and two packs of Liggett cigarettes when he was arrested, which was consistent with Galindo’s testimony about the items that were taken from him during the robbery. Benner has not shown that he was prejudiced by the prosecutor’s failure to disclose Galindo’s conviction.
2. Hearsay evidence
trial, Bisping testified about information that he received from Galindo during
the investigation that led to Benner’s arrest. Benner argues that admitting this hearsay
evidence was prejudicial error that deprived him of his right to a fair
trial. Evidentiary rulings are committed
to the district court’s discretion and will not be reversed absent a clear
abuse of discretion. State v. Bobadilla, 709 N.W.2d 243, 256
As a general
rule, a defendant who fails to object to a particular error at trial is deemed
to have forfeited his right to have the alleged error reviewed on appeal;
however, a defendant may obtain appellate review and relief from plain errors
affecting substantial rights if those errors had the effect of depriving the
defendant of a fair trial. State v. Williams, 525 N.W.2d 538, 544 (
how an investigation focused on a particular defendant, a police officer
testifying in a criminal trial may not relate hearsay statements of
3. Shifting burden of proof
During closing argument, the prosecutor stated:
And, again, the timing, I can’t explain it for you, but
neither can anybody else. There are
discrepancies in the timing. There are
discrepancies in the timing, but not enough so to cause reasonable doubt. [Benner] has got himself going out the back
door before Officer Bisping and Mr. Galindo even leave the police station. Mykell Dertinger, she gets to the
Benner argues that the prosecutor’s statement, “It is the other evidence that can’t be reasonably explained by the defendant and his theory,” deprived him of a fair trial by exploiting the fact that the defense did not present evidence to rebut the state’s theory of the crime.
The state has
the burden of proving all elements of a crime beyond a reasonable doubt, and
the burden of proving innocence cannot be shifted to an accused. State
v. Gassler, 505 N.W.2d 62, 69 (
We agree with the district court that when read in the context of the prosecutor’s argument, the statement to which Benner objects was not a comment on the presumption of innocence or the burden of proof; it was an argument about the defense’s explanation of the evidence. The prosecutor’s closing argument did not improperly shift the burden of proof.
4. Sentencing Departure
court imposed a 176-month
sentence, which is a
departure from the 88-month presumptive sentence. Benner argues that under Blakely v. Washington, 542
“Other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Apprendi v.
that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.
In State v. Shattuck, 704 N.W.2d 131, 142 (
Affirmed in part, reversed in part, and remanded.
 Benner was sentenced on May 3, 2004, and Blakely was decided on June 24, 2004.