This opinion will be unpublished and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
Filed May 30, 2006
Dakota County District Court
File No. K2-04-1205
Mike Hatch, Attorney General,
James C. Backstrom,
John M. Stuart, State Public
Defender, Lydia Villalva Lijó, Assistant Public Defender,
Considered and decided by Hudson, Presiding Judge; Klaphake, Judge; and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from his conviction of and sentence for offering a forged check, appellant argues that the district court: (a) committed plain error in failing to exclude hearsay statements; (b) committed plain error in failing to give a specific unanimity instruction when the state introduced evidence of three separate incidents; and (c) erred in crafting a bifurcated sentencing procedure when the procedure was not authorized by statute. Appellant also argues pro se that the district court violated his right to self-representation when the court refused to allow appellant to discharge his counsel. We affirm appellant’s conviction, but we reverse appellant’s sentence and remand for resentencing consistent with the presumptive sentence in the Minnesota Sentencing Guidelines.
D E C I S I O N
challenges the district court’s failure to exclude Schrandt’s testimony,
arguing that the testimony recalling her conversation with the Cubs Foods employee
constituted inadmissible hearsay.
“Evidentiary rulings rest within the sound discretion of the trial court
and will not be reversed absent a clear abuse of discretion.” State
v. Amos, 658 N.W.2d 201, 203 (
Out-of-court statements offered to
prove the truth of the matter asserted are hearsay and are generally not
admissible, subject to certain exceptions.
Respondent argues that the statements contained sufficient indicia of reliability to qualify for admission under Minn. R. Evid. 803(24), which permits a district court to admit a statement not covered by a specific exception and regardless of the declarant’s availability if the statement meets certain requirements, including the requirement that the statement possess “circumstantial guarantees of trustworthiness.”
argument lacks merit. A determination of
sufficient circumstantial guarantees of trustworthiness turns on whether: (1)
the Confrontation Clause is implicated; (2) the declarant admitted making the
statement; (3) the statement was against the declarant’s interest; and (4) the
statement is consistent with other evidence introduced by the state. State
v. Ortlepp, 363 N.W.2d 39, 44 (
remaining issue is whether admission of the hearsay statements substantially
affected appellant’s rights.
Appellant argues that the verdict is attributable to the error of admitting the hearsay statements because the state relied on the employee’s testimony to prove an element of the offense—that the money order was forged. But the record reflects that the state put forth two alternative means of satisfying this element. The jury instructions provided, and the state’s closing reiterated, that this element is satisfied if the jury concludes that the money order was altered or if it bore a fictitious name. The record reflects that the money order and driver’s license in appellant’s possession bore the name Tim Brown, even though the driver’s-license number was assigned to appellant under his name. Although appellant suggested that he possessed his friend’s license, a reasonable jury could have concluded that the money orders bore a fictitious name.
Furthermore, there was substantial evidence in the record that the money orders were forged, without relying on the employee’s statements. The money orders admitted into evidence contain instructions on the back to determine the authenticity of the documents. Each order instructs vendors not to cash the order unless the dollar amount listed conforms to a specific example. The dollar amount listed on these orders does not conform to the example. Officer Schroeder testified that by using this instruction, he determined the orders were forged. Therefore, the error could not have reasonably affected the jury’s decision, and appellant’s substantial rights were not violated.
next argues that the district court violated his right to a unanimous jury when
it failed to instruct the jury that it had to unanimously agree on which of the
acts appellant committed on April 14 constituted offering a forged check. This court affords the district court wide
discretion regarding jury instructions and will reverse only if the district
court abuses its discretion. State v. Stemph, 627 N.W.2d 352, 354 (
It is fundamental that a jury must be unanimous on the question of whether a defendant committed the act that constitutes an element of the offense charged. Stemph, 627 N.W.2d at 355. Here, the state charged appellant with one count of offering a forged check under Minn. Stat. § 609.631, subd. 3 (2004), which provides that “[a] person who, with intent to defraud, offers, or possesses with intent to offer, a forged check, whether or not it is accepted, is guilty of offering a forged check.” The record reflects that the state put forth evidence of three separate acts that each occurred on April 14, 2004: (1) appellant attempted to pay for salads at Subway with a money order; (2) appellant paid for merchandise at the Dairy Queen with a money order; and (3) appellant intended to use a money order to purchase merchandise from Domino’s Pizza. Because each act independently satisfies the elements of the statutory offense and the acts were not alternative means of committing an element of the offense, the district court’s failure to provide a specific unanimity instruction was erroneous.
conclude, however, that the district court did not commit plain error. Plain error exists when the court contravenes
clear and established law. State v. Crowsbreast, 629 N.W.2d 433,
challenges the district court’s decision to hold a bifurcated procedure and
submit the issue of whether appellant’s current offense is part of a pattern of
criminal conduct to the sentencing jury. Although acknowledging that Blakely v. Washington, 542
decision in this matter is controlled by the supreme court’s opinion in State v. Barker, 705 N.W.2d 768 (
Barker involved empaneling a separate
jury on remand, and the issue presented here is a bifurcated trial, the
reasoning in Barker is applicable to
judicially crafted bifurcated sentencing procedures as well.
recognize that in a concurrent release, State
v. Lushenko, ___ N.W.2d ___ (Minn. App. May 30, 2006), this court concludes
that Shattuck II and Barker do not prohibit a district court
from exercising its inherent authority to submit the issue of whether
appellant’s current offense is part of a pattern of criminal conduct to a
sentencing jury. We conclude that Shattuck II and Barker
compel the opposite result. That said, it
is not clear to us why, if the judiciary has inherent authority to impose a
sentence within the limits set by the legislature, a district court’s inherent
authority would not extend to creating sentencing procedures. But “the task of extending existing law falls
to the supreme court,” and does not fall to this court. Tereault
v. Palmer, 413 N.W.2d 283, 286 (
Because the district court lacked authority to bifurcate the trial, we do not address appellant’s arguments regarding alleged errors that occurred during the sentencing proceeding. We reverse appellant’s sentence and remand for resentencing consistent with the presumptive sentence in the Minnesota Sentencing Guidelines.
Appellant argues pro se that the district court violated his right to self-representation on November 16, 2004, when the district court refused to permit appellant to discharge his recently reappointed counsel after the voir dire. In denying appellant’s motion, the district court found that appellant’s request constituted “legal maneuvering.”
criminal defendant has the right to self-representation in a state criminal
proceeding. State v. Christian, 657 N.W.2d 186, 190 (
Affirmed in part, reversed in part, and remanded.
 The district court sentenced appellant under Minn. Stat. § 609.1095, subd. 4 (2004), which provides:
Whenever a person is convicted of a felony, and the judge is imposing an executed sentence based on a Sentencing Guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.
The supreme court has held that
the determination of a pattern of criminal conduct requires a factual finding
that goes beyond simply counting up the number of prior convictions and,
therefore, the imposition of an enhanced sentence based on a district court’s
finding of a pattern violates a defendant’s Sixth Amendment right to a trial by
jury. State v.
 The legislature amended Minn. Stat. § 609.1095 in 2005. See
We note that this court has released concurrent,
conflicting opinions on at least one prior occasion. See
Ascher v. Comm’r of Pub. Safety, 505 N.W.2d 362, 364 n.1 (Minn. App. 1993),
aff’d, 519 N.W.2d 183 (