This opinion will be unpublished and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,
Will Matthew Hendrickson,
Dakota County District Court
File No. K7-04-2642
Mike Hatch, Minnesota Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
James C. Backstrom, Dakota County Attorney, Joseph K. Boche, Assistant Dakota County Attorney, Dakota County Judicial Center, 1560 Highway 55 West, Hastings, MN 55033 (for respondent)
Phillip S. Resnick, Phillip S. Resnick & Associates, 1925 Rand Tower, 527 Marquette Avenue south, Minneapolis, MN 55414 (for appellant)
Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Ross, Judge.
In this appeal from a conviction of first-degree burglary under Minn. Stat. § 609.582, subd. 1(a) (2004), appellant William Hendrickson argues that the evidence is insufficient to support his conviction. Hendrickson also argues that the district court denied him the right to present a defense by excluding evidence of his state of mind and violated his Fifth Amendment right to be free from compelled self-incrimination by asking him to ratify a stipulation in open court. Because the record evidence supports the jury’s verdict and because we find no constitutional error or abuse of discretion in the court’s evidentiary rulings, we affirm.
This case arises from Will Hendrickson’s acquisition and relinquishment of someone else’s bicycle. Shortly after midnight on August 8, 2004, Hendrickson went to Fred Jorgenson’s house and took a bicycle belonging to Jorgenson’s 12-year-old son from Jorgenson’s closed garage. Jorgenson’s son heard a loud noise in the garage. He looked inside, realized that his bicycle—a $300 birthday gift from his father—was missing and, through the living room window, saw Hendrickson riding away. He woke his father and told him. Jorgenson called the police. Hours later Hendrickson abandoned the bicycle, unsecured, in the yard of one of Jorgenson’s neighbors. Jorgenson found the bicycle in his own front yard the next morning.
Hendrickson was acquainted with the Jorgenson family. He had dated Jorgenson’s daughter, Stephanie. But Stephanie Jorgenson’s mother had obtained an Order for Protection (OFP) that prohibited Hendrickson from contacting Stephanie or entering the Jorgenson residence. The court issued the OFP one month before Hendrickson entered the Jorgenson garage and took the bicycle, and the OFP was still in effect at the time of the taking.
Hendrickson told an investigating officer that on the night of the incident he needed transportation. He went to Jorgenson’s house to look for Stephanie Jorgenson, noticed that her car was gone, and took the bicycle to ride to his friend’s house. Hendrickson said that he entered Jorgenson’s garage through an unlocked service door. Hendrickson told the investigator that the bicycle “should be” where Hendrickson dropped it (unlocked in the yard of one of Jorgenson’s neighbors), “unless someone else possibly stole it” after Hendrickson left it. The state charged Hendrickson with first- and second-degree burglary, in violation of Minn. Stat. § 609.582, subds. 1(a), 2(a) (2004), and violation of an order for protection, in violation of Minn. Stat. § 518B.01, subd. 14(a), (b) (2004).
Hendrickson wanted to present evidence at trial that Stephanie Jorgenson had contacted him several times since the court issued the OFP. He argued that it demonstrated his state of mind when he entered Jorgenson’s garage. The state moved to exclude this evidence as irrelevant. The district court granted the state’s motion and excluded evidence that Stephanie Jorgenson had contacted Hendrickson.
At trial, outside the jury’s presence, Hendrickson stipulated to the relevant provisions of the OFP and to his knowledge of the OFP. The prosecutor then read the stipulation to the jury, and the district court asked Hendrickson’s counsel if Hendrickson stipulated to those facts. The district court next asked Hendrickson, “And you agree those are the facts in this case?” Hendrickson responded affirmatively. Hendrickson moved for a mistrial, arguing that the prosecutor and the district court violated his right to remain silent by asking him in front of the jury whether he agreed with the stipulation. The district court denied Hendrickson’s motion.
The jury returned guilty verdicts on all three counts. The district court stayed the imposition of a sentence and placed Hendrickson on probation for a period up to five years. Hendrickson’s appeal follows.
D E C I S I O N
first challenges the sufficiency of the evidence supporting his conviction of
first-degree burglary. When an appellant challenges
the sufficiency of the evidence, we review the record to determine “whether the
facts in the record and the legitimate inferences drawn from them would permit
the jury to reasonably conclude that the defendant was guilty beyond a
reasonable doubt.” Davis v. State,
595 N.W.2d 520, 525 (
person commits first-degree burglary if he enters a dwelling “without consent
and with intent to commit a crime, or enters a building without consent and
commits a crime while in the building” when a non-accomplice is present inside. Minn. Stat. § 609.582, subd. 1(a)
(2004). The state must prove both that the
defendant made an illegal entry and that he intended to commit or actually
committed an independent crime other than trespass. State
v. Colvin, 645 N.W.2d 449, 452 (
Hendrickson does not dispute that he entered Jorgenson’s garage without consent or that the garage constitutes a dwelling within the meaning of the statute. Nor does he dispute that he lacked permission to take the bicycle. He argues instead that the record does not show that he committed a crime by taking the bicycle without permission, relying on his assertion that he returned the bicycle the next morning. We must therefore decide whether the taking in this case constitutes the crime of theft.
person commits a theft when he “intentionally and without claim of right takes,
uses, transfers, conceals or retains possession of movable property of another
without the other’s consent and with intent to deprive the owner permanently of
possession of the property.”
The record undisputedly shows that Hendrickson intentionally exercised temporary control of the bicycle. Hendrickson argues that he did not act with indifference because he returned the bicycle. We are not persuaded. Hendrickson never actually returned the bicycle to its owner, and the manner in which he left it belies the assertion that he acted with due care for the rights of its owner or for its restoration to the owner. Rather, he left the bicycle unsecured in a neighbor’s front yard. Hendrickson admitted that Jorgenson would find the bicycle only if someone else had not stolen it from where he had abandoned it. This tends to demonstrate his awareness of the risk of leaving the bicycle unprotected, indicating to the jury that he acted with indifference to the property rights of the owner and to the restoration of the bicycle to him. Even if Hendrickson actually had returned the bicycle carefully to the Jorgensons instead of leaving it to whoever should come upon it, the verdict is still well founded because return of the bicycle to its owner is not a defense. See Larson, 605 N.W.2d at 711. We conclude that although the record evidence and factual inferences may not be overwhelming, they are sufficient to permit a jury to reasonably determine that Hendrickson is guilty beyond a reasonable doubt of first-degree burglary.
argues that the district court denied his right to present a defense by
excluding evidence that Stephanie Jorgenson contacted him after the issuance of
the OFP. This court reviews evidentiary
challenges for an abuse of discretion, and we apply that standard even when an
appellant alleges that his constitutional rights were violated. State
v. Profit, 591 N.W.2d 451, 463 (
the state and federal constitutions guarantee a criminal defendant’s due-process
right to “a meaningful opportunity to present a complete defense.” State v.
Richards, 495 N.W.2d 187, 191 (
claims that the district court should have admitted evidence that Stephanie
Jorgenson maintained contact with him after the issuance of the OFP to
demonstrate his state of mind when he entered Jorgenson’s garage and took the
bicycle. But Hendrickson does not
explain how this evidence bears on his state of mind with respect to the
charges. He has acknowledged that he
lacked permission to take the bicycle, and evidence of Stephanie Jorgenson’s
contact with him is not probative of the issues concerning those charges. See
argues finally that the district court violated his Fifth Amendment right to be
free from self-incrimination when it asked in the jury’s presence whether he
agreed with the stipulation regarding the existence and his knowledge of the
OFP. The district court denied
Hendrickson’s motion for a mistrial, and Hendrickson now challenges that denial
on appeal. This court reviews a denial
of a motion for a mistrial for an abuse of discretion. State v.
Jorgensen, 660 N.W.2d 127, 133 (
highlights that both the prosecutor and the district court asked Hendrickson
personally whether he agreed with the stipulation. The record indicates that only the district
court questioned Hendrickson about the accuracy of the stipulation. But for reasons unknown by the parties or the
district court, the trial transcript does not accurately reflect the precise
exchange that occurred. Outside the
presence of the jury, the district court heard both parties’ recollections of
the exchange. After the trial, the
district court issued an order in which it found that the prosecutor had requested
the district court to ask Hendrickson whether he agreed with the
stipulation. This finding is supported
by the record and warrants this court’s deference.
the federal and state constitutions protect a defendant’s right to be free from
compelled self-incrimination. U.S. Const. amend. V;