This opinion will be unpublished and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,
Randal Charles Meyer,
Benton County District Court
File No. K9-03-152
Mike Hatch, Attorney General, James B. Early, Assistant
Attorney General, 1400
Robert Raupp, Benton County Attorney, Courts Facility Building, 615 Highway 23, P.O. Box 189, Foley, MN 56329 (for respondent)
John M. Stuart, State Public Defender, Susan Andrews, Assistant
Considered and decided by Klaphake, Presiding Judge; Lansing, Judge; and Minge, Judge.
Appellant challenges the district court’s imposition of a consecutive sentence based on his conviction for tampering with a witness. Because the district court did not err in determining that appellant’s offense, as committed, was a crime against a person, and because this determination did not violate appellant’s Sixth Amendment rights, we affirm.
Appellant Randal Meyer was charged with first-degree burglary for unlawfully entering the home of his ex-girlfriend and physically assaulting her. Ultimately he was convicted on these charges and received a sentence of 68 months.
days before the scheduled trial, Lieutenant Susan Johnson, administrator of the
Johnson reported that she opened the sealed, stamped envelope and found a Christmas card signed by appellant and a handwritten letter with the salutation “Mom & Dad.” The letter begins by informing appellant’s parents of the jail’s visiting policy. The letter expresses appellant’s anger that his ex-girlfriend has started seeing another man and describes his efforts to threaten his ex-girlfriend:
She’s been told to drop the O.F.P., not testify, get rid of her boyfriend, and put everything, the apt, phone, bank, everything, back how it was. Let’s just say if she doesn’t do it, I won’t be the only one who lost everything they cared about. Things have already been arranged, if she doesn’t come see me Thursday night and have all those things done, it will be out of my hands. I have to do nothing, and it doesn’t matter if I’m locked up or not. The only way to stop the people out there is for me to call them, and I won’t, unless I hear from Kim.
To conclude, appellant states that he plans to commit suicide if he cannot be with his ex-girlfriend, and then states, “I hope you’ll help convince her.” Appellant admits to writing the letter, but asserts that he did not put the letter into the outgoing mail and that he wrote it solely for the purpose of “blowing off steam.”
was charged with first-degree tampering with a witness, in violation of Minn.
Stat. § 609.498, subd. 1(a) (2002), convicted, and was sentenced to 18 months
to be served consecutively to his 68-month burglary sentence. This court reversed the witness-tampering
conviction and remanded for a new trial on the grounds that appellant had not
personally waived his right to a jury trial on that charge. State
v. Meyer, No. A03-1860, 2004 WL 2049964, at *1 (Minn. App. Sept. 14, 2004),
review denied (
first issue in this case is whether the district court erred in determining
that appellant’s offense of tampering with a witness was a crime against a
person. Under the sentencing guidelines
in effect at the time of appellant’s offense, a district court had the
discretion to sentence a defendant consecutively if the defendant had a prior
felony sentence for a crime against a person that had not expired or been
discharged and one or more of the current felony convictions is for a crime
against a person.
sentencing guidelines do not define a “crime against a person,” but caselaw
indicates that the inquiry involves the underlying conduct, not the label
assigned to the crime. State v. Rannow, 703 N.W.2d 575, 578 (
A person unlawfully tampers with a witness if he “intentionally prevents or dissuades or intentionally attempts to prevent or dissuade by means of force or threats of injury to any person or property, a person who is or may become a witness from attending or testifying at any trial, proceeding or inquiry authorized by law.” Minn. Stat. § 609.498, subd. 1(a) (2002). Here, appellant wrote a letter alluding to an arrangement to harm his ex-girlfriend, who was to be a witness at his upcoming trial, unless she dropped all charges and complied with other demands. Although the letter was directed to appellant’s parents, it asked them to “help convince” the ex-girlfriend to accede to his demands. The letter strongly implies that appellant had prearranged for an unidentified person to harm his ex-girlfriend and that unless appellant stopped that person, the plan would go forward.
Appellant contends that his offense cannot be a crime against a person because the letter was never delivered and thus his ex-girlfriend was not aware of the threats. Appellant presents no legal basis for his argument that the victim must be aware of the offense for it to constitute a crime against a person. The more appropriate focus in determining whether an offense is a crime against the person is the nature of the defendant’s conduct. There was evidence that the objective of his letter was to cause the victim to fear for her safety if she testified. Based on appellant’s conduct, we affirm the district court’s finding that appellant’s offense of tampering with a witness, as committed, was a crime against a person.
second issue is whether appellant’s Sixth Amendment rights were violated. Appellant contends that his sentence violates
his Sixth Amendment rights under Blakely
v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536 (2004), because the
determination of whether his offense was a crime against a person was made by a
judge, not a jury. In Blakely, the United States Supreme Court
reaffirmed the rule that “[o]ther 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.”
State v. Senske, this court addressed
the application of Blakely to
692 N.W.2d 743, 746 (Minn. App. 2005), review denied (
Appellant argues that the Senske court never squarely addressed whether the district court may make the determination of whether an offense is eligible for permissive consecutive sentencing because in that case the appellant’s offense of first-degree criminal sexual conduct was clearly a crime against a person. See id. at 745. But nothing in the Senske opinion or our subsequent application of Senske in Rannow indicates that this court intended to limit its holding to offenses that are “obviously” crimes against a person. See Rannow, 703 N.W.2d at 580-81; Senske, 692 N.W.2d at 746-49. We conclude that appellant’s Sixth Amendment rights were not violated.
third issue is whether appellant’s arguments in his pro se supplemental brief warrant
reversal. Appellant first argues that the evidence does not
support his conviction because he claims that the jailer removed the draft
letter from his cell and that he never attempted to mail the letter. Testimony at trial indicated that jail staff
found appellant’s letter in an outgoing mail bin on December 17 and that the
typical way in which a letter reaches that bin is for an inmate to bring it to
jail staff, who then delivers it to the bin.
Although there was testimony that jail staff removed a note from
appellant’s cell during a search on December 18, testimony indicates that this
was not the letter that led to appellant’s conviction. Taken in the light most favorable to the
conviction, the evidence is sufficient to allow the jurors to reach the verdict
that they did.
also argues that he was improperly charged in retaliation for his complaints