This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).








State of Minnesota,





Richard Charles Griffin,




Filed November 21, 2006


Toussaint, Chief Judge


Hennepin County District Court

File No.  04085004



Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487  (for respondent)


John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Toussaint, Chief Judge; Stoneburner, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


TOUSSAINT, Chief Judge

            This is an appeal from a conviction and sentence for possessing a burglary or theft tool in violation of Minn. Stat. § 609.59 (2004).  Appellant Richard Charles Griffin challenges the admission of Spreigl evidence and the upward sentencing departure imposed following appellant’s waiver of his Blakely right to a jury trial.  We affirm.


Appellant was charged with possessing a burglary or theft tool at a YMCA.  An employee of the YMCA testified that he saw a person he later identified as appellant rummaging through a gym bag in the locker room.  The bag was one the employee recognized as belonging to an elderly, regular member of the YMCA.  The employee testified that appellant was wearing blue hospital “scrubs” when he saw him going through the gym bag. 

            The employee found the bag’s owner and informed him of the problem, then returned to confront appellant and to tell him that police had been called.  When Officer Daniel Conboy responded to the theft call, the employee identified appellant as the theft suspect.  Appellant denied going through the gym bag, but a pair of blue “scrubs” pants was found in appellant’s bag.  When Conboy searched appellant’s jacket, he found a metal tool, about eight inches long, in a “homemade pocket” in the jacket.  Appellant told police that he used the tool at his job as a machinist but could not explain for what the tool was used. 

Police found the lock on the gym-bag owner’s locker broken.  The lock had pry marks that Conboy compared with the tool found in appellant’s jacket and concluded were marks that could have been made by the tool.

The gym-bag owner testified that he locked his gym bag in a locker, using a lock that was the same as, or similar to, the one recovered by police.  He testified that there was money missing from his wallet, which was inside the gym bag, but everything else was still there, including an expensive watch.

The trial court, over a defense objection, allowed the state to present evidence that appellant pleaded guilty in 2001 to two possession-of-a-burglary-tool offenses, which occurred in May and September of 2001 at Bally’s Total Fitness Center in St. Paul and for which he was sentenced in January 2002.

While the jury was deliberating, the court heard arguments outside the jury’s presence on the proper sentencing procedures in the event the jury returned a guilty verdict.  Defense counsel, after noting the state had given notice only on the first day of trial of its intent to seek an upward departure, and after arguing that the 2005 sentencing amendments would not apply to appellant’s September 2004 crime, volunteered that appellant wished to waive a jury determination of any sentencing issues.  Appellant then waived his right to a jury trial on sentencing issues.

At sentencing, the court found that appellant had waived his Blakely right to a jury determination of aggravating factors.  The court, based on a review of the file, including the presentence investigation and sentencing worksheet, found beyond a reasonable doubt that appellant had five or more prior felony convictions and that the current offense was committed as part of a pattern of criminal conduct. The court then imposed a 36-month sentence, an upward departure under the career-offender statute.





Appellant argues that the trial court abused its discretion in admitting as Spreigl evidence his two prior convictions for possessing burglary or theft tools.  This court reviews that decision for an abuse of discretion.  State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006).

Evidence of prior bad acts by the defendant is generally not admissible except for specific limited purposes, such as to show motive, intent, knowledge, identity, or a common scheme or plan.  Minn. R. Evid. 404(b).  The trial court ruled that appellant’s two 2002 convictions, for conduct occurring in May and September 2001, were admissible to show motive, intent, and common scheme or plan.  Appellant argues that the state’s evidence was not weak on those issues and that a proper Spreigl analysis must include an analysis of the state’s need for the evidence.

The supreme court in Ness eliminated as an independent requirement for admissibility the state’s need for the Spreigl evidence.  707 N.W.2d at 689-90.  Instead, the state’s need for the evidence “should be addressed in balancing probative value against potential prejudice.”  Id. at 690.  The probative value of the Spreigl evidence will not be increased if “the state’s case [is] not weak on the real issue for which the evidence was offered.”  Id.

The state presented strong evidence that appellant was present in the YMCA locker room and that he appeared to be rummaging through another person’s gym bag.  But in order to prove the offense charged, the state had to show that appellant possessed a “device” or “other instrumentality” “with intent to use” it to commit burglary or theft.  Minn. Stat. § 609.59 (2004).  The state lacked any conclusive evidence that an actual theft occurred.  Although the gym-bag owner testified there was money missing from his wallet, it was not found on appellant.  The state lacked conclusive evidence that the tool found on appellant had been used to open the gym-bag owner’s locker.  One officer testified the tool was “consistent with” the pry marks found on the lock.  But appellant told police that the tool was one he used at work.  The state had no evidence to refute this claim.

Thus, the Spreigl evidence showing appellant’s past possession of burglary tools in a gym locker room to commit thefts similar to that suspected here was highly relevant to show the intent required by the possession statute.  This was the real issue for which the Spreigl evidence was offered, as the prosecutor’s closing argument reflects.  The state’s need for such evidence increased the probative value of the evidence.

We also conclude that the Spreigl evidence had significant probative value in showing a common scheme or plan. The 2001 incidents were markedly similar, occurring in a very similar locale and in the relatively recent past.  This similarity was easily sufficient to show a common scheme or plan.  See generally Ness, 707 N.W.2d at 688 (holding that prior offenses must have “marked similarity in modus operandi” to be admissible under common scheme or plan exception).  Thus, we conclude that the probative value of the evidence was not outweighed by its potential for prejudice to appellant. 


Appellant argues that his waiver of his Blakely right to a jury determination of sentencing issues was invalid on several grounds and that the upward departure, therefore, was error.  See generally Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004) (holding that Sixth Amendment jury-trial right extends to determination of facts essential to punishment to be imposed).  These arguments present questions of law, which we review de novo.  See State v. Pflepsen, 590 N.W.2d 759, 763 (Minn. 1999).

Appellant argues first that his waiver of his right to a jury trial was invalid because the trial court lacked the authority to submit sentencing issues to a jury.  But the supreme court has recently recognized the inherent authority of the district court to submit sentencing issues to a jury for its determination.  State v. Chauvin, ___ N.W.2d ___ , ___, 2006 WL 3026126, at *6 (Minn. Oct. 26, 2006).  Because the district court had inherent authority to submit sentencing issues to a jury, there was nothing illusory about the jury-trial right that appellant was waiving, and, therefore, his waiver was not invalid for that reason.

Appellant also argues that his Blakely waiver was invalid because he did not waive the individual trial rights associated with the right to trial by jury.  The supreme court, however, has reversed this court’s holding that such a detailed Blakely waiver is required.  State v. Thompson, 720 N.W.2d 820, 827-28 & n.3 (Minn. 2006), rev’g 694 N.W.2d 117 (Minn. App. 2005).  Because Thompson holds that a detailed waiver of individual trial rights is not required to validly waive the Blakely jury-trial right, appellant’s argument is without merit.

Finally, appellant argues that the upward departure violated due process because the state did not charge the enhanced offense (possession of burglary or theft tools by a career offender) in the complaint and that it violated double jeopardy because he already stood convicted of possession of burglary or theft tools without the career-offender statutory enhancement.  Both of these arguments rely on the claim that, under the Apprendi/Blakely line of cases, sentencing factors have become elements of the (enhanced) offense.

The Supreme Court in Apprendi stated that facts that increase the penalty for the crime beyond the statutory maximum are “the functional equivalent” of elements of a greater offense.  Apprendi v. New Jersey, 530 U. S. 466, 494 n.19, 120 S. Ct. 2348, 2365 n.19 (2000).  Appellant argues that, therefore, due process requires that the aggravating facts the state seeks to rely on to enhance the sentence must be stated in the complaint, like other elements of the crime.

The supreme court has recently rejected this argument, noting that the Apprendi language quoted above did not arise “in the context of giving adequate notice of the charges,” and holding that the aggravating factor(s) relied on by the state “need not be alleged in the complaint.”  Chauvin, 2006 WL 3026126 at *10.  The state gave notice of its intent to seek an upward departure four days before trial started.  Appellant, who waived his right to a jury trial on the sentencing issue, has not shown how the lack of an earlier notice of the state’s reliance on the career-offender statute prejudiced his defense.  See id. (applying harmless-error analysis to lack of notice in complaint of aggravating factor).

Appellant’s double-jeopardy argument also relies on the Apprendi language treating an aggravating factor as the “functional equivalent” of an offense element.  But the supreme court has recently held that a resentencing that follows a defendant’s successful challenge to his sentence is not a “second prosecution” that would implicate the Double Jeopardy Clause.  Hankerson v. State, ___ N.W.2d ___, ___, 2006 WL 3026144, at *5 (Minn. Oct. 26, 2006).  Appellant’s prosecution has not even reached the stage of resentencing.  The sentence imposed by the district court based on the career-offender statute, and the sentence that could have been imposed following a jury’s sentencing determination, merely represented the continuation of the original prosecution to its sentencing phase.  There is no merit to appellant’s argument that he was put in jeopardy a second time at sentencing. 

            Appellant has filed a pro se supplemental brief and a pro se addendum in which he claims that the prosecutor committed prejudicial misconduct and that he was denied the effective assistance of counsel.  The claim of prosecutorial misconduct appears to rely on a claim that appellant was not actually wearing a jacket at the time of his arrest.  The police testimony refutes this claim, and appellant cites no evidence contradicting that testimony.

            Appellant argues that he was denied the effective assistance of counsel when his attorney failed to contact appellant’s proposed defense witnesses until the first day of trial and then failed to subpoena them for trial.  Defense counsel stated at trial that he did not believe that the witness appellant wanted to call had any relevant admissible testimony to offer.  Appellant claims that he had three proposed witnesses, two of them from his work who, he claims, could have testified that appellant used the tool found on him in his work as a machinist.  But no record was made in the district court of the proposed testimony that defense counsel declined to present.  Without a further record, this court cannot assess the reasonableness of counsel’s judgment that the testimony was inadmissible.  See generally Torres v. State, 688 N.W.2d 569, 572 (Minn. 2004) (holding that claim of ineffective assistance that requires additional record should be brought in postconviction petition rather than on direct appeal).  Therefore, this court cannot review appellant’s pro se claim of ineffective assistance in this direct appeal.