This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed March 13, 2007
Affirmed in part and vacated in part
Clay County District Court
File No. K7-05-467
Brian J. Melton, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, Moorhead, MN 56560; and
Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
John M. Stuart, State Public Defender, Lydia Villalva Lijo,
Assistant Public Defender,
Considered and decided by Randall, Presiding Judge; Hudson, Judge; and Dietzen, Judge.
Appellant challenges his convictions of terroristic threats, false imprisonment-intentional restraint, violation of domestic abuse no-contact order, misdemeanor domestic assault, and the sentences imposed, arguing that the district court erred by (1) failing to obtain appellant’s waiver of his right to testify, (2) giving the no-adverse-inference instruction to the jury without appellant’s consent, and (3) imposing multiple sentences arising out of offenses that were part of the same behavioral incident. We affirm the convictions and sentences except the sentence for misdemeanor domestic assault, which is vacated.
Appellant Raul Garcia and Tracy Lorsung (the victim) lived together for about seven and one-half years and have five children. In May 2004, the victim obtained an order for protection against appellant. In August 2004, the victim complained to the Clay County Sheriff’s Department that she had been abducted and beaten by appellant. Appellant was subsequently charged with making terroristic threats, false imprisonment-intentional restraint, violation of a domestic abuse no-contact order, and misdemeanor domestic assault.
trial, the victim testified that she was dancing at Fox’s Bar in
The victim stated that appellant later returned to the bar and tried to prevent her from dancing with Ace. Appellant and Ace went outside, and the victim remained in the bar. Later, when the victim and her two cousins were leaving the bar, appellant got out of a white pickup and began to argue with the victim. The victim stated that appellant, who had a “mean look” on his face, grabbed her and forced her into the pickup. She stated that she was unable to escape because the safety locks were in use. Appellant then got into the pickup, pushed the victim’s head under the steering wheel, and struck her in the head with his fist four times.
Appellant drove the victim to a rural area, but en route he pulled over three times and hit her each time. Appellant then forced the victim out of the truck and kicked her in the head and stomped her face against the gravel road. When the victim refused to get back into the truck, appellant hit her in the head and forced her back into the truck. Appellant then drove the victim to an area about a block from her home and released her.
The victim testified that appellant also threatened to kill her in the parking lot, in the pickup, and in the rural area. About noon the next day, the victim reported the incident to deputy Darin Bredman, who took photographs. The photographs showed redness, bruising and cuts on the top of the victim’s nose, bruising on her right arm and left hand, and redness and scratches on various parts of her head, chest, and arms. The victim’s two cousins, Stephanie Lorsung and Penny Guttormson, corroborated her testimony as to the confrontations at the bar and in the parking lot.
Laura Lorsung, another cousin of the victim, testified for appellant. She stated that the victim left the bar with her, and they went to a restaurant and had breakfast. She admitted she was romantically involved with appellant. Appellant did not testify at trial. The jury returned guilty verdicts on all four counts.
At sentencing, appellant’s counsel argued that appellant should only be sentenced on the terroristic-threats conviction, based on Minn. Stat. § 609.035, which prohibits multiple punishment for offenses that arise out of the same behavioral incident. The district court imposed individual sentences on all four counts. This appeal followed.
D E C I S I O N
that the district court erred by not inquiring on the record whether he waived
his right to testify. Both the
The record does not contain any discussion of appellant’s waiver of his right to testify. Appellant suggests the absence of such evidence in the record prevents the court from presuming that such a waiver was made voluntarily and intelligently. But the rule articulated in Smith requires that the court presume a voluntary and intelligent waiver unless there is evidence in the record that suggests the contrary. 299 N.W.2d at 506. Appellant has presented no evidence to overcome the Smith presumption, and the district court is not required to make such an inquiry into defendant’s waiver. Walen, 563 N.W.2d at 751.
Appellant argues that the district court erred by giving the no-adverse-inference instruction to the jury without first obtaining his permission on the record. At trial, the district court gave the following instruction: “The defendant has the right not to testify. This right is guaranteed by the federal and state constitutions. You should not draw any inference from the fact that the defendant has not testified in this case.”
It is error to give a jury
instruction on a defendant’s right not to testify without first obtaining the
defendant’s permission on the record. State v. Clifton, 701 N.W.2d 793, 798 (
An error is “plain” if it is
“clear” or “obvious.” State v. Ihle, 640 N.W.2d 910, 917 (
But even if it was plain
error to give the no-adverse-inference jury instruction, appellant bears a
heavy burden of showing that substantial rights have been affected. Griller,
583 N.W.2d at 741. In considering this
factor, we look not only at the strength of the evidence, but also at the
impact the error had on the jury’s verdict.
On this record, appellant
has not shown that the error affected the outcome of the case. Here, the evidence in support of the
conviction was strong. Appellant’s girlfriend
testified that the victim left the bar with her and they drove to a local
establishment for breakfast. But her
testimony was contradicted by three other witnesses who observed the
confrontations in the bar and in the parking lot. And one witness saw appellant force the
victim into his pickup. Appellant’s
failure to testify was not raised by either party during closing argument. Thus, appellant has not shown that there is a reasonable
likelihood that giving the instruction had a significant effect on the jury’s
verdict. Griller, 583 N.W.2d at
741. Furthermore, our supreme court has
previously held that giving a no-adverse-inference instruction without
permission was not prejudicial. See, e.g., Darris, 648 N.W.2d at 240-41; State v. Thompson, 430
N.W.2d 151, 153 (
argues that his sentence for false imprisonment, for violating a domestic abuse
order, and for assault should be vacated because they all arose from the same
behavioral incident as the terroristic threats conviction. “The district court’s decision of whether
multiple offenses are part of a single behavioral incident is a fact
determination and should not be reversed unless clearly erroneous.” State v. Carr, 692 N.W.2d 98, 101 (
multiple offenses arose out of a single behavioral incident depends on the
facts and circumstances of the particular case.
State v. Hawkins, 511 N.W.2d
9, 13 (
The district court imposed concurrent 15-month sentences for terroristic threats and false imprisonment, which were both stayed. Jail sentences were imposed for the violation of the domestic abuse no-contact order and for misdemeanor domestic assault.
Respondent concedes that appellant should not have received
a separate sentence for the misdemeanor domestic assault conviction because the
assault occurred at substantially the same time and place as the false
imprisonment. We agree. The record is clear that appellant put the
victim in his truck against her will and assaulted her over the next two or
three hours. Consequently, we conclude
that the misdemeanor domestic assault sentence, as the lesser sentence, should
Appellant argues that all offenses for which he was convicted arose from one episode that occurred over the course of that evening. We disagree. Appellant’s conviction of the domestic abuse no-contact order is easily distinguishable as a separate event. Appellant violated the no-contact order by confronting the victim at the bar at approximately 11:00 p.m. and then did not return for approximately two hours. This particular offense was separated by several hours from the false imprisonment. And we conclude that violation of a domestic abuse no-contact order has a clearly different criminal objective, and is distinguishable from, false imprisonment or terroristic threats.
We turn then to appellant’s convictions of terroristic threats and false imprisonment. Appellant argues that those offenses occurred at the same place—the bar and the bar parking lot and as part of one continuous event. We disagree. Here, the locations are not substantially the same—the terroristic threats occurred inside the bar, and the false imprisonment began at the parking lot when the victim was forced into appellant’s truck and continued until she was released. And the crimes were separated in time by approximately 45 minutes.
The recent case of State v. Bookwalter supports our conclusion. In Bookwalter, the defendant, who was hiding in the victim’s car, forced her to pull over, and then sexually assaulted her in her car. After driving a little further, the defendant made the victim get out of the car and attempted to murder her in order to cover up the sexual assault. Bookwalter, 541 N.W.2dat 295. The supreme court determined that the sexual assault and attempted murder occurred at two distinct places and were not part of the same behavioral incident. On this record, we cannot conclude that the offenses in this case satisfy the unity of “time and place” or constitute a “continuous and uninterrupted course of conduct.” Bookwalter, 541 N.W.2dat 295; Johnson, 653 N.W.2d at 652.
argues that the offenses demonstrate a single state of mind and criminal
objective which was to “control” the victim. Respondent argues that the desire to “control”
the victim is too generic a motive to classify distinct crimes as a single
behavioral incident. A single criminal
objective must demonstrate a unity of purpose or be the result of a “single
motivation directed toward a single goal.” State v.
exists in the record that appellant harassed, threatened, and expressed anger
at the victim in an effort to intimidate her into not dancing with another man.
When he later imprisoned and beat the
victim, his intention seems to have been to punish the victim and prevent any
other man from being with her. On this
record, it is not clear that appellant’s actions were the result of a single
motivation directed toward a single goal or the result of a prearranged plan. See Reiland,
if appellant’s actions may be understood as an attempt to “control the victim,”
that motive is too generic to bring together a series of distinct events and under
the rubric of a “single criminal objective.” See
State v. Eaton, 292 N.W.2d 260, 267 (
crimes were not unified by time, place, or purpose and, therefore, were not part of the same behavioral incident, was not clearly erroneous. See Carr, 692 N.W.2d at 101.
Affirmed in part and vacated in part.
 The supreme court has specifically declined to use its supervisory powers to impose a requirement that trial courts perform an “on-the-record colloquy with every criminal defendant who does not testify.” Walen, 563 N.W.2d at 751-52.