This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Filed October 9, 2007
Anoka County District Court
File No. K4-05-12316
Lori Swanson, Attorney General, 1800
Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson,
Assistant Public Defender,
Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Ross, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from a conviction and sentence for third-degree burglary, criminal damage to property, and harassment, appellant argues that (1) he was denied the effective assistance of counsel, and (2) the district court erred by failing to give a cautionary instruction on the use of relationship evidence, excluding alternative-perpetrator evidence, and sentencing him separately on the harassment and criminal-damage-to-property convictions. We affirm.
D E C I S I O N
Ineffective assistance of counsel
Appellant Robert Croteau argues that his trial counsel was
ineffective. A defendant claiming
ineffective assistance of counsel must prove that his counsel’s representation
fell below an objective standard of reasonableness and that there is a
reasonable probability that, but for counsel’s errors, the outcome would have
been different. Gates v. State, 398 N.W.2d 558, 561 (
To allow counsel “flexibility to represent a client to the fullest
extent possible,” our review of the performance prong does not include
reviewing attacks on counsel’s trial strategy.
Opsahl v. State,677
N.W.2d 414, 421 (
Appellant first argues that his
counsel failed to object to evidence seized during a warrantless search of the
apartment where he was staying. The
In December 2005, police responded to a break-in at the Anoka City Shops. There were fresh pry marks on the frame of a window that was used to enter the building, and shoe prints with a distinctive pattern left in the snow beneath the window. A city plow truck was missing, which was recovered a short time later damaged. The same distinct shoe print was found near the vehicle, and officers tracked the prints to an apartment complex.
Shortly after responding to the break-in, police received a report of a vehicle that had struck a building. Witnesses reported seeing a white plow truck with the words “Anoka City” printed on it run into a van, push it into a tree, and then into the building. A.M., the wife of the van’s registered owner, told officers that she suspected that appellant was responsible for damaging the vehicle. Police records confirmed that two months earlier, A.M. had reported that appellant had been harassing her.
Officers obtained appellant’s physical description, which indicated that he was the appropriate size to have fit through the window and gate at the City Shops. Officers then went to an apartment complex where appellant stayed. The caretaker explained that appellant had been evicted the previous day. After speaking with a tenant, officers learned that appellant was staying in a different apartment. Officers knocked on the apartment door and identified themselves, but nobody responded. Officers observed someone inside look through the door peephole and heard movement inside. Because the officers knew that appellant was violent and had evaded police in the past, they believed that appellant was going to exit through another door. The caretaker opened the door and appellant was feigning sleep in the living room. The soles of a pair of shoes next to appellant, which appellant acknowledged were his, matched the pattern of the shoe prints found in the snow. Officers also found a screwdriver with a broken tip, which was later determined to be consistent with the pry marks on the window frame at the City Shops.
Appellant argues that he had a reasonable expectation of privacy
in the apartment because he was an overnight guest. Overnight guests may claim protection under
the Fourth Amendment. Minn. v. Carter,525
Appellant also argues that the
warrantless search was not justified by the caretaker’s consent. Under the consent exception to the warrant
requirement, a warrantless search is reasonable if police obtain consent that
is voluntarily given by a person authorized to consent and the search does not
exceed the scope of the consent. State v. Thompson, 578 N.W.2d 734, 740 (
Appellant next argues that his attorney was ineffective for conceding to the admission of relationship evidence. Appellant argues that evidence that he previously threatened A.M. was inappropriately admitted under Minn. Stat. § 634.20 (2004), because he and A.M. had never been in a domestic relationship and the evidence was more prejudicial than probative.
Minn. Stat. § 634.20 provides:
Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. ‘Similar conduct’ includes, but is not limited to, evidence of . . . [harassment] . . . . ‘family or household members’ have the meanings given under section 518B.01, subdivision 2.
A family or household member includes (1) spouses and former spouses; (2) parents and children; (3) blood relatives; (4) persons who are or have resided together; (5) persons with a child in common; (6) a man and woman if the woman is pregnant and the man is the alleged father; and (7) persons involved in a significant romantic or sexual relationship. Minn. Stat. § 518B.01, subd. 2(b) (2004). Appellant and A.M. did not have a statutorily defined relationship; therefore, the evidence was not relationship evidence under Minn. Stat. § 634.20. The issue then is whether appellant received ineffective assistance of counsel because his attorney did not object to the admission of the evidence of appellant’s prior threats. Appellant must prove that his attorney’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for the error the outcome would have been different. Gates, 398 N.W.2d at 561.
The state introduced evidence of appellant and A.M.’s relationship to show motive behind the harassment charge. Appellant’s attorney did not object. A.M. testified that she knew appellant and had purchased a bike from him. The bike did not work, and A.M. requested a refund, but appellant refused. Approximately one month later, appellant gave A.M. money to purchase marijuana for him. A.M. took the money, but did not buy marijuana for appellant. Appellant began calling A.M. and leaving “angry” messages. Appellant also sent A.M. text messages—one read “karma is a sick b***h,” and another read “you’ll be lucky to just end up in a wheelchair.” A.M. asked appellant to stop sending her messages, and he told her that he would “slash [her] throat”; after that, A.M. called the police.
There is not a reasonable probability that the outcome would have been different had this evidence not been admitted. There was sufficient evidence for the jury to find appellant guilty of third-degree burglary and criminal damage to property—officers found appellant’s shoe prints in the snow that led back to the apartment building where appellant was staying; a screwdriver was found in his belongings that matched the pry marks around the window; and witnesses saw a city truck with an attached snowplow push a van into a building. Although the evidence that appellant had previously threatened A.M. showed his motive in causing damage to her van, the evidence that she had received money from him to purchase marijuana and then kept the money also shows motive. Thus, there is not a reasonable probability that the outcome would have been different without the evidence that appellant had previously threatened A.M.
Appellant also argues that his
attorney failed to request a cautionary instruction on the use of relationship
evidence. But the decision to request
jury instructions is a tactical matter. State
N.W.2d 627, 635 (
Finally, appellant argues that his attorney failed to pursue an alternative-perpetrator theory. A defendant is afforded a fair opportunity to defend against criminal charges, including a right to present evidence of other crimes, wrongs, or bad acts committed by an alleged alternative perpetrator in order to cast reasonable doubt upon the identification of the defendant as the person who committed the charged crime. Chambers v. Mississippi, 410 U.S. 284, 294, S. Ct. 1038, 1045 (1973); State v. Gutierrez, 667 N.W.2d 426, 436-37 (Minn. 2003). This type of evidence is inadmissible absent some evidence having an inherent tendency to connect the alternative perpetrator with the crime. State v. Hawkins, 260 N.W.2d 150, 159 (Minn. 1977).
A.M. testified that her ex-boyfriend had at one point lived in the apartment complex where appellant was found. Prior to closing arguments, the district court instructed appellant’s attorney to avoid referring to evidence “that connects a specific alternative party with  commission of the crime, because [she had] not laid the foundation for a [Hawkins]offer.” The district court clarified:
You may name no person, including this old boyfriend. Because if you name that person then you’re attempting an alternative perpetrator defense . . . [you] can argue that there are thousands of people who might have done this, and [you] can argue it however [you] want to. What I don’t want you doing is attempting to back-door an alternative perpetrator by saying well, you know there is Mr. Whatever his name is, because there is no evidence in the record. None. The evidence is very clear.
The only evidence was that A.M.’s ex-boyfriend had at one point lived in the apartment complex where appellant was found. Because there was no evidence connecting anyone else to the crimes, appellant’s attorney did not provide ineffective assistance of counsel by failing to present an alternative-perpetrator defense. Appellant has failed to show that he received ineffective assistance of counsel.
Appellant argues that the
district court should have given the jury a cautionary instruction on the use
of relationship evidence. Whether
evidence requires a cautionary instruction is a matter left to the discretion of
the district court. Muehlhauser v.
Erickson, 621 N.W.2d 24, 30
Although the district court did not give a
cautionary instruction, absent a request, that failure is not reversible error. State v. Meldrum, 724 N.W.2d 15, 21 (Minn. App. 2006),
review denied (Minn. Jan. 24, 2007).
And failure to propose a specific jury
instruction or to object to an instruction generally constitutes a
waiver of the right to appeal. State
v. Cross,577 N.W.2d
721, 726 (
Even if we were to consider appellant’s challenge, he would not prevail. “This court must look at the entire record to determine if there is a significant likelihood that the jury misused the evidence, resulting in the evidence improperly affecting the verdict.” Meldrum, 724 N.W.2d at 21-22. Here, there was more than sufficient evidence supporting appellant’s conviction. And although the state questioned A.M. about the threats she received from appellant, the prosecutor never suggested an improper use of the “relationship” evidence. See State v. Bissell, 368 N.W.2d 281, 283 (Minn. 1985) (concluding that the failure to give a cautionary instruction was not prejudicial because “no one suggested that the evidence should be used for any [improper] purpose”). Here, the state used the evidence to explain the history of the relationship and appellant’s intent and motive. Because other evidence offered during the trial negated the allegation that the probative value of the relationship evidence is outweighed by the potential for unfair prejudice, the district court did not commit plain error in failing to sua sponte give a cautionary instruction on the use of the relationship evidence.
appellant argues that the district court should not have imposed concurrent
sentences for harassment and criminal damage to property because those crimes
involved the same behavioral incident. A
district court has broad discretion in sentencing, and such a decision will not
be reversed absent a clear abuse of discretion.
See State v. Kindem, 313 N.W.2d 6, 7 (
An exception to the
single-behavioral-incident rule allows the imposition of multiple sentences
when (1) there are multiple victims; and (2) multiple sentencing does not
unfairly exaggerate the criminality of the defendant’s conduct. State
v. Marquardt, 294 N.W.2d 849, 850-51 (