This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-95-2464

State of Minnesota,

Respondent,

vs.

Allen Leroy Davis,

Appellant.

Filed October 1, 1996

Affirmed

Davies, Judge

Clay County District Court

File No. K695358

Hubert H. Humphrey III, Attorney General, Thomas Erik Bailey, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

Todd S. Webb, Clay County Attorney, Courthouse, P.O. Box 280, Moorhead, MN 56561 (for Respondent)

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Special Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414-3230 (for Appellant)

Considered and decided by Davies, Presiding Judge, Klaphake, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

DAVIES, Judge

Allen Leroy Davis, found guilty of second-degree murder, appeals his conviction and sentence, arguing that: (1) the trial court denied him his constitutional right to a fair trial by permitting the lead investigator to sit at counsel table; (2) the court committed reversible error by refusing to instruct the jury on the elements of a lesser-included offense; and (3) in the alternative, this court must remand the case for resentencing on numerous grounds. We affirm.

FACTS

Appellant Allen Leroy Davis and Roxanne Lynn Waa, his girlfriend of a few weeks, met in the afternoon of March 4, 1995, and eventually went to Waa's apartment in Moorhead.

At about 12:30 a.m., after neighbors heard numerous disturbances, two neighbors downstairs heard a low buzz and followed the noise to Waa's apartment. One of them pounded on Waa's door, but there was no answer. While the neighbor was calling 911, the building's fire alarm sounded. Firefighters arrived at about 1:00 a.m. and found Waa dead on the bedroom floor.

On March 7, appellant was arrested in South Dakota where he had checked into a homeless mission under a false name. He had scratches on his face, chest, stomach, and hands.

The autopsy revealed that Waa died from strangulation by hand and by ligature. Testing revealed that blood found under her fingernails was a mixture of two DNA types, one of them the same as Waa's and the other the same as appellant's. Testing of blood found on Waa's telephone cord (presumably used in her death) revealed that it, too, was a mixture of the same two DNA types.

Appellant was charged and, after a trial by jury, was found guilty of second-degree intentional murder.

D E C I S I O N

I. Investigator at Counsel Table

Prior to trial, the court granted the prosecutor's motion for the lead investigating officer to be present throughout trial and to sit at the counsel table. Appellant's counsel objected to the prosecutor's motion to exempt the investigator from sequestration but, notably, failed to object specifically to having the investigator sit at the counsel table. Appellant now claims that the trial court denied him his constitutional right to a fair trial by permitting the officer to sit at the counsel table.

The investigator's exemption from sequestration and presence in the courtroom--to help the prosecutor coordinate the presentation of 33 witnesses and over 100 exhibits--was justified in light of the comment to Minn. R. Evid. 615, which states:

A request for sequestration in criminal cases rarely should be denied. The committee agrees, however, * * * that investigating officers * * * can be essential to the trial process and should not be excluded.

(Citations omitted.) Moreover, courts reviewing cases where the investigating officer sits at counsel table, while disapproving of the practice, have uniformly refused to reverse on those grounds. See, e.g., State v. Koskela, 536 N.W.2d 625, 631 (Minn. 1995) (expressing concern, but finding no "prejudicial error" in permitting investigating officer to sit at prosecuting counsel's table because officer was first to testify, was not in uniform, and there was no indication of inappropriate intimidation); State v. Schallock, 281 N.W.2d 186, 187-88 (Minn. 1979) (inappropriate for patrolman to sit at counsel table, but new trial not warranted because patrolman's role as witness was minimal and effect of presence was too speculative); State v. Snyder, 375 N.W.2d 518, 523 (Minn. App. 1985) (disapproving of allowing deputy, who was only witness and whose testimony constituted main portion of state's case, at counsel table, but holding that his presence did not constitute reversible error), review denied (Minn. Dec. 13, 1985).

We, too, decline to reverse on this ground, for the facts in the present case are not more egregious than those in Koskela, Schallock, or Snyder. The focus of the officer's testimony in the instant case was on recounting the progress of the investigation: what evidence was collected, when and why it was collected, and by whom. The key facts--those linking appellant to Waa's murder and the circumstances surrounding Waa's death--were initially established through other witnesses.

II. Instruction on Lesser-Included Offense

Appellant claims that the trial court committed reversible error by refusing to instruct the jury on the elements of the lesser-included offense of first-degree manslaughter (heat-of-passion murder).

This determination is within the sound discretion of the trial court, but the lesser-included offense instruction must be given if the evidence provides a rational basis for an acquittal on the charged offense and a conviction on the lesser offense.

State v. Dukes, 544 N.W.2d 13, 20 (Minn. 1996).

To acquit on the greater offense and convict on heat-of-passion murder, the jury would have had to have evidence that appellant killed Waa because he was provoked by "such words or acts of another as would provoke a person of ordinary self-control under like circumstances." Minn. Stat. § 609.20(1) (Supp. 1995).

As appellant himself concedes, the jury never heard evidence of Waa's alleged emotional problems and temper; rather, they heard appellant deny that he had disagreements with Waa the night of the murder. Because the evidence at trial failed to reasonably support a conviction for heat-of-passion murder, the trial court properly refused to give such an instruction.

III. Sentence

The trial court sentenced appellant to the statutory maximum of 40 years' imprisonment, which is the mandatory sentence for an individual convicted of second-degree murder within 15 years of being convicted of a "heinous crime." Minn. Stat. § 609.196 (1994). The court concluded that appellant's 1990 Oregon conviction for first-degree assault is the equivalent of a first-degree assault conviction in this state and, as such, is a heinous crime. Appellant claims that this ruling was in error.

A. Issue Preservation

Appellant argues, first, that we cannot compare the two states' statutes because the Oregon statute was not admitted into evidence. We disagree. The prosecutor tried to introduce the Oregon statute into evidence (although from the wrong year). Thus, the issue of whether the statutes are comparable was before the trial court.

Under Minn. Stat. § 599.04 (1994), we take judicial notice of the Oregon statute.

B. Similarity of Statutes

Next, appellant argues that the Minnesota and Oregon statutes are not similar. This argument is wholly unpersuasive, for the statutes are almost identical. Compare Minn. Stat. § 609.221 (1994) and Minn. Stat. § 609.02, subd. 8 (1994), with Or. Rev. Stat. § 163.185(1) (1989) and Or. Rev. Stat. § 161.015(7) (1989).[1]

C. Use of Extrinsic Records to Prove Crime

Appellant next maintains that the state may not use extrinsic evidence, such as the hospital records and police reports attached to his Oregon conviction, to prove that a foreign conviction is the same as a Minnesota offense. For this argument, he primarily relies on a case predating the sentencing guidelines, State v. Briton, 265 Minn. 326, 121 N.W.2d 577 (1963), overruled on other grounds, State v. Clark, 270 Minn. 538, 552, 134 N.W.2d 857, 867 (1965). But "the continued viability of [Briton] after the passage of the Sentencing Guidelines is questionable." State. v. Stutelberg, 435 N.W.2d 632, 636 (Minn. App. 1989).

Even were the thrust of appellant's argument valid, it does not require reversal. In addition to considering the nature of the offense, as the court was apparently trying to do when it considered the extrinsic evidence, it could have come to the same conclusion by comparing the two statutes. See Minn. Sent. Guidelines cmt. II.B.505 (in addition to nature of offense, sentencing court should consider foreign offense's definition, as well as sentence received, and final determination of weight accorded foreign convictions is left to sentencing court's discretion).

The sentencing court had available a proper ground for considering appellant's Oregon offense in sentencing appellant. We will not reverse simply because we might disagree with its stated reason for doing so. See Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987) (trial court will not be reversed where it reaches right result for wrong reason).

D. Showing of Great Bodily Harm

Finally, appellant argues that even if the hospital records from Oregon were properly admitted at the sentencing hearing, they do not show that appellant caused great bodily harm in Oregon. In light of the above conclusions, we need not address this issue.

Affirmed.

[ ]1 To be found guilty of first-degree assault in Minnesota, a defendant must have inflicted "great bodily harm." Minn. Stat. § 609.221. "Great bodily harm" is

bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.

Minn. Stat. § 609.02, subd. 8.

Similarly, Oregon defines first-degree assault as the "intentional[] caus[ing of] serious physical injury to another by means of a deadly or dangerous weapon." Or. Rev. Stat. § 163.185(1) (1989). "Serious physical injury" is

physical injury which creates a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.

Or. Rev. Stat. § 161.015(7) (1989).