may not be cited except as provided by
IN COURT OF APPEALS
State of Minnesota,
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; Donald F. Ryan, Crow Wing County Attorney, JoLana F. Sonntag, Special Asst. County Attorney, 326 Laurel St., Brainerd, MN 56401 (for respondent)
Considered and decided by Huspeni, Presiding Judge, Short, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Bradley Fordyce appeals his conviction for indecent exposure. Because appellant knowingly and intelligently waived his right to counsel, because the trial court did not abuse its discretion by amending the time of the citation, and because the evidence at trial supported the jury's conviction, we affirm.
During the summer of 1997, appellant Bradley Fordyce lived out of his van at a campsite at the Crosby Pits, an area the public uses for camping, swimming, and boating. On June 22, 1997, an individual called the Crow Wing County Sheriff's Department and reported that appellant was sunbathing in the nude. Responding to the report sometime after 6:30 that same evening, Deputy Kleffman went to appellant's campsite, observed appellant lying naked in a lawn chair, and ticketed him for indecent exposure.
Appellant represented himself at trial. Based on the time on the citation, 16:30 (4:30 p.m.), appellant presumed that the individual who called the police would testify. When appellant referred to that individual's anticipated testimony during his opening statement, the state objected because it intended to base its case only on the testimony of Deputy Kleffman. After the state learned of the time error, and over appellant's objection, the trial court granted the state's motion to amend the time of the citation to 18:30 or 6:30 p.m., the approximate time that Deputy Kleffman observed appellant.
After a one-day trial, a jury convicted appellant of indecent exposure.
The court shall not accept the waiver [of the right to counsel] unless the court is satisfied that it * * * has been made * * * with full knowledge and understanding of the defendant's rights.
The trial court must ensure a knowing and intelligent waiver. State v. Krejci, 458 N.W.2d 407, 412 (Minn. 1990). However, even absent a specific inquiry, the right to counsel is validly waived if "surrounding circumstances * * * make it clear that the defendant was fully aware of the consequences of proceeding pro se." Id. at 412-13 (relevant circumstances include record evidence that trial court and counsel explained nature of charges, possible punishments, and options available). Here, the record establishes that appellant was aware of the consequences of proceeding pro se. He signed the misdemeanor statement of rights. By so doing, he acknowledged that he knew of the charges against him and of the possible punishment, and he waived his right to appointed counsel. In addition, appellant informed the arraignment judge that he wanted to represent himself. The record also establishes that appellant had prior experience with the criminal justice system. See Richards, 456 N.W.2d at 265 (experience with legal proceedings supported defendant's knowing waiver of right to counsel). This record establishes that appellant knowingly and intelligently waived his right to counsel.
Appellant cannot establish that the amendment resulted in his being charged with an "additional or different offense" as required by Ostrem and Gerdes. The charge remained indecent exposure, and appellant's reliance on Caswell is misplaced. See State v. Caswell, 551 N.W.2d 252, 255 (Minn. App. 1996) (reversing amendment where it was "undisputed that the prosecutor moved to add charges"). Further, any prejudice appellant claims as a result of the amendment is undermined by his admission that he was nude at his campsite on June 22, 1997. Appellant's defense, that he was nude but was in a private area and not bothering anyone, was unaffected by the time on the citation or the identity of the witness. See Ostrem, 535 N.W.2d at 923 (holding even when aiding and abetting charge was added, no prejudice shown when alibi defense was unaffected).
who in any public place, or in any place where others are present:
(1) willfully and lewdly exposes the person's body, or the private parts thereof * * *.
Minn. Stat. § 617.23 (1996).
Appellant argues there was no evidence of his intent to be lewd as required by State v. Peery, 224 Minn. 346, 28 N.W.2d 851 (1947). However, appellant's reliance on Peery is misplaced because Peery required evidence of an intent to be lewd "where the act does not occur in a public place." See id. at 353, 28 N.W.2d at 854. Here appellant admitted he was nude, the jury could have found that his nudity occurred in a public place, and the jury could infer the necessary intent. See id. (intent could be established by evidence that display was "in a place so public and open that it must be reasonably presumed that it was intended to be witnessed").
In considering the arguments made in appellant's pro se brief, we disagree that the testimony of Deputy Kleffman exonerates appellant. The following exchange appears to be the testimony relied on by appellant.
[Appellant]: Deputy, if you were out there on your own, you were walking along or riding around or driving around, whatever, and you inadvertently, even, turned into a road and it turned out to be a campsite, and if you saw somebody who was nude, for whatever reason - - people change clothes, take baths, whatever reason - would you have charged them with indecent exposure?
The hypothetical question posed by appellant did not persuade the jury. See Webb, 440 N.W.2d at 430 (evidence must be viewed in favor of jury verdict).
Appellant also argues that he was prejudiced by a comment of a dismissed juror. The trial court informed the panel that appellant was charged with indecent exposure that occurred at the Crosby Pits on June 22, 1997. When asked if anyone on the panel had heard anything about the case one juror responded:
Well, I haven't heard anything about this case, but * * * I take my bike out to - and hit the trails out there, and I believe I've seen this fellow running through the woods.
After this statement, the trial court questioned the juror further in chambers. Only then did the juror refer to an incident where he saw someone running nude that might have been appellant, and the trial court dismissed the juror. Appellant fails to establish how anything the juror said in front of the jury panel may have prejudiced his right to a fair trial.
Appellant also argues that a rebuttal witness the state called was biased and prejudiced against him. However, appellant had the opportunity to cross-examine the witness, and appellant fails to establish any reversible error.