may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed April 13, 1999
Polk County District Court
File No. K2971119
Wayne H. Swanson, Polk County Attorney, Crookston Professional Center, 223 East Seventh Street, Crookston, MN 56716 (for respondent)
John M. Stuart, State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230; and
Michael C. Davis, Special Assistant State Public Defender, 46 East Fourth Street, Suite 1042, Minnesota Building, St. Paul, MN 55101 (for appellant)
Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.
Appellant Jacob Hernandez, Jr., was convicted and sentenced on one count each of first-degree burglary, third-degree criminal sexual conduct, and misdemeanor theft. On appeal, he argues that the district court erred in (1) instructing the jury regarding his failure to comply with the requirement that a defendant disclose to the state prior to trial the defenses he intends to claim; (2) finding that the victims were unavailable as witnesses and admitting into evidence their out-of-court statements to police; and (3) ordering his sentence on the first-degree burglary charge, which was imposed pursuant to the dangerous offender statute, to run consecutively to a previously imposed sentence for a prior burglary conviction. We affirm.
The offenses occurred in a motel room where the victims, D.B., K.B., and their two children, were staying. P.B. and C.B. managed the motel. P.B. testified that shortly after 3:00 a.m., she received a call from a woman, later identified as K.B., who said to call the police because someone was in her motel room, room 140, performing oral sex on her husband. P.B. described K.B. as sounding very frantic.
P.B. and C.B. went to room 140 to investigate before calling police. They testified that when they got to room 140, they found K.B. outside the door and two men, later identified as D.B. and Hernandez, inside. Hernandez, who was fully clothed and wearing a coat, was lying on the floor, and D.B. was on top of Hernandez.
Police arrived about five minutes later. Officer Eric Jensen observed that Hernandez's face was swollen and had blood and abrasions on it. After handcuffing Hernandez, police found D.B.'s wallet on the floor where Hernandez had been pinned. There was no money in the wallet.
After Hernandez was arrested and removed from the scene, Jensen interviewed D.B. and K.B., who said that Hernandez had broken into their motel room through a window screen. D.B. said that when he woke up, Hernandez was performing oral sex on him. D.B. began beating up Hernandez and told K.B. to call police. Hernandez headed for the motel room door, but D.B. caught him and restrained him until police arrived. Jensen described D.B. as crying and upset and K.B. as irate. D.B. said that his wallet was missing and that it had contained $100 to $200.
D.B. gave a statement to Detective-Sergeant Richard Blazek about six and a half hours after the offense occurred. D.B. said that at about 9:00 p.m., he went by himself to a video store to rent a movie and to a Holiday gas station for ice. D.B. returned to the motel after getting the movie and ice, and the whole family went to sleep at about 11:00 p.m. D.B. said he woke up and Hernandez was sucking on his penis. Hernandez ran for the door but was unable to get out because the door was chained. D.B. caught Hernandez, wrestled him to the floor, and yelled for his wife to wake up and take the children out of the room and call the police. After K.B. and the children left the room, Hernandez said that he was in the wrong room, or something to that effect, and started hollering not to call police. D.B. said that he always kept his wallet in the pocket of his shorts, that his shorts had been near the bed when he went to sleep, and that between $100 and $200 was missing from his wallet.
K.B. gave a statement to Blazek about seven hours after the offense occurred. K.B. said she woke up and saw her husband holding down a man and asked what was going on. D.B. told her to call the police. K.B. tried calling 911 from the room phone but was unable to get through. By then, the children were awake, so she grabbed them and left the room. A note in the lobby had a number to call for emergencies, so she called the number and told the person who answered to call the police because a strange man was in their motel room. K.B. had locked herself out when she left the motel room with the children. When the manager let her back into the room, her husband was still holding down Hernandez, and Hernandez said something about being in the wrong room and to please not call the police. K.B. said that the whole family had gone to the video store to rent movies on the evening of August 12, 1997, and that D.B. had later gone by himself to the Holiday gas station to get ice.
Jensen inspected the victims' motel room and the area outside the room. He testified that the room had a window with an air conditioner just below it. The air conditioner went through the wall and protruded about eight inches beyond the outside of the building. Jensen observed a partial footprint on top of the air conditioner where it protruded through the building and saw that the screen had been pulled away from the window of the victims' room. C.B. testified that he walked around the outside of the motel almost every day to inspect it and that after the offense occurred, there was a large tear in room 140's window screen that he had not seen before. Police also found a partial footprint on the air conditioner outside of room 126, seven rooms south of the victims' room. Room 126's window screen had also been tampered with.
Blazek photographed the partial footprints and compared them to the boot Hernandez was wearing on his right foot when arrested. Blazek testified that there were three matching areas between the footprints and Hernandez's boot. He further testified that the footprints were consistent with Hernandez's boot and the matching areas ended with scuffing caused by a person on the air conditioner moving toward the window.
Officer Michelle Manias transported Hernandez from the motel to the police station. Hernandez told Manias that D.B. and K.B. had picked him up at a Holiday gas station and brought him to their motel room. He claimed that D.B. wanted to buy drugs from him and beat him up because he did not have any. When interrogated by police later that day, Hernandez again gave the same version of events. He stated that D.B. and K.B. had picked him up in their car. He described the car as a "bigger car" but could not recall its make or color or whether it was dark colored or light colored. Blazek testified that police searched the victims' room for drugs and drug paraphernalia and did not find any indication of either.
Manias testified that Hernandez had $104 on his person and that the money was in his pocket and not in a wallet. Hernandez denied to police that he had taken money from D.B.'s wallet. Manias testified that Hernandez said that the money belonged to a friend of his but that he could not remember the friend's name. During the later interrogation, Hernandez claimed that he had $100 or $105 with him when he went out the previous evening.
The state introduced evidence that Hernandez had committed the following prior offenses: fifth-degree criminal sexual conduct in January/February 1993; criminal trespass in October 1993; burglary and criminal damage to property in January 1994; burglary in April 1994; attempted criminal sexual conduct in June 1994; theft of a vehicle and two burglaries in July 1995; and invasion of privacy in April 1996.
Detective Raymond Nelson testified that in the four previous burglaries, Hernandez entered residences through windows. Nelson also testified that the victim of the June 1994 burglary had been sleeping and awoke to discover Hernandez stroking his leg and penis. Hernandez attempted to flee when the victim woke up.
L.P., the victim of one of the July 1995 burglaries, testified that Hernandez entered his residence while he was sleeping and that, when he woke up, Hernandez was sucking his penis. Hernandez fled when L.P. awakened. Nelson testified that after leaving L.P.'s residence, Hernandez went to R.S.'s residence, where he crashed through a screen door into the garage and fought with the victim, hitting and biting him.
Hernandez testified at trial that he had worked as a prostitute on and off during the previous year and a half. He testified that D.B. approached him at an adult bookstore and asked him to engage in three-way sex with D.B. and his wife. Hernandez testified that he got into a pick-up truck with D.B., and they went to a secluded area where Hernandez performed oral sex on D.B. According to Hernandez, D.B. then brought him to the motel room. Hernandez testified that he initially engaged in sexual acts with D.B. and his wife but became uncomfortable and decided to leave because the children were sleeping in the room, and he was afraid that they might wake up. Hernandez testified that the victims became angry when he refused to return the $100 that they had paid him and began hitting and kicking him and prevented him from leaving.
Hernandez acknowledged that the story he had initially told police about the victims wanting to buy drugs from him was false. He claimed he made up the story because he was concerned about the stigma associated with being a male prostitute and because he was concerned that engaging in prostitution would be grounds for automatic revocation of his probation. Another witness corroborated Hernandez's testimony that he worked as a prostitute.
The jury found Hernandez guilty of first-degree burglary, third-degree criminal sexual conduct, and misdemeanor theft. The district court found that Hernandez was a dangerous offender and sentenced him to an executed term of 240 months imprisonment, the statutory maximum, on the first-degree burglary conviction. Minn. Stat. § 609.152, subd. 2 (1996) (increased sentences for dangerous offenders). The district court ordered the 240-month sentence for the current burglary offense to be served consecutively to a 68-month sentence for a prior burglary conviction. The district court also sentenced Hernandez to concurrent executed sentences of 111 months imprisonment on the third-degree criminal sexual conduct conviction, and 90 days imprisonment on the misdemeanor theft conviction.
the court may * * * order such party to permit the discovery or inspection, grant a continuance, or enter such order as it deems just in the circumstances.
Minn. R. Crim. P. 9.03, subd. 8. The imposition of sanctions for violations of discovery rules is a matter particularly suited to the district court's judgment and discretion, and we will not reverse the district court's decision absent a clear abuse of discretion. State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).
Minn. R. Crim. P. 9.02, subd. 1(3)(a) provides:
The defendant shall inform the prosecuting attorney in writing of any defense, other than that of not guilty, on which the defendant intends to rely at the trial, including but not limited to the defense of self-defense, entrapment, mental illness or deficiency, duress, alibi, double jeopardy, statute of limitations, collateral estoppel, defense under Minn. Stat. § 609.035 [when conduct constitutes more than one offense, defendant may be punished for only one of the offenses], or intoxication.
The day before trial, Hernandez disclosed to the state that he intended to call two additional witnesses. The day of trial, Hernandez disclosed that he intended to present a consent defense and that the two witnesses would corroborate his claim that he worked as a prostitute. Over the state's objection, the district court ruled that Hernandez would be allowed to present his consent defense and that the two witnesses would be allowed to testify. Hernandez called only one of the witnesses, and she corroborated his testimony that he worked as a prostitute.
As a sanction for Hernandez's failure to timely disclose his consent defense and the names of witnesses he intended to call to support it, the district court instructed the jury as follows:
The Minnesota Rules of Criminal Procedure require a criminal defendant, who intends to offer evidence of defenses, such as consent, to inform the prosecuting attorney prior to trial of such defenses and to inform the prosecuting attorney of the names and addresses of the witnesses the defendant intends to call at the trial in support of such defenses. In this case, you have heard consent evidence regarding the charges which are alleged to have been committed by [Hernandez] * * *. However, [Hernandez] did not comply with the pretrial notice requirements. You may consider that fact when deciding the validity of [Hernandez's] consent defense.Hernandez first argues that he was not required to disclose his consent defense because lack of consent is an element of the criminal sexual conduct offense with which he was charged. Therefore, Hernandez contends, because the state always had the burden of proving that he acted without the consent of his victim, the state knew when he pleaded not guilty that it would have to prove lack of consent, and he was not required to give additional notice of his consent defense. See Minn. Stat. § 609.344, subd. 1 (1996) (person who engages in sexual penetration with a complainant under specified circumstances commits third-degree criminal sexual conduct); Minn. Stat. § 609.341, subd. 12 (1996) (defining "sexual penetration" as specified "acts committed without the complainant's consent"). We disagree.
Some of the defenses expressly included in Minn. R. Crim. P. 9.02, subd. 1(3)(a), such as intoxication and duress, are defenses that can negate an essential element of a crime. See State v. Charlton, 338 N.W.2d 26, 30 (Minn. 1983) (when specific intent is an element of a crime and duress is raised as a defense, burden of proving duress cannot be placed on defendant "because a criminal result compelled through force negates the purposeful intent that the state is required to show"). Even though these defenses do not require the state to prove something that it did not already have to prove, the rule expressly requires a defendant to provide notice that the defenses will be relied on at trial.
Hernandez argues that defenses like duress are distinguishable from his consent defense because, when defenses like duress are raised, the defendant admits to one or more elements of a crime. But, in claiming consent, Hernandez admitted to engaging in sexual conduct that is an element of third-degree criminal sexual conduct.
When preparing for trial, knowing that it will be necessary to prove each element of an offense is not the same thing as knowing that a particular element of an offense will be disputed at trial. As part of his consent defense, Hernandez introduced the following facts into the case that would not otherwise have been at issue: he worked as a prostitute; he met D.B. at an adult bookstore; and D.B. gave him a ride in a pick-up truck. Without notice of the consent defense, the state did not have notice that these facts would be at issue during the trial.
Hernandez also argues that he was not required to disclose his consent defense because he testified to it himself. Caselaw, however, indicates that Minn. R. Crim. P. 9.02, subd. 1(3)(a), does apply to a defense presented by the defendant's own testimony. See State v. Graffice, 294 N.W.2d 324, 326 (Minn. 1980) (when defendant did not comply with specific notice requirements for alibi defense set forth in Minn. R. Crim. P. 9.03, subd. 1(3)(c), and state did not learn of alibi until defendant testified at trial, trial court did not err in sanctioning defendant by allowing prosecutor to elicit evidence showing that trial testimony differed from notice of alibi). Hernandez does not cite authority supporting the position that it is unconstitutional to apply Minn. R. Crim. P. 9.03, subd. 1(3)(c), when a defendant presents a defense by his own testimony.
The language of Minn. R. Crim. P. 9.02, subd. 1(3)(a), is very broad, requiring disclosure of "any defense, other than that of not guilty." Moreover, disclosure of defenses is a discovery function under the rules of criminal procedure. State v. Lee, 491 N.W.2d 895, 899 (Minn. 1992). The purpose of discovery rules is "`to give the defendant and prosecution as complete discovery as is possible under constitutional limitations.'" State v. Schwantes, 314 N.W.2d 243, 245 (Minn. 1982) (quoting Minn. R. Crim. P. 9 cmt.). We conclude that Hernandez was required to disclose his consent defense under Minn. R. Crim. P. 9.02, subd. 1(3)(a).
Hernandez next contends that the district court's jury instruction regarding the disclosure requirement misstated the law. The district court instructed the jury that a defendant is required to inform the prosecuting attorney of defenses and witnesses whom he intends to call in support of the defenses. But a "defendant is not required to indicate the witnesses intended to be used for each defense except in the case of the defense of alibi." Minn. R. Crim. P. 9 cmt. A defendant, however, is required to disclose all witnesses and any of their relevant written or recorded statements. Minn. R. Crim. P. 9.02, subd. 1(3) (a), (b); see also State v. Sandberg, 406 N.W.2d 506, 508 (Minn. 1987) (Minn. R. Crim. P. 9.02, subd. 1(3)(a), requires defendant to make a complete disclosure of the names of persons that the defendant intends to call as trial witnesses). Essentially, the district court's instruction correctly stated the law.
Hernandez also argues that the disclosure instruction improperly placed the burden of proving consent on him. The argument is not persuasive. The language of the instruction did not indicate that Hernandez had the burden of proving consent. The district court specifically instructed the jury that the state had the burden of proving the elements of the offenses beyond a reasonable doubt and that the occurrence of sexual penetration "without the consent of [D.B.]" was an element of third-degree criminal sexual conduct. Also, after explaining each of the elements of third-degree criminal sexual conduct, the district court instructed the jury that, if it found that any of the three elements of third-degree criminal sexual conduct had not been proved, Hernandez was not guilty of the offense.
Hernandez next argues that by failing to inform him of the potential sanction before he presented his consent defense, the district court deprived him of the opportunity to make an informed decision regarding whether to present his consent defense. Hernandez does not cite any authority requiring the district court to apprise a defendant of potential sanctions or jury instructions when ruling on the admissibility of evidence.
Even if the district court should have informed Hernandez about the potential sanction, this court will not reverse a conviction based on an improper discovery sanction if the error was harmless beyond a reasonable doubt. State v. Rasinski, 472 N.W.2d 645, 649 (Minn. 1991). In applying the harmless error test, this court
must look to the basis on which the jury rested its verdict and determine what effect the error had on the actual verdict. If the verdict actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt.
State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997).
Hernandez's consent defense was inconsistent with his initial statements to police. Initially, Hernandez told police that the victims wanted to buy drugs from him and that he met both K.B. and D.B. at a Holiday gas station and rode with them in their car to the motel. In presenting his consent defense, Hernandez testified that he was approached by D.B. at an adult bookstore, that K.B. was not present at the time, and that he rode with D.B. in a pickup truck. Initially, Hernandez told police that the $104 found on his person belonged to a friend whose name he could not recall and that he had the money with him when he went out that evening. At trial, he testified that the victims paid him $100. The consent defense also was inconsistent with evidence that Hernandez's footprint was on the air conditioner outside of the victims' motel room and that the room's window screen was torn. The physical evidence was very strong evidence that Hernandez's entry into the victims' motel room was nonconsensual. Given the significant and obvious contradictions between Hernandez's consent defense and other evidence in the case, the verdict was surely unattributable to the jury instruction regarding the disclosure requirement.
2. Hernandez argues that the district court erred in determining that the victims were unavailable as witnesses and admitting into evidence the statements that they gave to police several hours after the offense occurred. "Evidentiary rulings generally rest within the trial court's discretion and will not be reversed absent a clear abuse of discretion." State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996).
Minn. R. Evid. 804(b)(5) provides that the hearsay rule does not exclude the following evidence if the declarant is unavailable as a witness:
A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
Hernandez first contends that the district court erred in determining that the victims were unavailable. A declarant is unavailable if he or she "is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance * * * by process or other reasonable means." Minn. R. Evid. 804(a)(5). "The ultimate question [in determining unavailability] is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness." Ohio v. Roberts, 448 U.S. 56, 74, 100 S. Ct. 2531, 2543 (1980).
Anita Brekken of the Polk County Attorney's office documented the efforts that she made to contact the victims. On August 13, 1997, Brekken spoke to K.B. by telephone. K.B. ended the conversation abruptly and said she would call Brekken right back but did not do so. The following day, Brekken attempted unsuccessfully to contact the victims by telephone. Five days later, Brekken mailed a letter to the victims' home address in Tennessee stating that it was very important for them to contact her and listing a toll-free number. On September 24, 1997, Brekken mailed a letter signed by county attorney Wayne Swanson requesting that the victims contact Brekken or Swanson and listing a toll-free number. On October 1, 1997, Brekken attempted to contact the victims by telephone, but the number she had been given for their home was disconnected. Brekken also contacted the Shelby County, Tennessee sheriff's office, which had no telephone number for the victims and the same address as Brekken already had. On October 2 and 7, 1997, Brekken left messages requesting that someone from Shelby County social services contact her, but no one responded to her request.
On October 2, 1997, Swanson wrote to the Shelby District Attorney's Office, requesting its assistance in compelling the victims to appear at the trial, then scheduled for October 21, 1997. On October 17, 1997, a Shelby district attorney wrote a letter to Swanson stating:
Calling the phone number you provided produced a telephone answering machine. The recording said that no incoming messages would be recorded. Our investigator then personally drove to the address you provided * * *. He encountered a five-foot chain-link fence with a lock that prevented him from driving to the residence located there. He left a copy of the subpoena issued by the Court in the mail box * * *.
This petition was scheduled for today, but the witnesses did not show.
After the trial was continued until January, the Polk County Attorney's Office apparently contacted the Shelby District Attorney's Office again. On January 2, 1998, a criminal investigator for the Shelby District Attorney's Office wrote a letter to Swanson. The letter stated that the investigator had spoken to the victims' former landlord, a neighbor, and a friend and learned that the victims had moved, apparently to another state. The investigator was unable to obtain a forwarding address.
The state's efforts to locate the victims were sufficient to support the district court's finding of unavailability. See Ohio v. Roberts, 448 U.S. at 75-76, 100 S. Ct. at 2543-44 (unavailability established when record showed prosecutor attempted to subpoena witness on five separate occasions over period of several months, had no clear indication of witness's whereabouts, and talked to witness's mother in effort to locate witness).
Hernandez also contends that the statements the victims gave to police six to seven hours after the offense were inadmissible because they lacked sufficient guarantees of trustworthiness. In determining whether a statement has particularized guarantees of trustworthiness, the court examines the totality of the circumstances that surround the making of the statement. State v. Grube, 531 N.W.2d 484, 489 (Minn. 1995). The following factors are relevant to determining the trustworthiness of hearsay statements:
(1) whether the context of the statements and the persons to whom they were made suggest that they were reliable; (2) whether the declarant had a motive for lying or problems with memory; and (3) whether the declarant had personal knowledge of the identity and role of the participants in the crime.
Id. A statement admissible under an exception to the hearsay rule is still subject to constitutional analysis and must bear sufficient "indicia of reliability" to avoid a conflict with the confrontation clause. State v. Hansen, 312 N.W.2d 96, 102 (Minn. 1981).
"[E]x parte statements made during police questioning have traditionally been considered as inherently untrustworthy." Id. at 103. Hansen involved two statements to police. One was given by an accomplice exculpating himself and inculpating the defendant after being promised leniency by police. The second was given by the accomplice's wife after being promised a reward for information. The supreme court concluded that the statements lacked sufficient guaranties of trustworthiness for purposes of the Confrontation Clause. Id.
The victims' statements here have stronger guaranties of trustworthiness than the statements in Hansen. The record does not indicate that the victims were under investigation when they gave their statements or that they were promised anything in exchange for their statements. The statements they gave to police six to seven hours after the offense occurred were consistent with their earlier statements to police. Hernandez argues that an arrest warrant for D.B. for assault shows that the victims had a character for untruthfulness. The existence of the arrest warrant by itself is insufficient to establish a character for untruthfulness.
Even if the district court erred in admitting into evidence the statements that the victims gave six to seven hours after the offense occurred, a claim that the erroneous admission of evidence deprived a defendant of his constitutional right to confront the witnesses against him is subject to harmless error analysis. State v. Wildenberg, 573 N.W.2d 692, 698 (Minn. 1998). When determining whether the erroneous admission of evidence was harmless error, an appellate court must
"examine the entire trial record and determine whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict; * * * if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the evidence had not been admitted, then the error in admitting the evidence was prejudicial error."
State v. Byers, 570 N.W.2d 487, 498 (Minn. 1997) (quoting State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994)).
The victims' later statements contained essentially the same information about the offense as their initial statements, and Hernandez does not challenge the admission into evidence of the earlier statements. Moreover, the evidence against Hernandez was strong. As discussed previously, there were significant and obvious contradictions between Hernandez's consent defense and other evidence in the case. Also, the unusual modus operandi of the current offense matched that of prior offenses committed by Hernandez. Any error in admitting the victims' later statements into evidence was harmless.
3. The district court concluded that Hernandez was a dangerous offender and sentenced him to an executed term of 240 months imprisonment on the first-degree burglary conviction. Minn. Stat. § 609.152, subd. 2 (1996). Hernandez concedes that the 240-month sentence was proper. See State v. Rachuy, 502 N.W.2d 51, 52 (Minn. 1993) (sentencing departure permissive under guidelines when statutory ground exists to support departure). However, Hernandez argues that ordering the 240-month sentence to run consecutively to the 68-month sentence for the prior burglary was a departure and improper because the record does not support both a sentence under the dangerous offender statute and a departure as to consecutive service. Consecutive sentencing, however, is permissive under the guidelines in the following situation:
A current felony conviction for a crime against a person may be sentenced consecutively to a prior felony sentence for a crime against a person which has not expired or been discharged.
Minn. Sent. Guidelines II.F.
A burglary conviction is a crime against the person for purposes of consecutive sentencing when the offense "obviously involved special danger to human life." State v. Nunn, 297 N.W.2d 752, 754 (Minn. 1980); see State v. Henderson, 394 N.W.2d 561, 564 (Minn. App. 1986) (burglary was crime against person when defendant kicked in door and threatened victim with gun and knife), review denied (Minn. Dec. 17, 1986).
When he was sentenced for the current offense, Hernandez had unexpired sentences for the L.P. and R.S. burglaries. Hernandez sexually assaulted L.P. and fought with R.S. These facts make those offenses crimes against persons. The district court did not err in sentencing Hernandez under the dangerous offender statute and also ordering the sentence to run consecutively to his prior unexpired sentence.
4. We have considered the issues raised by Hernandez in his pro se supplemental brief and find them to be without merit. Hernandez argues that Detective Blazek committed perjury when he testified that he knew there was an arrest warrant for D.B. for assault but did not know whom D.B. was alleged to have assaulted. Hernandez does not cite to evidence in the record showing that Blazek knew the identity of the victim of the alleged assault. Hernandez also argues that the jury was biased against him because he was a homosexual and a prostitute, but the record does not demonstrate any such bias.