This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).





State of Minnesota,



Jonathan Edward Buhl,


Filed February 3, 1998

Affirmed; remanded for resentencing

Short, Judge

Isanti County District Court

File Nos. K69668, K99668

Hubert H. Humphrey, III, Attorney General, Catherine M. Keane, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 and

Jeffrey R. Edblad, Isanti County Attorney, 555 - 18th Avenue S.W., Cambridge, MN 55008 (for respondent)

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Jonathan Edward Buhl, MCF-Stillwater, Box 55, Stillwater, MN 55082 (pro se appellant)

Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Short, Judge.


SHORT, Judge

A jury convicted Jonathan Edward Buhl of first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd.1 (1996), second-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 2 (1996), and three counts of second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (1996). We consolidated Buhl's appeal from the judgment of conviction with his appeal from denial of post-conviction relief. Buhl argues the trial court erred: (1) in finding probable cause to support the issuance of a search warrant; (2) in evidentiary rulings; and (3) in calculating his sentence. In addition, Buhl argues: (4) the evidence is insufficient to support conviction; and (5) he should be granted a new trial on the basis of newly discovered evidence. We affirm, but remand for resentencing.



On appeal from a pretrial suppression decision where the facts are not in dispute, we independently determine whether the evidence requires suppression as a matter of law. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). We will uphold a search warrant if the evidence viewed as a whole provided a substantial basis for the finding of probable cause. Massachusetts v. Upton, 466 U.S. 727, 732-33, 104 S. Ct. 2085, 2088 (1984).

Buhl argues the trial court erred in finding probable cause existed where the supporting affidavit omitted material facts and was based on stale information. See State v. DeWald, 463 N.W.2d 741, 746 (Minn. 1990) (enumerating factors considered by court in determining whether information forming basis of warrant is stale). However, the supporting affidavit shows: (1) an informant accused Buhl of the robbery 24 days after the robbery, and based that accusation on Buhl's admissions and the informant's personal observations of firearms, cash, and money bags in Buhl's apartment on the day following the robbery; (2) that information was corroborated by a surveillance tape and three eyewitnesses to the robbery; (3) the investigators believed the informant's statements had some degree of credibility; and (4) the items listed on the search warrant were otherwise innocuous and of enduring utility to Buhl. Under these circumstances, probable cause existed despite misrepresentations and the "age" of the informant's information. See Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983) (holding magistrate must make decision based on totality of circumstances and determine if fair probability contraband or evidence to be found at stated place); see also DeWald, 463 N.W.2d at 747 (holding information not too stale to support finding of probable cause where warrant issued within month of crime and number of items sought by police, although ultimately incriminating, may have appeared innocuous to defendant); State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989) (concluding search warrant void if it includes intentional or reckless misrepresentations of fact, and when that information is excluded probable cause no longer exists). The trial court correctly refused to suppress evidence seized during the search of Buhl's apartment.


Evidentiary rulings rest within the sound discretion of the trial court, and we will not reverse a trial court's decision to admit evidence absent a clear abuse of that discretion. State v. Olkon, 299 N.W.2d 89, 101-02 (Minn. 1980).

Buhl argues the admission of testimony from the state's primary witness, which was given at Buhl's first trial, violates his constitutional right to confront a witness. See U.S. Const. amend. VI (providing in all criminal prosecutions, accused shall enjoy the right to be confronted with witnesses against him). However, the record demonstrates the state's witness provided sworn testimony that was subject to cross-examination at the first trial and refused to testify at the second trial, despite a possible grant of immunity and a contempt order. Because the state's witness was unavailable and the testimony was reliable, the trial court did not abuse its discretion in permitting the prior testimony of a witness to be read to the jury. See Minn. R. Evid. 804(b)(1) (1996) (providing testimony of declarant at prior trial not excluded as hearsay in criminal proceeding involving a retrial of same defendant for same or an included offense if declarant unavailable); Minn. R. Evid. 804(a)(2) (1996) (providing witness considered unavailable if persists in refusing to testify concerning subject matter of statement despite court order to testify); see also State v. Byers, No. C4-96-212, 1997 WL 718829, at *6 (Minn. Nov. 20, 1997) (concluding refusal to testify can satisfy necessity prong and witness testimony sufficiently reliable where cross-examined, given under oath, and corroborated).

Buhl also argues the trial court denied his constitutional right to present a defense by excluding, as hearsay, the statement of a defense witness. However, the record demonstrates: (1) the witness provided an unsworn statement, to a police officer at the scene, about observing a vehicle leaving the parking lot at the approximate time of the robbery; (2) prior to trial, the same witness spoke about his observations over the phone to an investigator from the public defender's office; (3) the witness told the investigator that he did not want to return to Minnesota because of outstanding warrants and would try to avoid service of process; and (4) no attempt was made to serve process on the witness. Given these facts, the trial court did not abuse its discretion in finding Buhl failed to establish the witness was unavailable or in excluding the statements as unreliable. See Minn. R. Evid. 804(a)(5) (1996) (providing declarant considered unavailable for hearsay exception if absent from hearing and proponent of statement has been unable to procure declarant's attendance by process or other reasonable means); Minn. R. Evid. 804(b)(5) (1996) (providing statement, not falling within specific hearsay exception, may be admitted if court concludes the statement has "equivalent circumstantial guarantees of trustworthiness"); see also State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (concluding if reviewing court satisfied beyond reasonable doubt that if evidence had been admitted and its damaging potential fully realized, reasonable jury would have reached same verdict, then erroneous exclusion of evidence is harmless); State v. Richards, 495 N.W.2d 187, 193 (Minn. 1992) (concluding right to present witnesses is constitutionally protected, but accused must comply with established rules of procedure and evidence designed to assure fairness and reliability in ascertainment of guilt and innocence).


Although a trial court has great discretion in sentencing, both sides agree the trial court erred in its calculation of Buhl's sentence. After a careful review of the record, we conclude the trial court erred in including Buhl's attempted escape, while in custody for current offenses, as a predicate offense in its determination that Buhl was a "career offender." See Minn. Stat. § 609.152, subd. 3 (1996) (providing sentencing court may impose aggravated durational departure from presumptive sentence if court finds, and specifies on record, that offender has more than four prior felony convictions and present offense is felony committed as part of pattern of criminal conduct); Minn. Stat. § 609.152, subd. 1(c) (1996) (providing prior conviction is conviction that occurred before offender committed next felony resulting in conviction and before offense for which offender is being sentenced). Accordingly, we remand to the trial court for resentencing consistent with this opinion.


When evaluating the sufficiency of the evidence supporting a conviction, our review is limited to whether a jury could reasonably have found the defendant guilty of the charged offense. State v. Davidson, 481 N.W.2d 51, 58 (Minn. 1992). We view the evidence in the light most favorable to the verdict, and assume the jury believed the state's witnesses while disbelieving any contrary evidence. State v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994).

Buhl argues the evidence is insufficient to support his conviction. However, the record demonstrates: (1) a witness testified that on the day after the robbery, he observed $2,000 cash on the coffee table, a sawed-off shotgun, .22 caliber pistol, rolls of change, a green army fatigue jacket, and a blue duffel bag with white straps at Buhl's apartment; (2) that witness's testimony contained previously unreleased information and was corroborated by the three robbery victims; (3) the surveillance video showed that items seized from Buhl's apartment were identical to those used in the robbery; (4) a victim positively identified the duffel bag and jacket taken from Buhl's apartment as those used during the robbery; (5) two prisoners, who were being held in cells near Buhl's cell at the Isanti County Jail, testified that Buhl made incriminating comments about the robbery; and (6) a defense witness provided a statement that he and two other individuals, not the defendant, had been involved in the robbery, but admitted, upon cross-examination that he "made up" this information. Given these facts, the evidence and all reasonable inferences are consistent only with Buhl's guilt. See State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995) (holding even if conviction rests on circumstantial evidence, we must uphold verdict so long as reasonable inferences from evidence are consistent only with defendant's guilt); see also State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (recognizing weighing credibility of witnesses is exclusive function of jury, and holding inconsistencies in state's case do not require reversal of jury verdict).


In reviewing the order of a postconviction court, our function is to determine whether the record sustains the findings and whether the decision constitutes an abuse of discretion. Miller v. State, 531 N.W.2d 491, 492 (Minn. 1995). In postconviction proceedings, the defendant bears the burden of establishing the facts by a preponderance of the evidence. Minn. Stat. § 590.04, subd. 3 (1996).

Buhl argues the postconviction court erred in failing to grant him a new trial due to television reports about the robbery, including the release of surveillance video, which may have publicly released "undisclosed" information possibly affecting the police informant's credibility. However, the record demonstrates: (1) the "newly discovered" evidence consists of public press coverage where a police officer was interviewed by television reporters and the surveillance footage was copied by reporters; (2) the county attorney was not informed of the interviews nor did the county attorney have videotaped copies of the news stories in its possession; (3) although the surveillance tapes were widely disseminated, the actual amount of stolen money was never disclosed; (4) Buhl failed to request copies of the television reports; and (5) the trial court specifically addressed the possibility of pretrial publicity during voir dire. Under these circumstances, we conclude the postconviction court did not err in denying Buhl's request for a new trial. See State v. Bliss, 457 N.W.2d 385, 391 (Minn. 1990) (holding to obtain new trial on basis of newly discovered evidence, a defendant must establish: (a) evidence not known to him or his counsel at time of trial; (b) failure to learn of evidence before trial not due to lack of diligence; (c) evidence is material (not merely impeaching, cumulative, or doubtful); and (d) evidence will probably produce either acquittal at retrial or more favorable result).

Buhl raises additional arguments in his pro se brief. After reviewing those arguments and the record on appeal, we cannot say Buhl's constitutional rights were violated.

Affirmed; remanded for resentencing.