This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-493

 

State of Minnesota,

Respondent,

 

vs.

 

Juwad Kadhim Shadhan,

Appellant.

 

Filed May 10, 2005

Affirmed in part, reversed in part, and remanded

Willis, Judge

 

Hennepin County District Court

File No. 03036895

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Sean Michael McGuire, Assistant Public Defender, 2221 University Avenue SE, Suite 425, MN  55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            In this appeal from a third-degree criminal-sexual-conduct conviction, appellant argues that the district court erroneously admitted Spreigl and hearsay testimony, that the prosecutor committed several acts of prosecutorial misconduct, and that his sentence violates his Sixth Amendment rights, as described in Blakely v. Washington, 124 S. Ct. 2531 (2004).  We affirm in part, reverse in part, and remand.

FACTS

            In early 2003, appellant Juwad Shadhan was hired to manage the Robbinsdale Food Mart, a convenience store and local hangout for teenagers.  Shadhan gave discounts and free items to many of the store’s regular customers, including E.F. and her friends, teenagers who frequented the store.  In April 2003, Shadhan hired E.F. to stock shelves once a week.  E.F. testified that a few weeks after Shadhan hired her, he told her that he needed to talk to her.  They went to the back room, and after Shadhan closed the door, he hugged E.F. and told her that if she told anyone about what he was going to do, he would kill her.  E.F. testified that Shadhan then raped her.  Afterwards, he repeated his threat, told her to get a soda, and instructed her to come to the store every day or he would “find [her] and it would happen again.” 

E.F. did not tell anyone about what happened, and she continued to meet her friends at the store daily and to work there on Tuesday.  In early May 2003, police officers interviewed E.F. at her school while investigating another case, and she told the officers that Shadhan had touched her over her clothing.  She did not mention her claim of rape.  Later that month, E.F. told a friend about the rape, and at her friend’s insistence, E.F. gave a statement to the police describing the entire incident.    

In connection with the incident involving E.F., Shadhan was charged with third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344, subd. 1(c) (2002).  During his trial, the state called three Spreigl witnesses who testified that Shadhan had lured them into the back room at the store and made unwanted sexual advances.  The state also called Eileen Cain, a former friend of Shadhan, who testified that he told her that “[E.F.] doesn’t know what rape is.”  Cain also testified that she ended her friendship with Shadhan in part because of E.F.’s allegations and Shadhan’s nervous behavior.  Shadhan testified that he “didn’t touch anybody inside the store.”  He denied E.F.’s allegations and the events described by the Spreigl witnesses.  During cross-examination, the prosecutor asked Shadhan if “what [the state’s witnesses] said happened in the back room [was] not true.”  The prosecutor argued in his closing argument that Shadhan’s testimony was not credible by pointing out that it contradicted the testimony of several of the state’s witnesses.      

A jury found Shadhan guilty of third-degree criminal sexual conduct, and the district court imposed a sentence of 72 months, an upward durational departure from the presumptive guidelines sentence of 48 months.  The district court based the departure on its findings that E.F. was a particularly vulnerable victim and that Shadhan had abused his position of authority.  Shadhan challenges on appeal his conviction and sentence.

D E C I S I O N

I.

            Shadhan first argues that the district court erred by admitting the testimony of the state’s Spreigl witnesses.  The admission of Spreigl evidence lies within the sound discretion of the district court, and we will not reverse absent a clear abuse of that discretion.  State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996).

            Evidence of other crimes or misconduct is not admissible to show bad character.  State v. Spreigl, 272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965).  But it may be allowed if offered for the limited purpose of showing “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  Minn. R. Evid. 404(b); State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998) (noting that evidence of other crimes or bad acts is characterized as “Spreigl evidence”).  Spreigl evidence is admissible if the evidence of the defendant’s participation in the offense is clear and convincing, the evidence is relevant and material to the state’s case, and the probative value of the evidence outweighs its potential for unfair prejudice.  State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000).

            The state offered the testimony of three Spreigl witnesses, L.W., B.R., and K.L., for the limited purpose of proving a common scheme or plan.  L.W. testified that she was a regular customer of the Food Mart and that Shadhan frequently gave her discounts and free items from the store.  She testified that Shadhan flirted with her, asked her out, and gave her “a lot of bear hugs.”  L.W. also testified that Shadhan told her that he had something for her in the back room.  When she followed him to the back room, he exposed himself and tried to make her touch him. 

            K.L. and B.R. both testified that Shadhan gave them free candy and cigarettes.  They both described an incident when Shadhan invited them to the back room to smoke cigarettes.  While there, he asked K.L., B.R., and another friend to hug, and at some point he “joined in on the hugging.”  K.L. testified that during this incident, Shadhan put his arm around her and moved his hand down her back and into her pants, touching her buttocks.  B.R. testified that Shadhan had his hand in her pants and was “pulling [her] thong[] up.”

            Shadhan concedes that the testimony clearly and convincingly describes his participation in the events described by the Spreigl witnesses, but he argues that the testimony is irrelevant because those events are unrelated to the offense with which he was charged.  When determining the relevance of Spreigl evidence, the district court “should consider the issues in the case, the reasons and need for the evidence, and whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place or modus operandi.” Kennedy, 585 N.W.2d at 390 (quotation omitted).  Spreigl-evidence events “need not be identical in every way to the charged crime, but must instead be sufficiently or substantially similar to the charged offense.”  Id. at 391.

            The Spreigl evidence here was relevant to the jury’s resolution of a key issue: whether Shadhan sexually assaulted E.F., as she alleges, or whether her testimony is a fabrication, as he claims.  All three Spreigl witnesses testified that Shadhan established a relationship with them by giving them discounts and free items from the store and that he asked them to accompany him to the back room where he made unwanted sexual advances.  The Spreigl-evidence events happened within a few months of the charged offense and in exactly the same place and manner.  We find that district court did not err by determining that the Spreigl evidence was relevant to proving a common scheme or plan. 

   Shadhan also argues that the Spreigl evidence was overwhelmingly prejudicial.  When balancing the probative value and the prejudicial effect of Spreigl testimony, the district court “must consider how necessary the Spreigl evidence is to the state’s case.  Only if the other evidence is weak or inadequate, and the Spreigl evidence is needed as support for the state’s burden of proof, should the trial court admit the Spreigl evidence.”  State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992) (citations omitted).  The district court should weigh these considerations and decide whether to admit Spreigl testimony after the state has offered all of its non-Spreigl evidence.  Kennedy, 585 N.W.2d at 392. 

Here, the district court considered the state’s Spreigl evidence after the state presented its other witnesses.  The district court also assessed the strength of the state’s case, noting that the state relied primarily on the testimony of E.F., a juvenile witness “whose statements have many inconsistencies, including outright denial that anything occurred.”  The district court also instructed the jury on the limited purpose of the Spreigl evidence, both before the Spreigl witnesses testified and again at the close of trial, further reducing any potential for undue prejudice. 

The events described by the Spreigl witnesses are substantially similar to the charged offense and are relevant to show Shadhan’s common scheme or plan.  We conclude that the district court did not abuse its discretion by admitting the state’s Spreigl evidence.

II.

            Shadhan next argues that the district court erred by admitting the testimony of Eileen Cain.  Evidentiary rulings rest within the sound discretion of the district court, and we will not reverse absent a clear abuse of that discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  “On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.”  Id.

The district court admitted Cain’s testimony regarding Shadhan’s comment that “[E.F.] doesn’t know what rape is” under the statement-against-interest exception to the hearsay prohibition.  But Shadhan’s out-of-court statement does not fit within this hearsay exception because the statement does not tend to subject him to criminal liability such that “a reasonable person . . . would not have made the statement unless believing it to be true.”   See Minn. R. Evid. 804(b)(3). 

The state argues that Cain’s testimony was admissible because Shadhan’s out-of-court statement is not hearsay.  The Minnesota Rules of Evidence exclude admissions by a party opponent from the definition of hearsay.   Minn. R. Evid. 801(d)(2).  A statement is an admission by a party opponent if it is “offered against a party and is . . . the party’s own statement.”  Minn. R. Evid. 801(d)(2)(A); see State v. Taylor, 650 N.W.2d 190, 205 (Minn. 2002).  Here, the state offered Shadhan’s own statement against him.  Cain’s testimony regarding Shadhan’s comment is therefore not hearsay, and the district court did not err by admitting the statement.     

Shadhan also argues that the district court should have excluded Cain’s testimony regarding his statement because its highly prejudicial effect outweighs its probative value.  Otherwise admissible “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”  Minn. R. Evid. 403.  Shadhan contends that the only probative value the statement has is “[t]he highly prejudicial inference [that he] knows what rape is—presumably due to some prior experience with rape.”  But the more likely inference is that Shadhan’s statement to Cain implies that something happened to E.F. but that it was not rape.  In light of Shadhan’s primary defense that nothing happened and that E.F. had fabricated her accusations, the probative value of Cain’s statement is not substantially outweighed by the danger of unfair prejudice. 

Shadhan also argues that Cain’s testimony that her friendship with Shadhan ended is highly prejudicial because it implies that even Shadhan’s friends thought that he was guilty.  But Shadhan elicited most of that testimony, and he did not object at trial.  When there has been no objection to the admission of evidence at trial, an appellant waives the right to appeal unless the admission is plain error that affected the appellant’s substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  We will only review if the error is “so clear under applicable law at the time of conviction, and so prejudicial to the defendant’s right to a fair trial, that the defendant’s failure to object—and thereby present the trial court with an opportunity to avoid prejudice—should not forfeit his right to a remedy.”  State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999) (quotation omitted).  Although Cain’s testimony that her friendship with Shadhan ended may have had little relevance, Shadhan has made no showing of resulting prejudice, and we conclude that, in any event, Shadhan waived his right to raise this issue on appeal.

III.

Shadhan argues next that the prosecutor committed several instances of prosecutorial misconduct.  When reviewing claims of prosecutorial misconduct, we “will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.”  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). 

Shadhan alleges that it was misconduct for the prosecutor to question Shadhan regarding the truth of the state’s witnesses’ testimony.  Generally, “were they lying” questions are improper because they have no probative value and do not assist the jury in assessing witness credibility.  Pilot, 595 N.W.2d at 518.  But there is no bright-line rule prohibiting such questions, and when the defendant “flatly denies the occurrence of events” testified to by other witness, “were they lying” questions have probative value.  Id.  

Here, the prosecutor asked Shadhan several times whether it was his belief that the testimony of the state’s witnesses was not true.  Shadhan denied E.F.’s allegations, and he characterized the charges as lies.  He also denied the occurrence of the events testified to by the Spreigl witnesses.  Because Shadhan denied the occurrence of the assault on E.F. and the Spreigl­-evidence events, we conclude that the prosecutor’s “were they lying” questions were not misconduct.

Shadhan also challenges several of the prosecutor’s comments during his closing argument.  Shadhan argues that the prosecutor committed misconduct when, in his closing argument, he (1) inferred that Shadhan’s testimony was not credible because it was inconsistent with the testimony of the state’s witnesses, (2) bolstered Cain’s credibility by emphasizing that she used to be Shadhan’s friend, and (3) mentioned that it was not uncommon for abuse victims to delay reporting abuse to the police.  But Shadhan did not object to the comments at trial, nor did he seek a cautionary instruction.  A defendant who fails to object to the prosecutor’s closing argument or to seek a cautionary instruction ordinarily waives the right to have the issue considered on appeal.  State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984).  Only when the misconduct is unduly prejudicial will we grant relief where there is no trial objection or request for instruction.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).   We do not find the prosecutor’s comments in his closing argument unduly prejudicial, and we conclude that there was no prosecutorial misconduct.

IV.

Shadhan also argues that the district court violated his Sixth Amendment rights by imposing a sentence that is an upward durational departure from the guidelines sentence, based on judicially determined aggravating factors.  See Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004).  Shadhan raises a constitutional challenge, which we review de novo.  See State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995), review denied (Minn. July 20, 1995).

This court applied Blakely to the Minnesota Sentencing Guidelines in State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004) (appeal stayed pending decision in State v. Shattuck, C6-03-362).[1]  Although Shadhan was found guilty before Blakely was decided, he is entitled to a review of his sentence in light of Blakely because it is a new rule of constitutional criminal procedure that was announced while his direct appeal was pending.  See O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).

Blakely requires that factual findings supporting an upward durational departure from the presumptive guidelines sentence must be found by a jury.  Conger, 687 N.W.2d at 644; see also Blakely, 124 S. Ct. at 2537.  The district court may impose an upward durational departure if the defendant admits facts supporting the departure but only if the defendant also waives his right to a jury determination of those facts.  State v. Hagen, 690 N.W.2d 155, 158–59 (Minn. App. 2004).  Here, the district court based the upward durational departure on its findings that E.F. was a particularly vulnerable victim and that Shadhan abused his position of authority.   Although Shadhan admitted that he hired E.F. to stock shelves, he did not waive his right to a jury determination that he was in a position of authority.  He also did not admit that E.F. was a particularly vulnerable victim or waive his right to a jury determination of that aggravating factor. 

Because the upward durational departure was based on judicially found aggravating factors and Shadhan did not waive his right to a jury determination of those factors, we conclude that Shadhan’s sentence violated his Sixth Amendment rights as described in Blakely.  We reverse Shadhan’s sentence and remand for sentencing in accordance with Blakely.

Affirmed in part, reversed in part, and remanded.