State of Minnesota, Respondent, vs. Kevin Paul Kurz, Appellant. A04-1255, Court of Appeals Unpublished, June 28, 2005.

This opinion will be unpublished and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

A04-1255

State of Minnesota,

Respondent,

vs.

Kevin Paul Kurz,

Appellant.

Filed June 28, 2005

Affirmed in part, reversed in part, and remanded

Lansing, Judge

Rice County District Court

File No. K0-03-1246

Mike Hatch, Attorney General, Kelly O’Neill Moller, Barry R. Greller, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

G. Paul Beaumaster, Rice County Attorney, Rice County Courthouse, 218 Northwest Third Street, Faribault, MN 55021 (for respondent)

John Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Minge, Judge.

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

LANSING, Judge

Kevin Kurz raises eight issues in this appeal from his conviction and sentence on four felonies arising out of a car theft from a residence. We conclude that the state did not deny Kurz a speedy trial or commit prosecutorial misconduct that requires a new trial, that the district court acted within its discretion in admitting other-crimes evidence and in imposing restitution, and we reject Kurz’s claims that his counsel was ineffective and that the evidence is insufficient to support his convictions. But we agree that the upward durational sentencing departure violated Kurz’s right to a jury trial and that the fixed copayment for public-defender services is unconstitutional. We, therefore, affirm in part and reverse in part and remand for resentencing and determination of whether Kurz is financially able to pay for public-defender services.

F A C T S

Faribault residents reported a burglary and theft of their white, 2000 Buick Regal from their home on July 8, 2003. Ten days later, on July 18, 2003, police recovered the car after a high-speed chase. The car’s driver fled, but passengers identified Kevin Kurz as the driver. Kurz was subsequently arrested and charged with fleeing a police officer, first-degree burglary, and two counts of theft of a motor vehicle.

In July 2003 the district court approved Kurz’s application for a public defender and imposed a $200 copayment under Minn. Stat. § 611.17, subd. 1(c) (Supp. 2003). On November 24, 2003, Kurz entered a plea of not guilty and demanded a speedy trial.

At the five-day trial that began on March 1, 2004, the homeowners testified that personal items, including a purse, keys, and a Buick Regal car were stolen from their residence on July 8, 2003. The homeowners testified that they found a footprint in an addition to their residence that did not belong to any resident of their household. An officer with the Faribault Police Department testified that he compared photographs of the footprint with Kurz’s shoes, taken from his jail locker, and found no difference between the tread patterns. A forensic scientist testified that the overall tread pattern was similar between the shoes and the photograph.

An acquaintance of Kurz’s testified that, on July 18, 2003, he and his cousin were passengers in Kurz’s car on their way to Northfield. While driving, they passed a sheriff’s automobile, and Kurz, to avoid being stopped, accelerated to ninety miles an hour, drove through one or two intersections, stopped the car, and took off running.

After the state’s case-in-chief, the prosecutor moved to admit evidence of Kurz’s convictions for burglary and related automobile thefts in 1997 and 2002. The district court granted the motion.

In his defense, Kurz presented testimony from a friend who testified that Kurz came to her home on July 18, 2003, and used the phone to arrange a ride back to Faribault. Another friend testified that he saw Kurz on July 7, but could not confirm seeing Kurz in the early morning of July 8.

The jury found Kurz guilty of all four charges. The district court sentenced Kurz under the career-offender statute to an upward durational departure of 120 months in prison on the first-degree-burglary count. The district court also ordered that Kurz pay $1,209.36 in restitution. Kurz appeals, challenging the (1) order for the public-defender copayment, (2) lack of a speedy trial, (3) admission of other-crimes evidence, (4) propriety of the prosecutor’s closing argument, (5) sufficiency of the evidence to support his conviction, (6) amount of restitution, (7) constitutionality of the durational sentencing departure, and (8) effectiveness of his trial counsel.

D E C I S I O N

The district court ordered Kurz to provide a $200 copayment for services of the public defender under Minn. Stat. § 611.17, subd. 1(c) (Supp. 2003). While Kurz was awaiting trial, the supreme court declared the copayment statute unconstitutional. See State v. Tennin, 674 N.W.2d 403, 410 (Minn. 2004) (concluding copayment statute for public-defender services violated both federal and state constitutions). The state concedes that the $200 fee should not have been assessed against Kurz under Minn. Stat. § 611.17, subd. 1(c), but contends that Kurz may still be required to make partial payment for public-defender services if he is financially able.

Contingent on financial ability, a criminal defendant may be required to make partial payment for public-defender services. See Minn. R. Crim. P. 5.02, subd. 5 (stating district court may require financially able defendant to compensate governmental unit charged with paying expense of appointed public defender); Minn. Stat. § 611.20 (Supp. 2003) (requiring district court to direct partial payments to state general fund if it determines criminal defendant is financially able). This court has previously concluded that a criminal defendant’s constitutional rights are not violated by this repayment structure. State v. Cunningham, 663 N.W.2d 7, 12-13 (Minn. App. 2003). Because the statute under which the district court imposed the $200 copayment is unconstitutional under Tennin, we reverse the district court’s imposition of the $200 copayment. We remand to the district court for determination of whether Kurz is required to make partial payments under rule 5.02 or Minn. Stat. § 611.20.

Kurz contends that his right to a speedy trial was denied. The right to a speedy trial is guaranteed by the Sixth Amendment of the United States Constitution and by article I, section 6 of the Minnesota Constitution. Whether an appellant’s constitutional right to a speedy trial was violated is a question of law, which we review de novo. State v. Wiegand, 645 N.W.2d 125, 129 (Minn. 2002).

In Minnesota, a defendant must be tried within sixty days after demanding a speedy trial unless good cause is shown for the delay. Minn. R. Crim. P. 11.10. The time period shall not begin to run earlier than the date of a plea other than guilty. Id. To determine whether a delay constitutes a deprivation of the right to a speedy trial, we apply a test that balances (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether the delay prejudiced defendant. State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972)).

The first factor, length of delay, is a triggering mechanism that determines whether consideration of the other factors is necessary. Windish, 590 N.W.2d at 315. Delays beyond sixty days from the date of demand raise a presumption that the right has been violated. State v. Friberg, 435 N.W.2d 509, 513 (Minn. 1989). Kurz entered his plea of not guilty and demanded a speedy trial on November 24, 2003. His trial began ninety-eight days after the speedy-trial demand, on March 1, 2004. This delay raises the presumption that a violation has occurred, and we therefore consider the remaining three factors.

The second factor requires inquiry into the reasons for delay. Windish, 590 N.W.2d at 315. Trial was originally set for January 20, 2004. At two appearances following his speedy-trial demand, Kurz agreed to continue trial to January 27 due to the unavailability of his defense counsel and then to February 24 to allow testimony of alibi witnesses. But Kurz did not agree to these continuances without objection—he repeatedly stated that he wanted a speedy trial and explained that the unavailability of his public defender and that the late submission of his alibi witnesses were caused by the overburdened public-defender office. The district court noted Kurz’s objection and clearly stated on the record its understanding that, although Kurz agreed to the continuance, he was not waiving his speedy-trial demand. Trial was subsequently continued to February 26, again due to the unavailability of defense counsel, and then to March 1 due to district court scheduling conflicts.

Although unavailability of a public defender does not weigh in a defendant’s favor, Windish, 590 N.W.2d at 316 (concluding public defender’s unavailability weighs against appellant), “[t]he responsibility for an overburdened judicial system cannot . . . rest with the defendant.” State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986). A combination of public-defender staffing issues and court scheduling congestion was the primary reason for delay of Kurz’s trial. But even if we weighed this factor in favor of Kurz, the weight would be diminished by the absence of any evidence of a deliberate attempt on the part of the state to delay trial. See id. (weighing delay caused by court congestion less heavily against state than any deliberate attempt by prosecutor to delay trial).

The third factor is the “frequency and force” of Kurz’s assertion of his right to a speedy trial. See Friberg, 435 N.W.2d at 515 (stating that court must consider “frequency and force” of demand). This factor weighs in Kurz’s favor. Kurz formally demanded a speedy trial on November 24, after entering a plea of not guilty, and Kurz asserted his right to a speedy trial at all subsequent appearances when trial was delayed.

The fourth factor, whether Kurz has been prejudiced by the delay, encompasses three considerations: (1) preventing oppressive pretrial incarceration, (2) minimizing the anxiety of the accused, and (3) limiting impairment of the defense. Windish, 590 N.W.2d at 318. Kurz asserts that he was prejudiced because he suffered anxiety by being incarcerated and having to appear for a trial that was repeatedly continued. But Kurz does not demonstrate that he experienced anxiety in excess of that suffered by any defendant awaiting disposition of a criminal case. He also fails to demonstrate that the delay impaired his defense or affected the strength of his case. See Friberg, 435 N.W.2d at 515 (stating that appellant must demonstrate that delay affected strength of appellant’s case and that demonstration of stress, anxiety, and inconvenience experienced generally when involved in criminal trial is insufficient).

Because no evidence suggests a deliberate attempt on the part of the state to delay trial and because Kurz failed to demonstrate that the delay in trial was prejudicial, we cannot conclude that Kurz was denied a speedy trial.

III

Kurz contends that the district court erred in admitting evidence of two previous burglary convictions. This court will not reverse a district court’s admission of other-crime or Spreigl evidence absent an abuse of discretion. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). On appeal, the defendant bears the burden of demonstrating prejudicial error. Id.

A district court may not admit evidence of other crimes to prove the character of the defendant in order to show the defendant acted in conformity with the proven character. Minn. R. Evid. 404(b). But evidence of other crimes is admissible to show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.; State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000). To admit the evidence, the district court must find by clear and convincing evidence that the defendant participated in the crime, the evidence is relevant and material, and the probative value of the evidence outweighs the potential for unfair prejudice. State v. Lynch, 590 N.W.2d 75, 80 (Minn. 1999).

Kurz contends that the evidence of his prior convictions was not relevant or material and was prejudicial. In determining the relevance and materiality of Spreigl evidence, the district court considers the issues in the case, the reasons and need for the evidence, and whether a sufficiently close relationship exists between the charged offense and the Spreigl offense in time, place, or modus operandi. Pierson v. State, 637 N.W.2d 571, 580 (Minn. 2002). In weighing the probative value against the prejudicial effect, the district court must consider the extent to which the Spreigl evidence is crucial to the state’s case. State v. DeWald, 464 N.W.2d 500, 504 (Minn. 1991).

The district court made the necessary findings on each of the factors related to relevancy, materiality, and prejudice. The court concluded that the evidence of Kurz’s past criminal convictions was admissible for the purpose of proving identity because the convictions showed a pattern of entering a residence, taking keys and other personal items, and taking an automobile from the residence using the keys. In one instance residents were home during the burglary, and, in the other instance, Kurz was found driving the stolen automobile days later. This evidence is sufficiently close in relationship to the charged offense, particularly in modus operandi.

Additionally, the state’s case on identity was weak because the partial footprint showed at most that Kurz could not be excluded as the crime’s perpetrator and, even though the state presented direct evidence of Kurz’s possession of the car, the evidence of his participation in the burglary was circumstantial. Evidence of a prior crime is not admissible to show conforming conduct, but the similarity of a prior conviction may make its admission more appropriate, rather than less, because it reduces the likelihood that the evidence will be used for an improper purpose. Lynch, 590 N.W.2d at 80; State v. Frisinger, 484 N.W.2d 27, 31 (Minn. 1992).

Because the record supports the district court’s determination that the other-crimes evidence is relevant and material, and that the probative value is greater than the prejudicial effect, it was not an abuse of discretion to admit evidence of Kurz’s two prior burglary convictions.

Kurz contends that the prosecutor’s closing argument improperly suggested that the defense had an obligation to produce witnesses or proof when the prosecutor said:

You may recall hearing something about a gentleman named [T.A.] in the opening statement, and you may recall something about an alibi for July 8th that [he] was going to supply. There was no evidence of that. There was no person named [T.A.] who testified. I would urge you to disregard anything you might have heard the defense attorney say in his opening statement with respect to an alibi for July 8th.

Before making this statement the prosecutor told the jury that “statements by counsel are not evidence.” The district court also instructed that counsel’s statements were not evidence and instructed on the state’s burden of proof. Kurz did not object to the prosecutor’s statement or request a curative instruction.

Although a prosecutor may “point out that the record did not support defense counsel’s representations in opening statement,” State v. Coley, 468 N.W.2d 552, 555 (Minn. App. 1991), it is error for a prosecutor to comment on the defendant’s failure to call a witness. State v. Fields, 306 Minn. 521, 522, 237 N.W.2d 634, 634 (1976). A comment on a failure to call a witness might suggest to the jury that the defendant has a duty to produce witnesses or bears a burden of proof. State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). Because the prosecution did more than simply point out that the record did not support defense counsel’s representations in opening statement and, instead, commented specifically on the failure to call a particular witness, the comment qualifies as misconduct.

We will require a new trial because of prosecutorial misconduct “only when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.” State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000). We will generally not grant a new trial if the prosecutorial misconduct is harmless beyond a reasonable doubt. State v. Bradford, 618 N.W.2d 782, 798 (Minn. 2000). Misconduct is harmless beyond a reasonable doubt if the jury’s verdict is “surely unattributable to the error.” State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).

The improper statement was brief and was preceded by a correct explanation of the law that statements by counsel are not evidence. See State v. Bell, 294 Minn. 189, 192, 199 N.W.2d 769, 771 (Minn. 1972) (determining that mention of defendant’s failure to call witnesses was not prejudicial when district court properly instructed jury). Additionally, a “defendant’s failure to object or to request curative instructions weighs heavily” in determining whether the misconduct was prejudicial. Caron, 300 Minn. at 127, 218 N.W.2d at 200. Kurz did not object. The district court, nevertheless, properly instructed the jury on the burden of proof and that counsel’s statements did not constitute evidence. Because the statement was harmless beyond a reasonable doubt, it does not constitute reversible error.

Kurz challenges the sufficiency of the evidence supporting his convictions. Although Kurz does not challenge the conclusion that a burglary, theft of a motor vehicle, and fleeing a police officer occurred, he contends that the evidence identifying him as the perpetrator of these acts is insufficient.

Evidence is sufficient to support a conviction if, given the facts in the record and the legitimate inferences drawn from those facts, a jury could reasonably conclude the defendant committed the crimes charged. State v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995). Circumstantial evidence is “entitled to as much weight as other kinds of evidence.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). Recognizing that the jury is in the best position to evaluate the credibility of witnesses, we assume that the jury believed the witnesses’ testimony that supports the verdict and disbelieved any contradicting evidence. State v. Henderson, 620 N.W.2d 688, 705 (Minn. 2001).

The Faribault homeowners testified that the Buick Regal was stolen from their residence on July 8, 2003. An acquaintance testified that he saw Kurz with the stolen automobile “days before” July 18. The acquaintance also testified that Kurz was driving the vehicle while fleeing police on July 18. See State v. Jatal, 152 Minn. 262, 264, 188 N.W. 284, 284-85 (stating that it is settled law that unexplained possession and control of recently stolen personal property is prima facie evidence of guilt). Considering this testimony along with testimony that Kurz was in Northfield without transportation on July 18, the shoeprint testimony, the testimony of the alibi witness that could not rule Kurz out as the perpetrator, the convictions of similar crimes in 1997 and 2002, and the legitimate inferences drawn from this evidence, a jury could reasonably conclude beyond a reasonable doubt that Kurz committed the crimes charged.

Kurz disputes that part of the restitution order that requires him to reimburse the homeowner $500 for the home-insurance-policy deductible. District courts have broad discretion in imposing restitution. State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999). In determining the amount of restitution, the district court “shall consider . . . the amount of economic loss sustained by the victim as a result of the offense.” Minn. Stat. § 611A.045, subd. 1 (2002). In cases involving property crimes, this court generally allows restitution for items that are supported by affidavits, claim forms, or testimony. See State v. Medibus-Helpmobile, Inc., 481 N.W.2d 86, 93 (Minn. App. 1992) (affirming restitution when claim form provided factual basis, as did testimony), review denied (Minn. Mar. 19, 1992); State v. O’Brien, 459 N.W.2d 131, 134-35 (Minn. App. 1990) (affirming restitution when affidavit provided sufficient basis for determining economic loss).

The homeowners testified that, as a result of the crime, they were missing personal property including sunglasses, house keys, golf clubs, golf shoes, compact discs, automobile keys, a purse and its contents, and an automobile registration book and manual. The homeowners further testified that it was necessary to replace the locks on their home. The affidavit for restitution shows losses amounting to $1,209.36, including $500 for a deductible on their homeowner’s policy. At the sentencing hearing, one of the homeowners told the court that the total claim under that policy covered a number of items amounting to approximately $2,500 in total losses. Because the testimony at trial and the affidavit for restitution provided a sufficient basis for determining economic loss, the district court did not abuse its discretion in ordering restitution that included $500 for the deductible on the homeowner’s policy.

VII

Citing Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004), Kurz contends that the district court erred in sentencing him to a double upward durational departure under Minnesota’s career-offender statute, Minn. Stat. § 609.1095, subd. 4 (2002). Because a challenge to a sentence under Blakely presents a constitutional issue, we review the challenge de novo. State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).

A sentence violates a defendant’s Sixth Amendment right to a jury trial when it exceeds the statutory maximum and is based on judicially determined aggravating facts, other than the fact of a prior conviction, that were neither admitted by the defendant nor found by a jury. Blakely, 124 S. Ct. at 2536-37. For Blakely purposes, the statutory maximum sentence is the greatest sentence a judge may impose solely on the basis of the facts reflected in the jury’s verdict or admitted by the defendant, not the maximum sentence a judge may impose after finding additional facts. Id. at 2537. The Minnesota Supreme Court has issued a per curiam order, pending release of a full opinion, holding that Blakely applies to upward durational departures under the Minnesota Sentencing Guidelines. State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004).

The career-offender statute permits an upward durational departure from the presumptive sentence upon two findings: (1) that the defendant has five or more prior felony convictions and (2) that the present offense was committed as part of a pattern of criminal conduct. Minn. Stat. § 609.1095, subd. 4. Because sentencing under the career-offender statute requires a factual finding other than the fact of a prior conviction, this court has held that the pattern-of-criminal-conduct finding must be made by a jury or stipulated to by the defendant. State v. Mitchell, 687 N.W.2d 393, 398-400 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004). Because the pattern-of-criminal-conduct finding was based on a judicially found facts and not on Kurz’s stipulation or a jury determination, the departure violated Kurz’s rights under the Sixth Amendment. We therefore reverse Kurz’s sentence for first-degree burglary and remand for sentencing consistent with Blakely.

VIII

In his pro se brief, Kurz argues that his defense counsel was ineffective by failing to prepare adequately for trial. A defendant claiming ineffective assistance of counsel must show by a preponderance of the evidence that his counsel’s representation “‘fell below an objective standard of reasonableness’” and that counsel’s error so prejudiced defendant's trial that, but for the error, there would have been a different outcome. State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984)). In general, this court does not pass judgment on defense counsel’s trial tactics. State v. Ronquist, 578 N.W.2d 4, 7 (Minn. App. 1998), aff'd, 600 N.W.2d 244 (Minn. 1999). Insufficient preparation for trial, however, may be grounds for finding ineffective assistance of counsel. In Re Welfare of T.D.F., 258 N.W.2d 774, 775 (Minn. 1977).

To support his argument of ineffective assistance of counsel, Kurz contends that counsel did not view all of the evidence before trial, communicate adequately with Kurz during trial preparation, investigate thoroughly, and interview the prosecution’s witnesses. Although we agree that Kurz’s attorney sought continuances for these reasons, the record demonstrates that the district court granted the continuances. In any event, Kurz’s allegations fail to demonstrate prejudice. Kurz asserts only that the result of trial “might have been different.” This general assertion is not sufficiently specific to show prejudice. See id. (stating appellant must demonstrate prejudice from alleged insufficient preparation). Because the district court granted Kurz’s counsel the requested continuances to prepare for trial and because Kurz failed to demonstrate prejudice, Kurz’s ineffective-assistance-of-counsel claim does not provide a basis for relief.

Affirmed in part, reversed in part, and remanded.