STATE OF MINNESOTA

IN COURT OF APPEALS

A05-726

State of Minnesota,
Respondent,

vs.

Richard Raymond Chauvin,
Appellant.

Filed November 8, 2005

Affirmed; motion denied.

Toussaint, Chief Judge

Mille Lacs County District Court

File No. K3-04-488

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Jan Kolb, Mille Lacs County Attorney, Courthouse Square, 635 Second St. S.E., Milaca, MN 56353 (for respondent)

John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Willis, Judge.

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

TOUSSAINT, Chief Judge

This expedited appeal is from a sentence imposed for theft by swindle, committed in violation of Minn. Stat. § 609.52, subd. 2(4) (2002). Appellant Richard Chauvin challenges a sentence departure imposed based on a finding by the jury. Chauvin has also filed a motion to strike portions of the state’s brief, and the state has filed a response. Because we conclude there was no error in submitting the sentencing issue to the jury, we affirm. The motion to strike is denied.

FACTS

Appellant Richard Chauvin was charged with theft by swindle and driving after revocation. The complaint alleged that Chauvin flagged down Donald Erlandson, an 80-year-old resident of the town of Isle, Minnesota, and told him that he needed to borrow $200 to fix his truck. Erlandson was reluctant, but agreed to drive Chauvin back to the victim’s house, where he could discuss it with his wife. Carol Erlandson was suspicious but wrote Chauvin a check after Chauvin wrote an IOU. Chauvin cashed the $200 check at a local gas station, then returned later to the victims’ house with another story, this time claiming that he needed another $450 to fix the truck. The wife wrote Chauvin a check for $450, and Chauvin later enlisted the husband to help him when he had trouble cashing the check at the bank.

The following day, the Erlandsons received another call from a man claiming to be a state trooper and stating he was bringing Chauvin’s wife to Isle with money but that another $600 was needed. This request was refused, and the Erlandsons’ daughter called the police.

Before trial, the prosecutor filed a notice that the state would seek an enhanced sentence under the career-offender statute and under the sentencing guidelines based on the aggravating factor for crimes committed against victims who are particularly vulnerable due to age. See Minn. Sent. Guidelines II.D.2.b.(1).

On the first day of trial, the prosecutor notified the court that it was seeking an upward departure that, under Blakely, might require a jury determination. The court decided to bifurcate the trial, with the jury being recalled to address the sentencing issue(s) if it found Chauvin guilty. After the jury was selected, the trial court questioned Chauvin about his understanding of his right to a jury determination on the sentencing issues, and Chauvin’s attorney put on the record his client’s decision not to waive a jury determination, and the defense position that “a sentencing jury is [not] authorized under Minnesota law.” After hearing argument on the legality of a sentencing-jury procedure, the court denied Chauvin’s challenge

Don Erlandson was 80 years old at the time of the offense. Carol Erlandson was 75 years old. As the prosecutor pointed out in closing argument in the first phase of the trial, the Erlandsons were trusting people who had lived their entire lives in the small town of Isle and wanted to help other people.

After the jury found Chauvin guilty of theft by swindle, the trial court informed the jury that there would be a “second stage” of the trial, which it did not explain in detail, leaving the details until after the jury would be called back into session. The attorneys and the court then discussed possible jury instructions on the aggravating factors, as well as the “special interrogatories” to submit to the jury. The career-offender statute posed a number of problems, however, and ultimately, after a weekend adjournment, the state withdrew the career-offender statute as a departure factor.

The trial court instructed the jury on what they had to decide under the particular-vulnerability aggravating factor. No new evidence was presented, either by the state or by the defense, and in her argument to the jury the prosecutor used a predator-prey analogy to argue that Chauvin took advantage of the Erlandsons’ vulnerability to the swindle. The prosecutor told the jury they would have to decide whether the Erlandsons were “like those gazelles or those antelopes out in the wild” who were vulnerable to the attacks of the lion. She argued that Chauvin picked the Erlandsons out because of the weakness he saw in them, and pointed out that Chauvin addressed Don Erlandson by his name when he approached him. The defense objected to the predator-prey argument.

After a defense closing argument and a prosecution rebuttal, the jury returned its decision, finding the Erlandsons were vulnerable adults. The trial court sentenced Chauvin to an upward durational departure of 48 months, or double the presumptive sentence, based on the jury finding.

D E C I S I O N

Chauvin argues that the trial court’s sentencing-jury proceeding was unauthorized by any rule or statute and was therefore extra-legal. He also argues that he was denied due process because the offense for which he was sentenced, which included the victim-vulnerability aggravating factor, was not charged in the complaint. He also argues that the prosecutor committed prejudicial misconduct in her closing “sentencing” argument, and that the state did not prove beyond a reasonable doubt that the Erlandsons were particularly vulnerable.

Chauvin argues that the sentencing-jury proceeding initiated by the trial court was extra-legal, in that, although a jury sentencing determination may have been mandated as a matter of constitutional principle by Blakely, it was not authorized in practice by any rule or statute. Chauvin’s argument relies to a large degree on the supreme court’s decision in State v. Shattuck, ___ N.W.2d ___, 2005 WL 1981659 (Minn. Aug. 18, 2005) (Shattuck II), rehearing granted (Minn. Oct. 6, 2005) (amending opinion), and on decisions from other states.

The supreme court held in Shattuck I that, under Blakely, the Minnesota Sentencing Guidelines provision for upward durational departures based on judicial findings “unconstitutionally usurps the role and undermines the function of the jury.” State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004). As the United States Supreme Court expressed the rule in Blakely, “When a judge inflicts punishment that the jury’s verdict alone does not allow . . . , the judge exceeds his proper authority.” Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 2537 (2004). In this case, we are asked to decide whether a court also exceeds its authority by declining to making judicial findings and submitting “sentencing factors” to a jury instead if that procedure is not specifically authorized by rule or statute.

Courts in several states have rejected attempts to respond to Blakely by impaneling sentencing juries in the absence of rules or statutes authorizing that procedure. See State v. Hughes, 110 P.3d 192 (Wash. 2005); State ex rel. Mason v. Griffin, 819 N.E.2d 644 (Ohio 2004); State v. Kessler, 73 P.3d 761 (Kan. 2003) (holding court could not improvise sentencing jury proceeding to respond to Apprendi). As the state points out, courts in some jurisdictions have held otherwise. See State v. Schofield, 876 A.2d 43 (Me. 2005) (holding court had “inherent judicial power” to impanel sentencing jury in response to Blakely). The state argues that the court has inherent judicial authority to submit a sentencing issue to a jury, as the district court did in this case.

Our supreme court in Shattuck II stated:

While this court has the authority to establish procedures to apply the requirements of Apprendi and Blakely to sentences in Minnesota, we leave to the legislature the task of deciding how the Sentencing Guidelines system should be altered to comport with those cases.

State v. Shattuck, ___ N.W.2d ___, 2005 WL 1981659, at *14. The court acknowledged that the 2005 legislature had responded to Blakely, enacting prospective provisions for sentencing juries and bifurcated trials, and for jury resentencing hearings. Id., at *14 n. 17. But the court declined to express any opinion about the 2005 amendments, while specifying that it did not “foreclose the district court from considering any constitutionally applicable and/or available laws on remand.” Id.

The trial court here did not impanel a separate “sentencing” jury, but merely submitted an additional question to the jury already selected to determine Chauvin’s guilt or innocence. That question, whether the Erlandsons were “particularly vulnerable” due to age and other conditions, was submitted after the jury had found Chauvin guilty and had adjourned. It was submitted without additional evidence, based on jury instructions extensively debated by the prosecutor and defense counsel.

Special interrogatories on issues relevant to the proper sentence to be imposed have been approved as long as the jury is instructed that it must apply the beyond-a-reasonable-doubt standard. State v. Robinson, 480 N.W.2d 644, 646 (Minn. 1992) (approving special interrogatory on date of offense, which determined whether sentencing enhancement statute applied, if accompanied by correct instruction on burden of proof); State v. Olson, 379 N.W.2d 524, 527 (Minn. 1986) (stating guidelines commission contemplated that jury would determine value of property stolen for purposes of determining presumptive sentence for receiving stolen property). This case law has been summarized as follows: “In criminal cases, a special interrogatory may be used if it relates solely to sentencing and does not tend to lead a jury to a finding of guilt.” State v. Schmitz, 559 N.W.2d 701, 706 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997).

The separate sentencing question presented to the jury here was presented in a separate proceeding occurring after the jury’s verdict finding Chauvin guilty. Therefore, it could not have tended to lead the jury to a finding of guilt. The jury was given no indication that there would be a “second stage” of the trial until after its guilty verdict was rendered.

It is only a small step from the special interrogatories approved in Robinson, Schmitz and similar cases to the sentencing determination made by the jury here. As in Robinson and Schmitz, the jury was asked to make a factual determination independent of the question of guilt and innocence but necessary to determine the appropriate sentence. And the trial court bifurcated this sentencing determination from the trial of Chauvin’s guilt or innocence so as to avoid any prejudice to the jury’s verdict on that issue.

It is true, as Chauvin points out, that at the time of trial there was no rule or statute in Minnesota that authorized a jury’s determination of a factual issue relating solely to sentencing. But Chauvin presents no authority calling into legitimate question the district court’s authority to respond as it did to the constitutional dictates of Blakely. It would be curious indeed if a court, responding to a constitutional holding mandating a particular procedure, particularly one as familiar as a jury determination of a factual issue, could not implement that procedure until the legislature or a rules committee had cleared the way. Our constitution mandates jury trials in criminal prosecutions and in many civil proceedings. See Minn. Const. art. 1, §§ 4, 6. We do not believe a jury determination of a particular factual issue is a novel remedy requiring legislative authorization or study by a rules committee and approval by the supreme court before it can be applied by the district court in an individual case.

Chauvin also argues that the Legislature’s recent amendments to Minnesota sentencing statutes confirm that no prior authority for jury sentencing determinations existed. See 2005 Minn. Laws ch. 136, art. 16; see generally No. States Power Co. v. Comm’r of Revenue, 571 N.W.2d 573, 575-76 (Minn. 1997) (noting presumption that legislative amendment changed existing law unless it appears the Legislature intended only to clarify the earlier statute). But the 2005 amendments are presumed only to have changed prior statutory law, which required the court to find the factors warranting departure. See Minn. Stat. §§ 244.10, subd. 1, 609.1095, subd. 2 (2004); cf. Agassiz & Odessa Mut. Fire Ins. Co. v. Magnusson, 272 Minn. 156, 166, 136 N.W.2d 861, 868 (1965) (holding statutes are ordinarily presumed not to alter the common law). The supreme court has the authority to regulate practices and procedures used in criminal prosecutions. State v. Johnson, 514 N.W.2d 551, 553 (Minn. 1994). The 2005 legislative amendments do not authoritatively determine whether the courts had authority before their enactment to submit sentencing questions to a jury.

The supreme court has recognized in Shattuck II that it “has the authority to establish procedures to apply the requirements of Apprendi and Blakely to sentencing in Minnesota.” ____N.W.2d ___, ___, 2005 WL 1981659, at *14. The court declined to exercise that authority in the case before it but did not “foreclose the district court from considering any constitutionally applicable and/or available laws on remand.” Id. Chauvin argues that only the supreme court has the authority to do what the trial court did here. We disagree.

The supreme court, in rejecting a procedure for jury questioning of witnesses that had been improvised by the trial court, stated it was not suggesting “that every district court procedure on which this court has not ruled is in question.” State v. Costello, 646 N.W.2d 204, 207 n.2 (Minn. 2002). The trial court here was attempting to vindicate a newly-announced constitutional right, not improvising a novel procedure like jury questioning that was constitutionally unnecessary. The court’s jury sentencing procedure, which amounted to a minor extension of the special-interrogatory procedure recognized in Robinson and Schmitz, was neither novel nor unprecedented. The state’s argument that the procedure used here was prudent and reasonable does not refute Chauvin’s claim that it was unauthorized. But we find no rule or statute prohibiting the procedure, and the United States Supreme Court’s holding in Blakely provided ample justification for the trial court to employ it.

Chauvin argues that the proper remedy for a Blakely violation, and the proper procedure in this post-Blakely trial, was to impose the presumptive sentence. But a defendant is not necessarily entitled to his preferred remedy. See generally State v. Lewis, 656 N.W.2d 535, 538-39 (Minn. 2003) (holding that when the trial court has improperly departed based on the plea agreement, the matter can be remanded not only to impose presumptive sentence but to consider vacating the conviction and the plea agreement); State v. Coe, 411 N.W.2d 180, 182 (Minn. 1987) (holding that on remand following reversal of improper sentencing departure the court may reconsider other aspects of the sentence); cf. State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998) (noting there is no constitutional right to specific performance of a plea agreement that has been violated). Submitting the determination of the aggravating factor to the jury fully vindicated Chauvin’s Sixth Amendment right to a jury trial as recognized in Blakely.

Thus, the trial court did not exceed its authority in submitting the question whether the Erlandsons were particularly vulnerable to the same jury that determined Chauvin’s guilt, after the jury’s verdict on that issue had been rendered. It is unnecessary in this case to decide when, or whether, a sentencing determination may be submitted to a different jury, or to the same jury in a unitary trial.

Chauvin raises three other issues in challenging the departure.

First, he argues that it was a violation of due process to try him on the aggravating factor without that factor having been cited in the complaint. A criminal defendant is entitled to notice of the “essential facts constituting the offense charged.” State v. Stewart, 486 N.W.2d 444, 446 (Minn. App. 1992). But the state gave notice before trial that it was seeking an upward departure based on the career-offender statute and the particular-vulnerability aggravating factor. A defendant generally may not be tried for an offense other than the offense(s) charged in the complaint. But the Blakely court’s criticism of the distinction between offense elements and sentencing factors does not require that aggravating factors be included in the charging document. See Blakely, 124 S. Ct. at 2539 (pointing out the “absurd result” to which an arbitrary distinction between offense elements and sentencing factors would lead). It is ironic that Chauvin argues that this dictum in Blakely automatically mandates a new charging procedure in Minnesota, while opposing the trial-by-jury procedure that the Blakely constitutional holding does mandate.

Due process requires that a complaint provide notice to the defendant of the charge on which he will be tried. See McCollum v. State, 640 N.W.2d 610, 618 (Minn. 2002) (noting due process requires defendant receive a charging document adequate to enable him to prepare a defense). But the supreme court has not recognized a right to have potential sentencing provisions cited in the complaint or indictment. See id. (rejecting pre-Blakely argument that first-degree murder indictment needed to include reference to heinous-crimes statute). The pre-trial sentencing-departure notice provided here gave Chauvin as much notice as a reference in the complaint would have done, particularly since the state was free to seek an amendment of the complaint right up until the jury was sworn.

Secondly, Chauvin argues that the prosecutor committed prejudicial misconduct in her closing argument by comparing him to an animal (a lion) preying on other, more vulnerable, animals (the older or weaker “gazelles or antelopes”). He points to case law holding it was misconduct to compare the defendant to an animal. See State v. Washington, 521 N.W.2d 35, 39-40 (Minn. 1994) (holding comparison of defendant to a scorpion was improper). But in those cases, the issue before the jury was the guilt or innocence of the defendant, i.e., whether the defendant committed the charged act or omission. Moral concepts of guilt and innocence have no application to in the animal world, and “animal” analogies are usually employed in such cases to imply the defendant’s lack of a sense of moral responsibility, which is a character trait not directly relevant to whether the defendant committed the act or omission charged. But here, the issue before the jury was the victims’ vulnerability, as well as Chauvin’s knowledge of, and exploitation of, that vulnerability. Although there is an implication, to some extent, of Chauvin’s lack of moral responsibility in the predator-prey analogy, its main point was to bring home the victims’ vulnerability, not Chauvin’s culpability. The predator-prey argument, although a colorful metaphor, was relevant to the “particular vulnerability” sentencing factor at issue here, and not a means to distract the jury from its duty to decide guilt strictly on the evidence presented.

Finally, Chauvin argues that the state failed to prove beyond a reasonable doubt that the Erlandsons were particularly vulnerable. In considering a claim of insufficient evidence, this court is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). It is assumed that the jury believed the state’s witnesses and disbelieved contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

Chauvin’s challenge to the sufficiency of the evidence is without merit. Although there is no published case law yet on the sufficiency of the evidence to meet the Blakely beyond-a-reasonable-doubt standard for sentencing facts, the Erlandsons were well past retirement age (75 and 80), and, although living independently, were beset by hearing problems and medical problems that, along with their trusting lifestyle in a small town, left them vulnerable to a simple swindle such as the one Chauvin forced on them. The jury had the opportunity to view the Erlandsons as they testified and to assess their vulnerability based on first-hand observation, not a paper record. The evidence presented at trial proved that, due to their age and state of mind, they were not able to resist Chauvin’s demands for money, despite their suspicions. Cf. State v. Fett, 414 N.W.2d 783, 784 (Minn. App. 1987) (noting defendant’s concession that 80-year-old victim living alone was vulnerable to his theft by false representation), review denied (Minn. Dec. 22, 1987). Although the Blakely beyond-a-reasonable-doubt standard may present problems of proof in other departure cases, the evidence of vulnerability here is sufficiently strong to support the departure.

Chauvin has filed a motion to strike two sentences from the state’s brief, in which the state asks this court to take judicial notice of public concern over the targeting of older victims. As the state points out in its reply to the motion, the challenged sentences do not make factual assertions. Therefore, we need not decide whether it is appropriate for this court, as an appellate court, to take judicial notice. Because the state’s argument presents a policy concern rather than a factual assertion, we deny the motion to strike.

Affirmed; motion denied.