A04-1715

A05-450

State of Minnesota,

Respondent (A04-1715),

Appellant (A05-450),

vs.

Rossco A. Ross,

Appellant (A04-1715),

Respondent (A05-450).

Filed December 20, 2005

Reversed and remanded

Hudson, Judge

Hennepin County District Court

File No. 03011555

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101; and

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

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for Ross)

Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Hudson, Judge.

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

HUDSON, Judge

The district court denied appellant Rossco Ross’s motion to sever charges of one count of identity theft and three counts of theft by swindle. Ross was acquitted on one count of theft by swindle and found guilty on the remaining three counts.

In this consolidated appeal, Ross argues that the district court erred in refusing to sever the four counts, resulting in unfair prejudice. The state challenges the district court’s refusal on remand to empanel a sentencing jury, consistent with the rule in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Because the three theft-by-swindle counts did not arise from a single behavioral incident, and because acquittal on one of the theft-by-swindle counts prejudiced Ross with respect to the three guilty verdicts, we reverse and remand. Consequently, we do not reach the remaining issues.

FACTS

The state prosecuted Ross as an accomplice to a series of thefts by swindle arising out of his participation in a broad scheme to use the stolen identities of 32 hospital patients.[1] Over many months, the stolen identities were used by a number of accomplices to swindle (1) telephones and accounts from Qwest, (2) gift and credit cards from Sears, and (3) gift and credit cards from Target Stores.

Two months before trial, Ross filed a motion in limine for severance of offenses under Minn. R. Crim. P. 17.03, subd. 3(1). Before trial, Ross orally renewed his motion for severance of the offenses, and the district court denied the motion. In joining the four counts, the district court did not conduct a Spreigl-type evaluation to determine the relationship between the counts.

After a seven-day jury trial, the jury convicted Ross of one count of identity theft under Minn. Stat. งง 609.527, subds. 2(4), 3(2), .05, subds. 1, 2 (2000); and two counts of theft by swindle of under Minn. Stat. งง 609.52, .05, subds. 1, 2 (2000) of Qwest and Target Stores. The jury acquitted Ross of the theft by swindle of Sears. The district court sentenced Ross on June 8, 2004, and imposed upward durational departures on all three convictions. Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004) was decided on June 24, 2004, and Ross filed a motion requesting to be resentenced consistent with Blakely. This court stayed Ross’s subsequent direct appeal and remanded the case for resentencing consistent with Blakely. The district court resentenced Ross, imposing presumptive guidelines sentences. The district court denied the state’s motion to empanel a sentencing jury. This consolidated appeal from conviction and sentence follows.

D E C I S I O N

Ross argues that the district court erred in declining to sever the four charges because the charged offenses were not part of a single behavioral incident. Further, Ross argues that because the erroneous joinder prejudiced his right to a fair trial, his convictions must be reversed. This court reviews the ultimate decision on denial of a motion to sever under an abuse-of-discretion standard. State v. Dick, 638 N.W.2d 486, 490 (Minn. App. 2002), review denied (Apr. 16, 2002).

A district court must, on motion of either party, sever charges or offenses if “the offenses or charges are not related.” Minn. R. Crim. P. 17.03, subd. 3(1)(a). For purposes of rule 17.03, subdivision 3(1)(a), charges are related if they form part of “a single behavioral incident or course of conduct.” State v. Profit, 591 N.W.2d 451, 458 (Minn. 1999).

The determination of whether offenses arose from a single behavioral incident which would permit their joinder for trial depends on the facts and circumstances of the case. State v. Jackson, 615 N.W.2d 391, 394 (Minn. App. 2000), review denied (Minn. Oct. 17, 2000). In determining whether multiple crimes are part of a single behavioral incident, we traditionally focus on whether the crimes were related in time and place, also considering “‘whether the segments of conduct involved were motivated by an effort to obtain a single criminal objective.’” Id. (quoting State v. Banks, 331 N.W.2d 491, 493 (Minn. 1983)); State v. Dukes, 544 N.W.2d 13, 20 (Minn. 1996).

Ross argues that there was no unity of time or geographic proximity for the separate counts. Ross’s argument is supported by the record, which reflects that the identification cards were stolen by another accomplice from the Sister Kenny Institute before March 15, 2002. The Target Store charge accounts were opened and used on various dates between March 23 and April 30, 2002. The Sears charge accounts were opened and used between April 22 and May 7, 2002. The Qwest telephone accounts were opened in March and April, 2002.

Ross further argues that the crimes lacked a single identified criminal objective, because a goal of “using stolen identities to swindle [various] merchants” is far too broad a goal to be a unifying motivation. See State v. Eaton, 292 N.W.2d 260, 267 (Minn. 1980) (stating that objective “to swindle as much as possible [was] too broad to be a single criminal goal” under statute prohibiting multiple convictions for offenses resulting from single behavioral incident).

The state counters that the four charged offenses are related in the “everyday meaning of the term,” but concedes that the offenses are not related under Minnesota’s traditional “time, place, and criminal objective” test simply because they are separately punishable offenses. The state then argues that because identity theft, by definition, requires intent to use the identity information of another “to commit, aid, or abet unlawful activity,” including theft by swindle, the state would necessarily have to prove the theft-by-swindle counts as predicate offenses for identity theft. See Minn. Stat. ง 609.527, subds. 1(f)(2), 2 (2000) (defining “unlawful activity” and “identity theft”).

The district court, following the sequence set forth in rule 17.03, subd. 3(1), concluded that the identity theft and all of the theft-by-swindle counts were interrelated because of an overlap of identity theft victims in each of the various theft-by-swindle counts. But in making its decision, the district court did not conduct the traditional joinder analysis of “time, place, and criminal objective” to determine if the counts were a single behavioral incident.

The Minnesota Supreme Court has continued to endorse the use of the traditional joinder analysis. See Profit, 591 N.W.2d at 460 (stating that absent a clear amendment to the direction of Minn. R. Crim. P. 17.03, the supreme court declined to abandon the traditional joinder standards requiring that “joined offenses be part of a single behavioral incident and, therefore, the existence of a common plan, alone, is simply insufficient to support joinder”). Even though each of the thefts by swindle is related to the identity theft, the record demonstrates that the three thefts by swindle are not related in time, place, or criminal objective to each other. By failing to conduct the traditional analysis to determine if the claims were related, and because under such an analysis the crimes are not part of a single behavioral incident, we conclude that the district court improperly joined these offenses.

Even when joinder of offenses is improper, “remand is not required if the district court’s denial of the motion to sever was not prejudicially erroneous.” Profit, 591 N.W.2d at 460. The ultimate question when offenses are improperly joined is whether the defendant was prejudicially harmed. Id.

The Minnesota Supreme Court has determined that the Spreigl analysis for admitting other-crimes evidence is a useful framework for evaluating whether the district court’s failure to sever is so prejudicial that reversal is required. Profit, 591 N.W.2d at 461.

Spreigl evidence shall not be admitted in a criminal prosecution unless the court determines: “(1) that the evidence is clear and convincing that the defendant participated in the other offense; (2) that the Spreigl evidence is relevant and material to the state’s case; and (3) that the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice.” State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998). Each of the three prongs must be met. State v. Kates, 616 N.W.2d 296, 300 (Minn. App. 2000), review denied (Minn. Oct. 26, 2000). If evidence relating to each charged offense would have been admissible as Spreigl evidence in separate trials, joinder of the charges is not prejudicially erroneous. Id. at 299. See State v. Conaway, 319 N.W.2d 35, 42 (Minn. 1982) (holding although joinder was technically improper, it was not prejudicial because evidence of each offense would have been admissible as Spreigl evidence in trial of other).

Appellant argues that when a defendant is acquitted of one of the four joined offenses, the first prong of the Spreigl analysis, by definition, cannot be shown on appeal. In other words, appellant contends that his acquittal on the Sears theft-by-swindle charge makes it impossible to apply the first prong of the Spreigl admissibility test. We agree. In Kates, this court concluded that the only way to determine the existence of clear and convincing evidence, despite a jury verdict of not guilty, would be to retry the evidence on a cold record, an action that is clearly outside the role and ability of the appellate courts. 616 N.W.2d at 300. Under Kates, when a trial with improperly joined offenses includes evidence that would not have been admissible as Spreigl evidence had separate trials occurred, due process and fundamental fairness require this court to conclude that the district court’s refusal to separate these offenses was prejudicial error. Id.

Here, the district court improperly joined the four counts and failed to consider whether there was clear and convincing evidence that appellant participated in each offense. Appellant was acquitted of the Sears theft-by-swindle charge; thus, evidence related to that charge would not have been admissible as Spreigl evidence had separate trials occurred. Following Kates, we conclude that the district court committed prejudicial error in joining the offenses.

The state argues alternatively that, under a the standard in State v. Wofford, 262 Minn. 112, 114 N.W.2d 267 (1962), even though Ross was acquitted of one count of theft by swindle, the evidence presented on that count would have been admissible in any event; therefore, Ross suffered no prejudice. See id. at 112, 114 N.W.2d 267.

Under the rule in Wofford, which is similar to, but distinct from, a Spreigl determination, other-crimes evidence is admissible if the offenses are “linked together in point of time or circumstances so that one [could not] be fully shown without proving the other, or where evidence of other crimes constitutes part of the res gestae, it is admissible.” Id. at 118, 114 N.W.2d at 271. In Wofford the supreme court also required that to be admissible, the evidence “must show a causal relation or connection between the two acts so that they may reasonably be said to be part of one transaction.” Id.at 118, 114 N.W.2d at 271–72. Because we have determined that each of the three theft-by-swindle counts was related to the identity-theft count, but they were not connected to each other, we conclude that Wofford is inapplicable.

Finally, the state asks this court to consider creating a less restrictive approach than the traditional joinder analysis for multiple-count white-collar crimes. Although the state’s argument is persuasive, this court leaves the task of extending existing law to the supreme court or the legislature. Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987), review denied (Minn. Dec. 18, 1987). Unless and until such an extension occurs, Profit and Kates are controlling. Accordingly, we conclude that the denial of Ross’s motion to sever was prejudicial and an abuse of the district court’s discretion. Accordingly, we reverse and remand for retrials on the separate counts.

Because of this ruling, we need not reach Ross’s discovery-violation claims or the state’s arguments regarding resentencing on remand.

Reversed and remanded.

[1] An accomplice who worked at the Sister Kenny Institute of Abbott Northwestern Hospital, stole discarded patient identification cards, which contained the patient’s name, date of birth, address, and social security number.