This opinion will be unpublished and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

A04-1403

 

State of Minnesota,
Respondent,

vs.

Aaron Halvin Benner,
Appellant.

 

Filed May 9, 2006

Affirmed in part, reversed in part, and remanded

Peterson, Judge

 

St. Louis County District Court

File No. K3-03-101884

 

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134;

 

Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN  55802-1298; and

 

Gordon P. Coldagelli, Assistant St. Louis County Attorney, 300 South Fifth Avenue, Room 222, Virginia, MN  55792 (for respondent)

 

John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from a conviction of and sentence for aiding and abetting aggravated robbery and an order denying postconviction relief, appellant argues that (1) the postconviction court erred in concluding that appellant was not denied due process when the prosecutor failed to disclose the victim’s 1996 first-degree criminal-sexual-conduct conviction; (2) the district court committed plain error by allowing a police officer to testify about statements that the victim made; (3) the prosecutor committed prejudicial misconduct in closing argument by suggesting that the defense had the burden of refuting the state’s evidence; and (4) the district court violated his right to a jury trial by imposing an upward durational departure based on its finding that the victim was particularly vulnerable.  We affirm appellant’s conviction and the order denying postconviction relief, but we reverse appellant’s sentence and remand for resentencing.

FACTS

            On October 1, 2003, officers arrested appellant Aaron Halvin Benner (Benner) and his brother Burton Benner after Brent Galindo reported that two men assaulted and robbed him.  The state charged Benner with one count of first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (2002), and one count of simple robbery in violation of Minn. Stat. § 609.24 (2002). 

Galindo testified that he was walking to downtown Virginia when he ran into Benner and his brother.  Galindo recognized Benner as someone he had played cards with in jail, although he could not remember his name.  Benner offered Galindo a cup of whiskey and coke, and the three men kept walking toward an alley behind the library.  Benner asked Galindo if he could borrow some money, and although Galindo had $80 in his wallet, he told Benner that he did not have any money.  The brother walked in front of Galindo and was talking with Benner.  Galindo was then attacked from both sides and knocked unconscious.  When he regained consciousness, his money and two packs of Liggett cigarettes that had been in his pocket were gone. 

            Galindo called the police from the Royal Bar.  Virginia Police Officer Brian Bisping picked up Galindo at the front of the Royal Bar and took him to the police station.  Bisping noted dirt and dried blood on Galindo’s partially swollen face and scraped knuckles and a cut on one hand. 

            Galindo described the two men for Bisping, and Bisping and his partner took Galindo to search for the suspects at local bars.  At the Queen City Sports Palace, Galindo spotted Benner and his brother in the back by the pool tables.  The two men then left out the back door.  Bisping was outside and saw the two men “quickly exit” from the back of the Sports Palace, and they kept looking back at the door while they moved away.  Bisping drove toward them and yelled for them to stop.  Galindo identified the men as the men who had attacked and robbed him, and they were arrested and handcuffed.  In a search of Benner, police found $50 cash, one pack of Marlboro cigarettes, and two packs of Liggett cigarettes. 

            Benner testified that he had spent the day at a friend’s house, and his girlfriend lent him $85.  In the evening, Benner and his brother walked downtown and saw Galindo, whom Benner knew from serving time with him at the Northeast Regional Correction Center.  Benner testified that he had three packs of cigarettes, one Marlboro and two Liggett, and he offered Galindo a cigarette.  When he pulled the cigarettes out of his pocket, his money fell out of his pocket.  Galindo became argumentative because he did not know Benner’s brother.  Galindo pushed Benner’s brother and took a swing at him, and the brother hit Galindo.  Galindo fell to the ground, and the scuffle ended.

A jury found Benner guilty as charged, and the district court imposed a 176-month sentence, which was a departure from the 88-month presumptive sentence.  Benner filed a direct appeal challenging the conviction and the sentence; this court stayed the appeal to allow Benner to file a postconviction petition in the district court.  The postconviction petition was denied, and the appeal was reinstated.  Benner also challenges the order denying postconviction relief.

D E C I S I O N

1.         Admission of evidence of witness’s conviction

Benner argues that the postconviction court erred when it denied his request for a new trial based on his claim that the prosecutor’s failure to disclose that Galindo was convicted of first-degree criminal sexual conduct in 1996 violated his right to due process of law.  Normally, “[t]he decisions of a postconviction court will not be disturbed absent an abuse of discretion.”  Pierson v. State, 637 N.W.2d 571, 577 (Minn. 2002).  But where appellant first files a direct appeal, which this court stays to allow appellant to file a subsequent petition for postconviction relief, we use the standard of review for direct appeals.  Santiago v. State, 644 N.W.2d 425, 439 (Minn. 2002).

            “[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”  State v. Hunt, 615 N.W.2d 294, 299 (Minn. 2000) (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963)) (quotation marks omitted); see also Minn. R. Crim. P. 9.01, subd. 1(6) (requiring that prosecutors “disclose to defense counsel any material or information within the prosecuting attorney’s possession and control that tends to negate or reduce the guilt of the accused as to the offense charged”).   The duty to disclose such evidence exists even if the evidence is admissible only for impeachment purposes and the accused failed to request the evidence.  Hunt, 615 N.W.2d at 299. 

            The United States Supreme Court has adopted a three-part inquiry to be used when determining whether a failure to disclose evidence violates due process: “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.”  Strickler v. Greene, 527 U.S. 263, 281–82, 119 S. Ct. 1936, 1948 (1999). 

            It is undisputed that Galindo’s first-degree criminal-sexual-conduct conviction was favorable to Benner because it was impeaching and that the state inadvertently failed to disclose the conviction.  The disputed issue is whether Benner was prejudiced by the prosecutor’s failure to disclose the conviction.  The supreme court has cautioned that “[n]ondisclosure of evidence that is merely impeaching may not typically result in the kind of prejudice necessary to warrant a new trial.”  Hunt, 615 N.W.2d at 300-01.  And the likelihood of prejudice is decreased “where testimony of the witness sought to be impeached by nondisclosed evidence was not the only damning evidence against defendant.”  Id. at 301 (quotation omitted). 

When examining prejudice, this court looks at whether the evidence would have been admissible at trial and whether, in any reasonable likelihood, the evidence could have affected the judgment of the jury.  Id. at 299-300; see also Gorman v. State, 619 N.W.2d 802, 806 (Minn. App. 2000) (outlining prejudice inquiry), review denied (Minn. Feb. 21, 2001).  The postconviction court determined that Galindo’s conviction would not have been admissible to impeach him.  A district court’s ruling on the impeachment of a witness by prior conviction is reviewed, as are other evidentiary rulings, under a clear-abuse-of-discretion standard.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).

When determining whether to admit evidence of a prosecution witness’s prior conviction, “the major concerns are to protect the witness from being harassed and unduly embarrassed, the jury from being confused and misled, and everyone involved (court, jury, parties) from having to endure an unnecessarily prolonged trial.”  State v. Lanz-Terry, 535 N.W.2d 635, 639 (Minn. 1995).  In Lanz-Terry, the defendant attempted to impeach the victim with evidence of five felony convictions for property crimes and controlled-substance offenses.  Id. at 638.  The supreme court affirmed the district court’s exclusion of the prior-conviction evidence, reasoning that the convictions were only marginally useful to the jury in weighing the victim’s credibility and would have potentially led the jury to decide the case on an improper basis because the convictions might have led the jury to believe that the victim “was a bad person who deserved to be the victim of a crime.”  Id. at 639-41.  

            Galindo’s credibility was central to the case.  But the impeachment value of Galindo’s conviction was diminished by its age (the conviction was nine years old at the time of trial), and the crime for which he was convicted was not directly related to Galindo’s honesty and veracity.  See State v. Bias, 419 N.W.2d 480, 487 (Minn. 1988) (noting that “sexual crimes have less bearing on veracity than do many other crimes”).  Also, because Galindo testified that he met Benner while incarcerated, the jury was on notice that Galindo had committed an offense severe enough to warrant jail time, and it could draw from this whatever inferences it felt appropriate.  Providing the jury with the nature of the conviction had little additional impeachment value.   

Balanced against the minimal impeachment value of the conviction was the possibility of significant prejudice and confusion.  Galindo’s first-degree criminal-sexual-conduct offense involved repeated sexual contact with a girl under age 16.  Evidence about the conviction might have distracted the jury from its assigned function and led the jury to believe that Galindo was a bad person who deserved to be the victim of a crime.  In light of the minimal impeachment value of the conviction and the significant potential for prejudice, the postconviction court’s determination that Galindo’s conviction would not have been admissible to impeach him was not a clear abuse of discretion. 

Furthermore, even if Galindo’s conviction were admissible at trial, there is not a reasonable likelihood that the conviction could have affected the judgment of the jury.  As we have already discussed, the impeachment value of the conviction was minimal.  Also, although Galindo was the state’s only eyewitness, his testimony was not the only damning evidence against Benner.  Additional evidence included (1) Bisping’s observations of Galindo’s injuries, which corroborated Galindo’s testimony that he was attacked; (2) Bisping’s testimony that Benner and his brother quickly left out the back door of the Queen City Sports Palace when Galindo entered the bar; and (3) Benner was carrying $50 in cash and two packs of Liggett cigarettes when he was arrested, which was consistent with Galindo’s testimony about the items that were taken from him during the robbery.  Benner has not shown that he was prejudiced by the prosecutor’s failure to disclose Galindo’s conviction.

2.         Hearsay evidence

            During trial, Bisping testified about information that he received from Galindo during the investigation that led to Benner’s arrest.  Benner argues that admitting this hearsay evidence was prejudicial error that deprived him of his right to a fair trial.  Evidentiary rulings are committed to the district court’s discretion and will not be reversed absent a clear abuse of discretion.  State v. Bobadilla, 709 N.W.2d 243, 256 (Minn. 2006).  “Evidentiary errors warrant reversal if ‘there is any reasonable doubt the result would have been different had the evidence not been admitted.’”  State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996) (quoting State v. Naylor, 474 N.W.2d 314, 318 (Minn. 1991)).

As a general rule, a defendant who fails to object to a particular error at trial is deemed to have forfeited his right to have the alleged error reviewed on appeal; however, a defendant may obtain appellate review and relief from plain errors affecting substantial rights if those errors had the effect of depriving the defendant of a fair trial.  State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994).

When explaining how an investigation focused on a particular defendant, a police officer testifying in a criminal trial may not relate hearsay statements of others.  Id.; see also State v. Hardy, 354 N.W.2d 21, 24-25 (Minn. 1984) (discussing improper elicitation of evidence about tip leading to defendant).  But a statement is not hearsay if “[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . consistent with the declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility as a witness.”  Minn. R. Evid. 801(d)(1)(B); see State v. Arndt, 285 N.W.2d 478, 481 (Minn. 1979) (statement may be offered nonsubstantively to corroborate witness’s trial testimony if witness available for cross-examination).

Under Minn. R. Evid. 801(d)(1)(B), Bisping’s testimony about Galindo’s statements was not hearsay.  Galindo testified at trial and was subject to cross-examination about statements he made to Bisping.  Defense counsel challenged Galindo’s credibility by disputing his recollection and by impeaching him with prior inconsistencies.  See State v. Nunn, 561 N.W.2d 902, 909 (Minn. 1997) (to be admissible under Minn. R. Ev. 810(d)(1)(B), declarant’s credibility must have been challenged and statement must bolster declarant’s credibility as to point of challenge).  Bisping’s testimony was consistent with, and corroborated, Galindo’s testimony.  It was not plain error for the district court to admit Bisping’s testimony.

3.         Shifting burden of proof

            During closing argument, the prosecutor stated:

And, again, the timing, I can’t explain it for you, but neither can anybody else.  There are discrepancies in the timing.  There are discrepancies in the timing, but not enough so to cause reasonable doubt.  [Benner] has got himself going out the back door before Officer Bisping and Mr. Galindo even leave the police station.  Mykell Dertinger, she gets to the Sports Palace sometime after 9:00; [Benner] is not there.  He gets there – what does she tell Officer Hebl, an hour, hour-and-a-half, maybe two hours after she is there do these guys show up – does [Benner] show up.  And then how long did you talk to them before they left?  Anywhere from a half an hour to an hour-and-a-half.  Well, those are big discrepancies by everybody.  But that’s by everybody trying to recall something that occurred five, six months ago.  That is not reasonable doubt, ladies and gentlemen.  That’s human – human foibles, human frailty.  It is the other evidence that can’t be reasonably explained by the defendant and his theory.

 

Benner argues that the prosecutor’s statement, “It is the other evidence that can’t be reasonably explained by the defendant and his theory,” deprived him of a fair trial by exploiting the fact that the defense did not present evidence to rebut the state’s theory of the crime. 

The state has the burden of proving all elements of a crime beyond a reasonable doubt, and the burden of proving innocence cannot be shifted to an accused.  State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993).  The prosecutor may not shift the burden of proof to the accused by commenting about the failure to call witnesses or to present evidence.  State v. Race, 383 N.W.2d 656, 664 (Minn. 1986).  But prosecutors are free to argue that a particular defense or argument has no merit in view of the evidence.  State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993).  “[A] remark by a prosecutor on the lack of evidence regarding the defense’s theory [does] not shift the burden of proof to the defense.”  Gassler, 505 N.W.2d at 69 (citing Race, 383 N.W.2d at 664. 

We agree with the district court that when read in the context of the prosecutor’s argument, the statement to which Benner objects was not a comment on the presumption of innocence or the burden of proof; it was an argument about the defense’s explanation of the evidence.  The prosecutor’s closing argument did not improperly shift the burden of proof.  

            4.         Sentencing Departure

The district court imposed a 176-month sentence, which is a departure from the 88-month presumptive sentence.  Benner argues that under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), the sentencing departure violated his constitutional right to a jury trial.[1]  The state contends that because Benner did not object to his sentence at trial, this court may only review the sentence under a plain-error analysis.  But this court has declined to apply plain-error analysis to unobjected-to errors in sentencing.  State v. Maurstad, 706 N.W.2d 545, 549 (Minn. App. 2005), review granted (Minn. Feb. 22, 2006).  Therefore, Benner does not need to prove plain error to obtain review of the upward departure.

“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).  In Blakely, the Supreme Court explained

that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.  In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. 

 

Blakely, 542 U.S. at 303-04, 124 S. Ct. at 2537 (emphasis omitted) (citations omitted).    

In State v. Shattuck, 704 N.W.2d 131, 142 (Minn. 2005), the Minnesota Supreme Court held that an upward durational departure from the presumptive sentence prescribed by the Minnesota Sentencing Guidelines violated the defendant’s Sixth Amendment right to a jury trial because the departure was based on aggravating factors that were found by the district court without the aid of a jury.  Here, the sentencing departure was based on the district court’s finding that Benner took advantage of Golinda “because of who he was and because of his disabilities.”  Because this fact was not established by a guilty plea or a jury verdict, the district court erred in using it as a basis for a sentencing departure. Therefore, we reverse the sentence and remand to the district court for resentencing.

Affirmed in part, reversed in part, and remanded.