This opinion will be unpublished and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

A05-339

 

State of Minnesota,

Respondent,

 

vs.

 

Harry Maddox,

Appellant.

 

Filed May 30, 2006

Affirmed in part, reversed in part, and remanded

Hudson, Judge

 

Dakota County District Court

File No. K2-04-1205

 

 

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

 

James C. Backstrom, Dakota County Attorney, Phillip D. Prokopowicz, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, Minnesota 55033 (for respondent)

 

John M. Stuart, State Public Defender, Lydia Villalva Lijó, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

 

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

 

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            On appeal from his conviction of and sentence for offering a forged check, appellant argues that the district court: (a) committed plain error in failing to exclude hearsay statements; (b) committed plain error in failing to give a specific unanimity instruction when the state introduced evidence of three separate incidents; and (c) erred in crafting a bifurcated sentencing procedure when the procedure was not authorized by statute.  Appellant also argues pro se that the district court violated his right to self-representation when the court refused to allow appellant to discharge his counsel.  We affirm appellant’s conviction, but we reverse appellant’s sentence and remand for resentencing consistent with the presumptive sentence in the Minnesota Sentencing Guidelines.

FACTS

            Inver Grove Heights police arrested appellant on April 14, 2004, after a Subway restaurant employee telephoned police and reported that a customer attempted to pay for several salads with a money order that the employee believed to be forged.  The state charged appellant with offering a forged check in violation of Minn. Stat. § 609.631, subds. 3, 4(3)(b) (2004).  The state enhanced the charge to a felony based on appellant’s prior convictions and provided notice that, upon a conviction, the state intended to seek sentencing under the career-offender statute, Minn. Stat. § 609.1095, subd. 4 (2004).  Prior to the omnibus hearing, appellant discharged his court-appointed counsel and decided to proceed pro se.  On the scheduled trial date, October 4, 2004, appellant stated that he was unable to proceed without counsel and agreed to representation by a public defender.  The parties appeared for trial on November 17, 2004.  After voir dire, appellant moved to discharge his counsel.  The district court denied his request.

            At trial, the state presented evidence that appellant patronized three separate businesses on April 14.  An employee at Subway in Inver Grove Heights testified that she was working on April 14 when appellant came into the restaurant and attempted to pay for his order with a money order in the amount of $100.  This witness testified that she thought the money order looked suspicious.  She informed appellant that the restaurant would not accept money orders for one hundred dollars.  Appellant left.  The employee then telephoned the police and gave them a description of appellant and his vehicle. 

            Following this report, the police department dispatched Officer Jeffrey Schroeder to the area to look for appellant’s vehicle.  Officer Schroeder located the vehicle in a Domino’s Pizza parking lot, about thirty yards away from the Subway.  Officer Schroeder spoke with the female driver and male passenger of the vehicle.  The man and woman stated that appellant approached them at the Show Place Theater and asked them to drive him around to different businesses. 

Officer Allison Bina arrived on the scene and took over questioning of the couple.  Officer Schroeder then noticed appellant standing at the counter inside Domino’s Pizza.  Officer Schroeder entered the Domino’s Pizza and saw appellant hand a Domino’s employee a money order.  Officer Schroeder took the money order.  After reading the directions printed on the back of the money order to determine its authenticity, Officer Schroeder determined that the money order was fake.  Officer Schroeder took appellant’s wallet and pulled out a yellow driver’s license receipt for Tim Brown.  Appellant stated that the driver’s license belonged to a friend.  Officer Schroeder escorted appellant out of the Domino’s Pizza and turned him over to Officer Bina.  After identifying the individuals in the vehicle, the officers released the couple.  The Subway employee later identified appellant at the Subway after officers took him into custody. 

Officer Schroeder then walked to the Dairy Queen on the same block and asked if any money orders had passed through them that night.  The Dairy Queen’s owner gave Officer Schroeder a money order that looked identical to the money order appellant possessed at Domino’s Pizza. 

The state entered the money order seized from appellant at the Domino’s Pizza and the money order retrieved from the Dairy Queen into evidence.  Officer Bina identified the Domino’s money order on the stand, and then noted that the signature line contained the name Tim Brown, with a St. Paul address.  Officer Bina also identified appellant’s paper driver’s license and noted that it was the same name and address as on the money order.  When Officer Bina ran the driver’s-license number listed on the paper license, the state listed that number as being assigned to Harry Maddox. 

            Kasey Schrandt, an investigator with the Inver Grove Heights Police Department, also testified.  Schrandt did the follow-up investigation to determine the authenticity of the money orders.  Schrandt testified that she went to a Cub Foods in West St. Paul.  According to Schrandt, an employee confirmed that Cub Foods sold the money orders but that the orders were issued for one dollar and not one hundred dollars.

Appellant presented no witnesses in his defense, but rested following the state’s case in chief.  The district court instructed the jury in accordance with 10A Minnesota Practice, CRIMJIG 19.12 (1999), stating that the defendant’s act took place on or about April 14, 2004.  The defense did not raise any objections to the jury instructions, and the jury found appellant guilty of offering a forged check.

            On November 18, 2005, the district court re-convened the jury for purposes of determining whether appellant’s current offense and prior criminal history constituted a pattern of criminal conduct.  An affirmative finding would permit the district court to sentence appellant under Minn. Stat. § 609.1095 (2004), which increases sentences for repeat offenders.  Appellant objected to the bifurcated proceeding.  The jury found that the appellant’s offense of offering a forged check was part of a pattern of criminal conduct.  The district court sentenced appellant under the career-offender statute to 45 months in prison.  This appeal follows. 

D E C I S I O N

I

Appellant challenges the district court’s failure to exclude Schrandt’s testimony, arguing that the testimony recalling her conversation with the Cubs Foods employee constituted inadmissible hearsay.  “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  When a defendant does not object to the admission of evidence, this court reviews the admission under the plain-error standard.  Minn. R. Crim. P. 31.02; State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002).  “The plain error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights.”  Strommen, 648 N.W.2d at 686.  If the defendant meets these three prongs, this court may correct the error “only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”  Id. at 686 (quotations omitted). 

            Out-of-court statements offered to prove the truth of the matter asserted are hearsay and are generally not admissible, subject to certain exceptions.  Minn. R. Evid. 801(c), 802, 803, 804.  Here, the employee’s statements confirming that money orders were purchased from Cub Foods for one dollar, not one hundred dollars, were made outside of trial.  Further, there was no objection, cross-examination, or limiting instruction directing the jury towards a purpose for the statements, and, therefore, the statements were before the jury as statements supporting the truth of the matter asserted.  Unless subject to an exception, the statements were inadmissible.

            Respondent argues that the statements contained sufficient indicia of reliability to qualify for admission under Minn. R. Evid. 803(24), which permits a district court to admit a statement not covered by a specific exception and regardless of the declarant’s availability if the statement meets certain requirements, including the requirement that the statement possess “circumstantial guarantees of trustworthiness.” 

Respondent’s argument lacks merit.  A determination of sufficient circumstantial guarantees of trustworthiness turns on whether: (1) the Confrontation Clause is implicated; (2) the declarant admitted making the statement; (3) the statement was against the declarant’s interest; and (4) the statement is consistent with other evidence introduced by the state.  State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985).  The employee did not testify and was, therefore, not available for cross-examination and could not admit the statement.  Further, there is no indication that the employee’s cooperation with Schrandt was against her penal interest.  Thus, application of the factors supporting admission demonstrates that the statements were not sufficiently trustworthy to be admitted under Minn. R. Evid. 803(24).  Because the statements were inadmissible under well-settled law, the district court committed plain error in failing to exclude the statements.  See Bernhardt v. State, 684 N.W.2d 465, 476 (Minn. 2004) (holding that the admission of inadmissible hearsay was plain error). 

The remaining issue is whether admission of the hearsay statements substantially affected appellant’s rights.  Id. Appellant argues that this third prong is satisfied here because  the statements were testimonial, and the district court violated appellant’s constitutional right to confront and cross-examine witnesses against him, as provided in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).  Appellant’s argument misconstrues the third-prong analysis.  “The third prong [of the plain error test] . . . is satisfied if the error was prejudicial and affected the outcome of the case.”  State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).  A Confrontation Clause violation is subject to a harmless-error analysis.  State v. King, 622 N.W.2d 800, 809 (Minn. 2001).  Thus, assuming that admission of the statements violated Crawford, the violation would not require automatic reversal.  The appropriate inquiry is whether admission of the statement affected the jury verdict. 

Appellant argues that the verdict is attributable to the error of admitting the hearsay statements because the state relied on the employee’s testimony to prove an element of the offense—that the money order was forged.  But the record reflects that the state put forth two alternative means of satisfying this element.  The jury instructions provided, and the state’s closing reiterated, that this element is satisfied if the jury concludes that the money order was altered or if it bore a fictitious name.  The record reflects that the money order and driver’s license in appellant’s possession bore the name Tim Brown, even though the driver’s-license number was assigned to appellant under his name.  Although appellant suggested that he possessed his friend’s license, a reasonable jury could have concluded that the money orders bore a fictitious name. 

Furthermore, there was substantial evidence in the record that the money orders were forged, without relying on the employee’s statements.  The money orders admitted into evidence contain instructions on the back to determine the authenticity of the documents.  Each order instructs vendors not to cash the order unless the dollar amount listed conforms to a specific example.  The dollar amount listed on these orders does not conform to the example.  Officer Schroeder testified that by using this instruction, he determined the orders were forged.  Therefore, the error could not have reasonably affected the jury’s decision, and appellant’s substantial rights were not violated.

II

            Appellant next argues that the district court violated his right to a unanimous jury when it failed to instruct the jury that it had to unanimously agree on which of the acts appellant committed on April 14 constituted offering a forged check.  This court affords the district court wide discretion regarding jury instructions and will reverse only if the district court abuses its discretion.  State v. Stemph, 627 N.W.2d 352, 354 (Minn. App. 2001).  A party who fails to object to jury instructions at trial generally forfeits the right to appeal on the grounds that the jury instructions were erroneous.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  This court considers such a claim under the plain-error analysis.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). 

            It is fundamental that a jury must be unanimous on the question of whether a defendant committed the act that constitutes an element of the offense charged.  Stemph, 627 N.W.2d at 355.  Here, the state charged appellant with one count of offering a forged check under Minn. Stat. § 609.631, subd. 3 (2004), which provides that “[a] person who, with intent to defraud, offers, or possesses with intent to offer, a forged check, whether or not it is accepted, is guilty of offering a forged check.”  The record reflects that the state put forth evidence of three separate acts that each occurred on April 14, 2004: (1) appellant attempted to pay for salads at Subway with a money order; (2) appellant paid for merchandise at the Dairy Queen with a money order; and (3) appellant intended to use a money order to purchase merchandise from Domino’s Pizza.  Because each act independently satisfies the elements of the statutory offense and the acts were not alternative means of committing an element of the offense, the district court’s failure to provide a specific unanimity instruction was erroneous.

We conclude, however, that the district court did not commit plain error.  Plain error exists when the court contravenes clear and established law.  State v. Crowsbreast, 629 N.W.2d 433, 438 (Minn. 2001).  A district court does not commit plain error in instructing a jury if it follows the recommended jury instruction in Minnesota Practice.  See, e.g., State v. Sutherlin, 396 N.W.2d 238, 241 (Minn. 1986) (holding that the district court did not commit plain error when it followed the recommended instruction without objection).  Here, the district court’s instruction conformed to 10A Minnesota Practice, CRIMJIG 19.12 (1999), and was not plain error.

III

            Appellant next challenges the district court’s decision to hold a bifurcated procedure and submit the issue of whether appellant’s current offense is part of a pattern of criminal conduct to the sentencing jury.[1]  Although acknowledging that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 2537 (2004), mandates a jury determination of this finding of fact in order to depart from the presumptive guidelines sentence, appellant argues that the district court lacked inherent authority to bifurcate the proceedings.  It is undisputed that the district court lacked statutory authority to bifurcate the proceedings at the time of appellant’s sentencing.[2]

            Our decision in this matter is controlled by the supreme court’s opinion in State v. Barker, 705 N.W.2d 768 (Minn. 2005), and this court’s opinion in State v. Hobbs, ___ N.W.2d ___ (Minn. App. May 16, 2006).  In Barker, the supreme court held that the mandatory minimum provided by Minn. Stat. § 609.11 for possessing a firearm while committing certain offenses was “unconstitutional to the extent that it authorize[d] the district court to make an upward durational departure upon finding a sentencing factor without the aid of a jury or admission by the defendant.”  705 N.W.2d at 773.  With respect to the appropriate remedy, the state argued that the court should remand to the district court for resentencing, with directions that the district court could exercise its inherent authority to empanel a jury to determine the sentencing factors.  Id. at 775.  The supreme court in Barker rejected that argument stating, “In Shattuck, we rejected the suggestion that the district court should use its inherent power to [e]mpanel a resentencing jury.”  Id. (referring to State v. Shattuck, 704 N.W.2d 131 (Minn. 2005) (Shattuck II)).  The supreme court determined that there was no legislative authorization to empanel a resentencing jury for the purpose of imposing an upward departure from the presumptive sentence pursuant to section 609.11, and, therefore, the district court could not empanel a separate sentencing jury.  Id. at 776; see also Henderson, 706 N.W.2d at 763 (declining to “engraft onto the sentencing guidelines and sentencing statutes a requirement for sentencing juries or bifurcated trials, for to do so would require us to rewrite those guidelines and statutes”).

Although Barker involved empaneling a separate jury on remand, and the issue presented here is a bifurcated trial, the reasoning in Barker is applicable to judicially crafted bifurcated sentencing procedures as well.  See State v. Hobbs, ___ N.W.2d ___ (Minn. App. May 16, 2006) (holding that a bifurcated trial was “not an available option” because the then-applicable statutes required a judicial finding of fact, which Blakely found unconstitutional).  Under Shattuck II and Barker, the district court could not use its inherent authority to submit the issue of whether appellant’s current offense was part of a pattern of criminal conduct to the jury because the district court lacked legislative authority at that time to craft a bifurcated sentencing procedure.  

We recognize that in a concurrent release, State v. Lushenko, ___ N.W.2d ___ (Minn. App. May 30, 2006), this court concludes that Shattuck II and Barker do not prohibit a district court from exercising its inherent authority to submit the issue of whether appellant’s current offense is part of a pattern of criminal conduct to a sentencing jury.[3]  We conclude that Shattuck II and Barker compel the opposite result.  That said, it is not clear to us why, if the judiciary has inherent authority to impose a sentence within the limits set by the legislature, a district court’s inherent authority would not extend to creating sentencing procedures.  But “the task of extending existing law falls to the supreme court,” and does not fall to this court.  Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987), review denied (Minn. Dec. 18, 1987). 

Because the district court lacked authority to bifurcate the trial, we do not address appellant’s arguments regarding alleged errors that occurred during the sentencing proceeding.  We reverse appellant’s sentence and remand for resentencing consistent with the presumptive sentence in the Minnesota Sentencing Guidelines.

IV

Appellant argues pro se that the district court violated his right to self-representation on November 16, 2004, when the district court refused to permit appellant to discharge his recently reappointed counsel after the voir dire.  In denying appellant’s motion, the district court found that appellant’s request constituted “legal maneuvering.”

A criminal defendant has the right to self-representation in a state criminal proceeding.  State v. Christian, 657 N.W.2d 186, 190 (Minn. 2003).  But, the right to self-representation is unqualified only until trial begins.  Id. at 191.  Upon the commencement of voir dire, the district court has discretion to balance the defendant’s right of self-representation against the potential for disruption and delay.  Id. at 193.  Given that the district court granted appellant’s request to reappoint counsel roughly a month before the trial date, the district court’s finding that appellant’s motion was solely designed to delay the proceedings was not clearly erroneous.  Upon examination, we conclude that appellant’s additional pro se claims lack merit.

Affirmed in part, reversed in part, and remanded.