This opinion will be unpublished and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

A05-764

 

 

State of Minnesota,

Respondent,

 

vs.

 

Chester Lee Grauberger,

Appellant.

 

 

Filed May 2, 2006

Affirmed

Crippen, Judge*

 

 

Beltrami County District Court

File No. K8-03-1705

 

 

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

 

Timothy R. Faver, Beltrami County Attorney, Court Annex, 619 Beltrami Avenue Northwest, Bemidji, MN 56601  (for respondent)

 

Marc G. Kurzman, Kurzman Grant Law Office, 219 Southeast Main Street, Suite 403, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Toussaint, Chief Judge; Ross, Judge; and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            In a bench trial, appellant Chester Grauberger was convicted of third-degree criminal sexual conduct.  The trial followed appellant’s jury waiver, which also addressed aggravating sentencing factors.   Although he acknowledges protection of his procedural rights at trial, including the sufficiency of his jury waiver, appellant claims that the waiver was incomplete without separately addressing his rights to present evidence and defend against claims of aggravating factors.  Because aggravating factors were properly litigated in the court trial, we affirm.  We also reject appellant’s strenuous argument that we correct the district court’s refusal to conduct a Frye-Mack hearing before refusing appellant’s offer of polygraph-testing evidence.

FACTS

            In the summer of 1996, a woman was asleep with her child in the living room of her apartment when a man entered and placed a hand over her mouth and throat.  The man told her to be quiet so as not to wake her child, forced her to the floor, and forcibly raped her.  After the man left, the woman called the police and law enforcement obtained a sample from her for DNA testing.  In 1998, when appellant was incarcerated on another charge, officials matched his DNA to the rape.  Respondent State of Minnesota then charged appellant with one count of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(c) (1994). 

            Prior to trial, appellant waived his right to a jury for both the determination of guilt and sentencing, and proceeded with a court trial.  At the sentencing hearing, following his conviction, the district court relied on evidence and witness testimony litigated at trial to determine the existence of aggravating factors (zone of privacy and presence of child) supporting the doubling of appellant’s presumptive sentence under state guidelines. 

D E C I S I O N

I.

Blakely v. Washington requires that factual findings supporting an upward durational departure from the presumptive guidelines sentence be found by a jury, admitted by the defendant, or found by the district court with the defendant’s consent.  542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004); see also State v. Shattuck, 704 N.W.2d 131, 141-42 (Minn. 2005) (applying the holding in Blakely to the Minnesota Sentencing Guidelines).

Appellant argues that the district court’s sentence, premised on aggravating factors, violated his Sixth Amendment rights because he did not knowingly, intelligently, and voluntarily waive his right to testify, to have prosecution witnesses testify, to question the prosecution witnesses, and to require favorable witnesses to testify in his defense. 

To permit criminal adjudications on stipulated facts, a waiver of jury-trial rights must address appellant’s rights to present evidence and confront state witnesses.  Minn. R. Crim. R. 26.01, subd. 3.  But appellant did not engage in a trial on stipulated facts.  Rather, he had a full trial in this case, with a valid waiver of the only right he did not enjoy, the determination of facts by a jury.  Because the aggravating factors were fully litigated during the court trial, appellant had no additional rights to waive.  See State v. Zulu, 706 N.W.2d 919, 926 (Minn. App. 2005) (holding that defendant’s Blakely rights were adequately waived when defendant properly waived right to a jury determination and was not denied opportunity to exercise other trial rights).

Appellant also alleges that the aggravating factors cannot support an upward departure because they were not specifically described in the charging document.  But the aggravating factors were recited in the complaint against appellant.  Moreover, there is no requirement in the law that the charging document include the aggravating factors, as long as the defendant has notice of them. 

II.

            Appellant argues that the district court abused its discretion by failing to conduct a Frye-Mack hearing to determine the admissibility of polygraph-testing evidence.  He claims as well that the court improperly deprived him of his right to present a defense by excluding testimony that he took and passed a polygraph test.

            It is not our prerogative to disregard State v. Opsahl, 513 N.W.2d 249, 253 (Minn. 1994), and its antecedents, which hold that evidence of a polygraph test is inadmissible as a matter of law.  The merit of appellant’s argument depends on future supreme court determinations or determinative legislation. 

            Appellant contends that review of this issue is required because the legislature has provided for the use of polygraph testing for sex offenders who are on probation or conditional release.  Minn. Stat. § 609.3456(a) (Supp. 2005).  He asserts that if the result of a polygraph test can potentially serve as the basis for a probation revocation, then polygraph-testing evidence should be admissible during trials.  This is merely a policy consideration entering into any future supreme court determinations on use of polygraph testing results.  Moreover, because the manner in which testing results may be used under the statute has not yet been made clear, it would be premature to address its collateral implications.

            As appellant observes, both the state and federal constitutions afford criminal defendants a due-process right to “a meaningful opportunity to present a complete defense.”  State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1984)).  But the right to present a defense is not absolute.  State v. Hannon, 703 N.W.2d 498, 506 (Minn. 2005).  “[I]n exercising this right, both the accused and the state must comply with procedural and evidentiary rules designed to ensure both fairness and reliability in the ascertainment of guilt and innocence.”  State v. Richardson, 670 N.W.2d 267, 277 (Minn. 2003) (quotation omitted).  Polygraph-testing evidence is not admissible in criminal trials, Opsahl, 513 N.W.2d at 253, and this court has held that defendants do not have a “due process right to admission of polygraph test results,” State v. Sullivan, 360 N.W.2d 418, 422-23 (Minn. App. 1985). 

III.

            Appellant raises two issues in his pro se supplemental brief:  He claims that the district court abused its discretion by admitting Spreigl evidence and that the evidence is insufficient to support the verdict.

A.         Spreigl Evidence

A reviewing court will not reverse the district court’s admission of evidence of other crimes or bad acts, Spreigl evidence, unless an abuse of discretion is clearly shown.  State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988).  To prevail, an appellant must show error and the prejudice resulting from the error.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).  Admission of Spreigl evidence is less prejudicial if the trial is to the court rather than a jury.  Irwin v. State, 400 N.W.2d 783, 786 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987).

            Appellant argues that the district court should have excluded evidence of his prior conviction because the court used the “previous conviction to ignore the established perjury of the alleged victim.”  Essentially, appellant contends that the victim was lying and that the district court improperly used his prior conviction as offsetting evidence.  Appellant has failed to meet his burden to show flaws in the court’s decision to consider this evidence.  Even more importantly, appellant has failed to note any statements or events in the court trial to suggest that the evidence prejudiced him.  Given these circumstances, the district court did not abuse its discretion in admitting evidence of appellant’s prior conviction.

B.         Sufficiency of the Evidence

In considering a claim of insufficient evidence, this court’s review “is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the [fact-finder] to reach the verdict which [it] did.”  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the fact-finder “believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  “This is especially true when resolution of the matter depends [mainly] on conflicting testimony.”  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  We are not to disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

Appellant argues that the evidence in this case is insufficient to support a guilty verdict due to the victim’s “perjury” as well as the allegedly erroneous admission of the Spreigl evidence and exclusion of appellant’s polygraph results.  As stated above, the district court properly admitted the Spreigl evidence and properly excluded the results of the polygraph test.  This case involved a credibility determination between appellant and the victim, both of whom testified at trial.  The district court believed the victim and found appellant’s testimony incredible.  Taking the evidence in a light most favorable to the verdict, the evidence is sufficient to support the verdict.

Affirmed.