STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1513

State of Minnesota,

Respondent,

Will Matthew Hendrickson,

Appellant.

Filed July 11, 2006

Affirmed

Ross, Judge

Dakota County District Court

File No. K7-04-2642

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

James C. Backstrom, Dakota County Attorney, Joseph K. Boche, Assistant Dakota County Attorney, Dakota County Judicial Center, 1560 Highway 55 West, Hastings, MN 55033 (for respondent)

Phillip S. Resnick, Phillip S. Resnick & Associates, 1925 Rand Tower, 527 Marquette Avenue south, Minneapolis, MN 55414 (for appellant)

Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Ross, Judge.

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

ROSS, Judge

In this appeal from a conviction of first-degree burglary under Minn. Stat. § 609.582, subd. 1(a) (2004), appellant William Hendrickson argues that the evidence is insufficient to support his conviction. Hendrickson also argues that the district court denied him the right to present a defense by excluding evidence of his state of mind and violated his Fifth Amendment right to be free from compelled self-incrimination by asking him to ratify a stipulation in open court. Because the record evidence supports the jury’s verdict and because we find no constitutional error or abuse of discretion in the court’s evidentiary rulings, we affirm.

FACTS

This case arises from Will Hendrickson’s acquisition and relinquishment of someone else’s bicycle. Shortly after midnight on August 8, 2004, Hendrickson went to Fred Jorgenson’s house and took a bicycle belonging to Jorgenson’s 12-year-old son from Jorgenson’s closed garage. Jorgenson’s son heard a loud noise in the garage. He looked inside, realized that his bicycle—a $300 birthday gift from his father—was missing and, through the living room window, saw Hendrickson riding away. He woke his father and told him. Jorgenson called the police. Hours later Hendrickson abandoned the bicycle, unsecured, in the yard of one of Jorgenson’s neighbors. Jorgenson found the bicycle in his own front yard the next morning.

Hendrickson was acquainted with the Jorgenson family. He had dated Jorgenson’s daughter, Stephanie. But Stephanie Jorgenson’s mother had obtained an Order for Protection (OFP) that prohibited Hendrickson from contacting Stephanie or entering the Jorgenson residence. The court issued the OFP one month before Hendrickson entered the Jorgenson garage and took the bicycle, and the OFP was still in effect at the time of the taking.

Hendrickson told an investigating officer that on the night of the incident he needed transportation. He went to Jorgenson’s house to look for Stephanie Jorgenson, noticed that her car was gone, and took the bicycle to ride to his friend’s house. Hendrickson said that he entered Jorgenson’s garage through an unlocked service door. Hendrickson told the investigator that the bicycle “should be” where Hendrickson dropped it (unlocked in the yard of one of Jorgenson’s neighbors), “unless someone else possibly stole it” after Hendrickson left it. The state charged Hendrickson with first- and second-degree burglary, in violation of Minn. Stat. § 609.582, subds. 1(a), 2(a) (2004), and violation of an order for protection, in violation of Minn. Stat. § 518B.01, subd. 14(a), (b) (2004).

Hendrickson wanted to present evidence at trial that Stephanie Jorgenson had contacted him several times since the court issued the OFP. He argued that it demonstrated his state of mind when he entered Jorgenson’s garage. The state moved to exclude this evidence as irrelevant. The district court granted the state’s motion and excluded evidence that Stephanie Jorgenson had contacted Hendrickson.

At trial, outside the jury’s presence, Hendrickson stipulated to the relevant provisions of the OFP and to his knowledge of the OFP. The prosecutor then read the stipulation to the jury, and the district court asked Hendrickson’s counsel if Hendrickson stipulated to those facts. The district court next asked Hendrickson, “And you agree those are the facts in this case?” Hendrickson responded affirmatively. Hendrickson moved for a mistrial, arguing that the prosecutor and the district court violated his right to remain silent by asking him in front of the jury whether he agreed with the stipulation. The district court denied Hendrickson’s motion.

The jury returned guilty verdicts on all three counts. The district court stayed the imposition of a sentence and placed Hendrickson on probation for a period up to five years. Hendrickson’s appeal follows.

D E C I S I O N

Hendrickson first challenges the sufficiency of the evidence supporting his conviction of first-degree burglary. When an appellant challenges the sufficiency of the evidence, we review the record to determine “whether the facts in the record and the legitimate inferences drawn from them would permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt.” Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999) (quotation omitted). We view the record in the light most favorable to the conviction. State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998). The fact-finder has the exclusive function of judging witness credibility and weighing the evidence, and we assume that the fact-finder believed the evidence supporting the state’s case and disbelieved contrary evidence. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).

A person commits first-degree burglary if he enters a dwelling “without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building” when a non-accomplice is present inside. Minn. Stat. § 609.582, subd. 1(a) (2004). The state must prove both that the defendant made an illegal entry and that he intended to commit or actually committed an independent crime other than trespass. State v. Colvin, 645 N.W.2d 449, 452 (Minn. 2002). Violation of a no-entry provision in an OFP is not an independent crime for purposes of burglary. Id.at 454.

Hendrickson does not dispute that he entered Jorgenson’s garage without consent or that the garage constitutes a dwelling within the meaning of the statute. Nor does he dispute that he lacked permission to take the bicycle. He argues instead that the record does not show that he committed a crime by taking the bicycle without permission, relying on his assertion that he returned the bicycle the next morning. We must therefore decide whether the taking in this case constitutes the crime of theft.

A person commits a theft when he “intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other’s consent and with intent to deprive the owner permanently of possession of the property.” Minn. Stat. § 609.52, subd. 2(1) (2004); State v. Franklin, 692 N.W.2d 82, 85 (Minn. App. 2005), review denied (Minn. Apr. 19, 2005). Theft also occurs when a person commits the same act but “with the intent to exercise temporary control only” and with “an indifference to the rights of the owner or the restoration of the property to the owner.” Minn. Stat. § 609.52, subd. 2(5)(i); Franklin, 692 N.W.2d at 85. Return of the property to the owner is not a defense because the crime is “complete upon the taking.” State v. Larson, 605 N.W.2d 706, 711 (Minn. 2000); see also Minn. Stat. Ann. § 609.52, subd. 2(5) advisory comm. cmt. (West 1963) (noting that “restoration or offer to restore should be immaterial”).

The record undisputedly shows that Hendrickson intentionally exercised temporary control of the bicycle. Hendrickson argues that he did not act with indifference because he returned the bicycle. We are not persuaded. Hendrickson never actually returned the bicycle to its owner, and the manner in which he left it belies the assertion that he acted with due care for the rights of its owner or for its restoration to the owner. Rather, he left the bicycle unsecured in a neighbor’s front yard. Hendrickson admitted that Jorgenson would find the bicycle only if someone else had not stolen it from where he had abandoned it. This tends to demonstrate his awareness of the risk of leaving the bicycle unprotected, indicating to the jury that he acted with indifference to the property rights of the owner and to the restoration of the bicycle to him. Even if Hendrickson actually had returned the bicycle carefully to the Jorgensons instead of leaving it to whoever should come upon it, the verdict is still well founded because return of the bicycle to its owner is not a defense. See Larson, 605 N.W.2d at 711. We conclude that although the record evidence and factual inferences may not be overwhelming, they are sufficient to permit a jury to reasonably determine that Hendrickson is guilty beyond a reasonable doubt of first-degree burglary.

II.

Hendrickson argues that the district court denied his right to present a defense by excluding evidence that Stephanie Jorgenson contacted him after the issuance of the OFP. This court reviews evidentiary challenges for an abuse of discretion, and we apply that standard even when an appellant alleges that his constitutional rights were violated. State v. Profit, 591 N.W.2d 451, 463 (Minn. 1999).

Both the state and federal constitutions guarantee a criminal defendant’s 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).

Hendrickson claims that the district court should have admitted evidence that Stephanie Jorgenson maintained contact with him after the issuance of the OFP to demonstrate his state of mind when he entered Jorgenson’s garage and took the bicycle. But Hendrickson does not explain how this evidence bears on his state of mind with respect to the charges. He has acknowledged that he lacked permission to take the bicycle, and evidence of Stephanie Jorgenson’s contact with him is not probative of the issues concerning those charges. See Minn. R. Evid. 401 (defining relevant evidence). Because this evidence is irrelevant, we conclude that the district court did not abuse its discretion by excluding it and that it did not deny Hendrickson his right to present a defense.

III.

Hendrickson argues finally that the district court violated his Fifth Amendment right to be free from self-incrimination when it asked in the jury’s presence whether he agreed with the stipulation regarding the existence and his knowledge of the OFP. The district court denied Hendrickson’s motion for a mistrial, and Hendrickson now challenges that denial on appeal. This court reviews a denial of a motion for a mistrial for an abuse of discretion. State v. Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003). But whether the district court violated Hendrickson’s Fifth Amendment privilege against self-incrimination is a question of law, which this court reviews de novo. State v. Kaquatosh, 600 N.W.2d 153, 156 (Minn. App. 1999), review denied (Minn. Dec. 14, 1999). The district court should deny a motion for a mistrial unless there is a reasonable probability that the outcome of the trial would be different had the event prompting the motion not occurred. State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006).

Hendrickson highlights that both the prosecutor and the district court asked Hendrickson personally whether he agreed with the stipulation. The record indicates that only the district court questioned Hendrickson about the accuracy of the stipulation. But for reasons unknown by the parties or the district court, the trial transcript does not accurately reflect the precise exchange that occurred. Outside the presence of the jury, the district court heard both parties’ recollections of the exchange. After the trial, the district court issued an order in which it found that the prosecutor had requested the district court to ask Hendrickson whether he agreed with the stipulation. This finding is supported by the record and warrants this court’s deference. See State v. Marchbanks, 632 N.W.2d 725, 730 (Minn. App. 2001).

Both the federal and state constitutions protect a defendant’s right to be free from compelled self-incrimination. U.S. Const. amend. V; Minn. Const. art. I, § 7. This protection ensures that a person will not be required to give testimony that tends to inculpate him in a crime. In re Contempt of Ecklund, 636 N.W.2d 585, 588 (Minn. App. 2001) (citing Maness v. Meyers, 419 U.S. 449, 473, 95 S. Ct. 584, 598 (1975) (White, J., concurring)). The district court asked Hendrickson whether he agreed with the stipulation of facts that the prosecutor read to the jury. Hendrickson’s counsel did not object to the question, and Hendrickson answered, “Yep.” The procedural irregularity of having Hendrickson openly acknowledge the stipulation appears to be the result of mid-trial confusion and was of no apparent consequence. The facts in the stipulation do tend to show that Hendrickson violated the OFP, but those facts were admitted in the stipulation itself. Having reviewed the record, we conclude that there is no reasonable probability that Hendrickson’s open acknowledgement of the stipulation had any effect on the outcome of the trial. The district court acknowledged the error but acted well within its discretion by denying Hendrickson’s motion for a mistrial.

Affirmed.