This opinion will be unpublished and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

A05-1028

 

State of Minnesota,

Respondent,

 

vs.

 

David Johnson,

Appellant.

 

Filed August 8, 2006

Affirmed in part, reversed in part, and remanded

Willis, Judge

 

Hennepin County District Court

File No. 04002659

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Randall, Presiding Judge; Willis, Judge; and Parker, Judge.*

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

WILLIS, Judge

            In this appeal from convictions of and sentences for aiding and abetting kidnapping and aiding and abetting attempted first-degree murder, appellant (1) argues that he was denied his right to a speedy trial; (2) challenges the district court’s denial of his request for substitute counsel and acceptance of his waiver of counsel; (3) challenges the district court’s preclusion of testimony; (4) argues that the prosecutor committed prosecutorial misconduct during closing argument; (5) challenges the instruction that the district court gave in response to a question by the jury; (6) argues that his sentences must be reduced to the presumptive guidelines sentences because the district court had no authority to empanel a sentencing jury and that by doing so, the district court violated appellant’s “double jeopardy rights”; (7) argues that his sentences must be reduced to the presumptive guidelines sentences because the sentencing jury’s findings are insufficient to support the sentencing departures; and (8) argues that he was improperly assigned a felony point for an Illinois burglary conviction and a custody point relating to his Illinois-probation status.  We affirm in part, concluding that the majority of appellant’s arguments are without merit; we reverse in part, concluding that the Illinois conviction and probation were not sufficiently proved, and we remand for resentencing.

FACTS

In January 2004, appellant David Johnson and four codefendants were charged with kidnapping or aiding and abetting kidnapping and with attempted first-degree murder or aiding and abetting attempted first-degree murder.  In June 2004, a jury trial was held, during which Johnson proceeded pro se with the assistance of a stand-by counsel. 

At trial, the victim, J.R., testified to the following:  In November 2003, J.R. got into an argument with several women at a friend’s house.  The women hit J.R., put her in a chair, and tied her up with duct tape and phone cords.  She was later gagged and put in a closet.  Some hours later, J.R. heard the voice of Johnson, whom she knew.  Johnson opened the closet door and kicked J.R.’s head ten or more times.  Johnson then asked where his gun was, and he, the women, and another man who had arrived at the house continued to beat J.R. until she lost consciousness.  When she regained consciousness, she was in the trunk of her car.  Johnson and the others drove several cars, including J.R.’s, to an alley in north Minneapolis.  At some point after J.R. felt the car stop, she released a safety latch that opened the trunk into the back seat of the car.  J.R. attempted to climb into the empty driver’s seat, but Johnson and another person stopped her.  Johnson then hit J.R. and held her down on the seat as another person approached with a shotgun and shot her twice at close range.

During the trial, Johnson told the jury that he was innocent of the offenses and that he had been in North Dakota when they occurred.  The jury convicted Johnson of aiding and abetting kidnapping and of aiding and abetting attempted first-degree murder.  The district court then empanelled a sentencing jury, which found three aggravating factors that related to both offenses.  The district court sentenced Johnson to 240 months in prison for the conviction of aiding and abetting kidnapping, an upward departure from the presumptive guidelines sentence of 110 months, and to 240 months for the conviction of aiding and abetting attempted first-degree murder, an upward departure from the presumptive guidelines sentence of 180 months, to be served consecutively.  Johnson appeals from his convictions and sentences.

D E C I S I O N

I.

 

            Johnson first argues that he was denied his right to a speedy trial because his trial was held more than 60 days after his speedy-trial demand.  Both the federal and state constitutions guarantee criminal defendants the right to a speedy trial.  U.S. Const. amends. VI, XIV; Minn. Const. art. I, § 6.  Whether the district court violated a defendant’s constitutional right to a speedy trial is a question of law, which we review de novo.  State v. Cham, 680 N.W.2d 121, 124 (Minn. App. 2004), review denied (Minn. July 20, 2004). 

In Minnesota, a “trial shall be commenced within sixty (60) days from the date of the demand unless good cause is shown.”  Minn. R. Crim. P. 11.10.  To determine whether a delay has deprived a defendant of his right to a speedy trial, a court must balance four factors: “(1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his or her right to a speedy trial; and (4) whether the delay prejudiced the defendant.”  State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999) (citing Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 2191-93 (1972), and State v. Widell, 258 N.W.2d 795, 796 (Minn. 1977) (adopting the four-part Barker inquiry for analysis of claimed speedy-trial violation)).  None of the factors alone is dispositive; rather, the factors are related and “must be considered together with such other circumstances as may be relevant.”  Id. (quotation omitted).  Here, the district court concluded that the reason for the delay was to allow Johnson’s counsel to “be best prepared on such a complicated case,” that the delay was not long enough to warrant relief, and that the delay helped, rather than prejudiced, Johnson’s case.

A.        Length of the Delay

The first Barker factor is presumptively met when a trial occurs more than 60 days after a defendant demands a speedy trial.  Id. at 315-16.  When this factor is met, it triggers review of the remaining three factors.  Id. at 315.  The record shows that Johnson’s trial began on June 14, 2004, 124 calendar days after he demanded a speedy trial.  The delay, therefore, is presumptively prejudicial and requires review of the remaining Barker factors.

B.        Reason for the Delay

The state and the courts have the burden of ensuring speedy trials for criminal defendants.  Cham, 680 N.W.2d at 125; see Windish, 590 N.W.2d at 316.  If a defendant’s own actions caused the delay, there is no violation of the right to a speedy trial.  State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993).  Appointed counsel’s unavailability for trial weighs against a defendant.  See Windish, 590 N.W.2d at 316 (concluding that defense counsel’s unavailability was a component of the delay attributable to the defendant and weighed against the defendant).  If the reason for the delay is out of the prosecutor’s control, such as calendar congestion, rather than a deliberate attempt to delay trial, this factor weighs less heavily against the state.  State v. Friberg, 435 N.W.2d 509, 513 (Minn. 1989).

Here, the record shows (1) that Johnson’s court-appointed attorney did not appear for the trial that was scheduled to begin March 22, 2004, because he was in another trial and (2) that he agreed, in open court without Johnson being present, to continue the trial to June 7, 2004.  At a subsequent hearing, Johnson objected to the continuance and requested a different attorney.  Johnson’s attorney told the district court at that hearing that before the March 22 trial date, he had told Johnson that because “this was a complicated case” and the state had secured his codefendants to testify against Johnson, “he would need additional time to prepare, get transcripts of [codefendant’s] pleas and look at impeachment issues.”  Johnson’s attorney stated further that he believed that when he requested a continuance he had Johnson’s acquiescence and approval to get whatever time he felt he needed to prepare Johnson’s case and that he would not have waived Johnson’s speedy-trial right unless he believed that Johnson acquiesced in it.  Because the record shows that Johnson’s trial was delayed because of his attorney’s unavailability and the complexity of the case and not because of any action by the state, this factor weighs against Johnson.

C.        Assertion of Speedy-Trial Right

            The parties do not dispute, and the record shows, that Johnson asserted his right to a speedy trial, and neither party argues here that Johnson ever waived this right.  Although the record shows, despite Johnson’s claim to the contrary, that Johnson may have told his attorney that the trial could be continued so that the case could be prepared properly, the record also shows that Johnson’s attorney never explained to Johnson his right to a speedy trial and that by continuing the trial date Johnson was waiving that right.  Therefore, this factor weighs in Johnson’s favor.

D.        Prejudice

            To determine whether a delay prejudiced a defendant, this court considers three interests that the right to a speedy trial protects:  (1) preventing lengthy pretrial incarceration; (2) minimizing the defendant’s anxiety and concern; and (3) preventing possible impairment to the defendant’s case.  Windish, 590 N.W.2d at 318; Cham, 680 N.W.2d at 125.  The third interest is the most important.  Windish, 590 N.W.2d at 318.  Because a defendant often has difficulty in proving the precise manner in which his defense was impaired, a defendant need not prove specific prejudice.  Id. at 318-19. 

Johnson argues that he was prejudiced by the delay of his trial because (1) he “suffer[ed] the oppression of pretrial incarceration, as well as anxiety and concern over his predicament, for an additional two and one-half months while awaiting trial”; (2) by the time of trial, he “had difficulty locating witnesses”; and (3) the delay “provided the state additional time to convince [Johnson’s] codefendants to testify against [him].”  The state argues that the stress Johnson experienced was not more than any defendant involved in a trial would experience.  The state also argues that “it is complete speculation that [Johnson] was unable to locate witnesses due to delay” and that it is “equally conceivable that witnesses could not be located because they did not wish to be located.” 

The record shows that not all of Johnson’s witnesses could be located for subpoena service, despite several attempts to complete service both before and after he dismissed his attorney.  And the record shows that Johnson’s codefendants had already agreed to testify against him before the first trial date.  And the anxiety that Johnson claims to have suffered because of the delay is not prejudicial here.  See Friberg, 435 N.W.2d at 515 (concluding that defendant was not prejudiced by a more than 60-day delay when only claimed prejudice was “the stress, anxiety and inconvenience experienced by anyone who is involved in a trial”).  Because there is no evidence that the delay affected the strength of Johnson’s case, we conclude that the 64-day delay of Johnson’s trial did not prejudice him and that, therefore, this factor weighs against Johnson.

            Based on consideration above of the Barker factors, we conclude that Johnson’s right to a speedy trial was not violated.

II.

 

            Johnson argues that the district court erred by “accepting [Johnson’s] waiver of counsel without first determining whether [he] was entitled to appointment of different counsel.”  Essentially, Johnson alleges that the district court refused to rule on his request for substitute counsel and instead deferred to the policy of the public defender’s office not to provide another attorney if the defendant discharged his assigned attorney.  The decision whether to grant a request for substitute counsel is within the district court’s discretion and will not be disturbed absent an abuse of that discretion.  State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001).  An indigent defendant’s right to the assistance of counsel does not include the right to choose which attorney will provide the representation.  State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977); see U.S. Const. amend. VI; Minn. Const. art. I, § 6.  A district court will grant an indigent defendant’s request for substitute counsel “only if exceptional circumstances exist and the demand is timely and reasonably made.”  Vance, 254 N.W.2d at 358.

            A defendant has the burden of showing the existence of exceptional circumstances to justify the appointment of substitute counsel.  See Worthy, 583 N.W.2d at 279.  Exceptional circumstances “are those that affect a court-appointed attorney’s ability or competence to represent the client.”  Gillam, 629 N.W.2d at 449.  “General dissatisfaction or disagreement with appointed counsel’s assessment of the case does not constitute . . . exceptional circumstances.”  Worthy, 583 N.W.2d at 279.  Personal tension between defendant and counsel during trial preparation also does not constitute exceptional circumstances when it does not relate to counsel’s ability or competence to represent a defendant.  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). 

            On appeal, Johnson argues that he requested substitute counsel because “[c]ounsel was unprepared and failed to even show for trial on March 22”; “counsel waived [his] right to a speedy trial” without Johnson’s “expressed consent”; and “counsel encouraged him to lie and say he had agreed to the continuance.”  In addition, Johnson argued to the district court that his counsel visited him only once before the first trial date, was late in providing him with copies of discovery, and told Johnson that Johnson was “going to lose the case.”

            Because of the serious nature of the charges against Johnson and the district court’s concern that Johnson might choose to represent himself, the district court referred Johnson’s request for substitute counsel to the chief judge of the Hennepin County district court.  After listening to Johnson’s reasons for seeking substitute counsel, the chief judge denied Johnson’s request, stating, “[I]t seems to me you have two options.  One is we try to explore how to repair the relationship between you and [your counsel].  Or, two, is you’re going to represent yourself.  But there is no option of another lawyer.”  Later, the chief judge again stated, “You don’t have the right to a different attorney.”  The chief judge acknowledged that “there may have been some mistakes, inadvertent and innocent mistakes, about not having [Johnson] come up” when his trial was continued, and the chief judge told Johnson that Johnson had a good attorney and that “the role of a defense lawyer is to tell people things that they don’t want to hear.”  But Johnson told the chief judge that he still wanted to represent himself.  We conclude that the chief judge adequately considered Johnson’s claim for substitute counsel.

Based on the record, we conclude that no exceptional circumstances were shown that would justify granting Johnson’s request for substitute counsel.  Therefore, the chief judge did not abuse his discretion by denying Johnson’s request for substitute counsel.

            Johnson also argues that his waiver of his right to counsel was invalid because the chief judge, in effect, refused to rule on his request for substitute counsel.  Because we have concluded that the chief judge adequately considered Johnson’s substitute-counsel request and that the denial of Johnson’s request was not an abuse of discretion, Johnson’s argument lacks merit. 

And the record shows that Johnson waived his right to counsel knowingly, voluntarily, and intelligently.  In Minnesota, criminal defendants have “a corollary constitutional right to choose to represent themselves in their own trial.”  Worthy, 583 N.W.2d at 279 (citing Faretta v. California, 422 U.S. 806, 819-21, 95 S. Ct. 2525, 2533-34 (1975)).  To determine whether a waiver of the right to counsel is knowing, voluntary, and intelligent, district courts “should comprehensively examine the defendant regarding the defendant’s comprehension of the charges, the possible punishments, mitigating circumstances, and any other facts relevant to the defendant’s understanding of the consequences of the waiver.” Id. at 276 (quotation omitted); see also Minn. R. Crim. P. 5.02, subd. 1(4) (stating that the district court “shall ensure that a voluntary and intelligent written waiver . . . is entered in the record”). 

Here, the record shows that one day after the hearing before the chief judge, Johnson decided to keep his court-appointed counsel for the June 7 trial, but that, on the day of trial, Johnson changed his mind again and told the district court that he wanted to proceed pro se.  Johnson stated that he felt that his attorney was not doing a good job and was helping the state more than him.  After attempting to explain to Johnson his attorney’s actions, the district court advised Johnson of (1) the nature of the charges against him, (2) the lesser-included offenses, (3) the range of allowable punishments, (4) the allowable defenses, (5) mitigating circumstances, and (6) the advantages and disadvantages of the decision to waive counsel.  Johnson, nevertheless, continued to maintain that he wanted to proceed pro se.  The district court orally placed Johnson’s petition to proceed pro se on the record, ensuring that he understood his rights.  Johnson’s former attorney was present as stand-by counsel, and it is clear from the record that this attorney provided substantial advice to Johnson throughout his trial and sentencing.  We conclude, therefore, that Johnson’s waiver of counsel was knowing, voluntary, and intelligent, and, therefore, valid.

III.

 

            Johnson argues that the district court abused its discretion by prohibiting Johnson from calling Broderick Thomas as a witness because Johnson had not identified Thomas as a witness before trial.  District courts have “broad discretion in imposing sanctions for violations of the discovery rules.”  State v. Patterson, 587 N.W.2d 45, 50 (Minn. 1998).  This court will not reverse such sanctions absent a clear abuse of discretion.  State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).  In exercising this discretion, the district court should consider: “(1) the reason why disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors.”  Id.  The “[p]reclusion of evidence is a severe sanction which should not be lightly invoked.”  Id. at 374. 

            The record shows that before trial the district court explained to Johnson that under rule 9.02 of the Minnesota Rules of Criminal Procedure, if he intended to offer evidence of an alibi, he needed to tell the prosecuting attorney, inter alia, the names and addresses of witnesses whom he intended to call at trial to support his alibi.  The district court asked Johnson whom he was with on the night of the events at issue in the trial, and Johnson responded, “I was with Mr. Kasterdell Thomas, Mr. Demetrius Caine – I mean Demetrius Thomas, Sedrick Guiden.”  Then the district court asked who were the witnesses that Johnson was going to call to support his alibi, and Johnson responded, “Mr. Kasterdell Thomas, Shareka Barnes, Briana Kruchowski.”  All of these names were included on the witness list that the district court read to the jury.  But at the end of the state’s case-in-chief, Johnson told the district court for the first time that he wanted to call Broderick Thomas, who, Johnson stated, was in custody in St. Cloud, to testify on his behalf.

            Because Broderick Thomas was not on Johnson’s witness list, the state objected to Thomas’s appearance as a witness, arguing that it would cause a two-day delay in the trial to issue a writ to bring Thomas to testify; that a delay would prejudice the state’s case because “it distances any defense testimony from state testimony”; and that the state may have examined witnesses differently had it known Thomas would testify.  The district court prohibited Johnson from calling Broderick Thomas to testify because Johnson did not tell the state “sufficiently in advance,” as required by rule 9.02, that he would call Thomas. 

            Johnson argues that it “was clear early in the trial” that Broderick Thomas and Demetrius Thomas, who was included on the witness list, were the same person.  But the record shows that Johnson stated that Broderick and Demetrius were the same person while he was cross-examining the victim during the state’s case-in-chief.  Johnson does not claim that the state knew before the trial that Demetrius and Broderick Thomas were the same person.  Based on this record, we conclude that Johnson did not provide sufficient or timely notice to the state that Johnson intended to call Broderick Thomas as an alibi witness.  See Minn. R. Crim. P. 9.02, subd. 1(3) (providing that defendant shall give the prosecutor the names and addresses of the defendant’s witnesses before the date set for the omnibus hearing).

            Johnson next argues that the district court abused its discretion by prohibiting Thomas from testifying “without considering the Lindsey factors or explaining how those factors justified the extreme remedy of witness preclusion.”  But the record shows that the state did argue to the district court two of the four Lindsey factors: that it would be prejudiced by allowing Thomas to testify and that it would not be feasible for a two-day delay or continuance to rectify the prejudice and in fact a delay would further prejudice the state’s case.  Based on the record, we conclude that the district court did not abuse its discretion by precluding Thomas’s testimony.

            Even if we were to conclude that preclusion of Thomas’s testimony were an abuse of discretion, the error was harmless beyond a reasonable doubt.  See Vance, 254 N.W.2d at 359 (applying harmless-error analysis to testimony that was erroneously admitted into evidence).  An error is harmless beyond a reasonable doubt if “the verdict actually rendered was surely unattributable to the error.”  In re Welfare of M.P.Y., 630 N.W.2d 411, 419 (Minn. 2001).  Johnson argues that Thomas would have testified that he “was not at the house at the time the supposed assault took place or present at the time the shooting took place.”  The state argues that any error was harmless because it was very likely that Thomas would have refused to testify at Johnson’s trial; testimony indicated that Thomas was involved in the kidnapping and attempted murder at issue in Johnson’s trial; and Thomas refused to testify at Johnson’s sentencing trial, exercising his Fifth Amendment privilege.  Johnson responds that at the sentencing trial, the district court “improperly interfered” by “pressuring” Thomas into speaking to a lawyer before deciding whether to testify, and therefore, Thomas’s decision to not testify at the sentencing trial does not show that Thomas would not have testified at the trial on the charges against Johnson had he been given the opportunity.

The record shows that at sentencing the district court was aware that Thomas might have been involved in the events at issue, although he had not yet been charged.  The district court informed Thomas of his right under the Fifth Amendment not to incriminate himself; when asked if he understood the court’s explanation, Thomas responded that he did not understand; the district court continued to explain to Thomas his Fifth Amendment rights.  Although Thomas initially agreed to testify, after hearing the district court’s explanation and being asked again if he understood his rights, Thomas changed his mind and said that he wanted to talk to an attorney first.  After speaking with an attorney during a recess, Thomas refused to testify at the sentencing trial.  Based on the record, it is likely that Thomas would have refused to testify at the trial and even if Thomas had testified to the facts that Johnson claims he would have testified to, the victim’s testimony and other witness testimony still identified Johnson as one of the perpetrators, and, therefore, the verdict would not have been attributable to the erroneous preclusion of Thomas’s testimony at trial.

IV.

            Johnson alleges several instances of prosecutorial misconduct during the state’s closing argument that warrant a new trial.  “Whether the prosecutor acted improperly in his final argument to the jury is largely a matter within the sound discretion of the [district] court.”  State v. Fossen, 282 N.W.2d 496, 503 (Minn. 1979).  An appellate court will reverse a conviction on the ground of prosecutorial misconduct only if the misconduct was “inexcusable and so serious and prejudicial that a defendant’s right to a fair trial [was] denied.”  State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996).  The general rule that a party must object to alleged prosecutorial misconduct or waive the issue does not apply to a criminal defendant appearing pro se.  State v. Reed, 398 N.W.2d 614, 617 (Minn. App. 1986), review denied (Minn. Feb. 13, 1987).  To determine whether a prosecutor’s statements during closing argument are improper, a reviewing court looks to the “closing argument as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence.”  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993). 

            When there is prosecutorial misconduct, this court must determine if such misconduct is harmless.  See State v. Caron, 300 Minn. 123, 127–28, 218 N.W.2d 197, 200 (1974).  There are two distinct standards for determining whether prosecutorial misconduct is harmless error; serious misconduct will be found “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error,” while “[f]or less serious misconduct, the standard is ‘whether the misconduct likely played a substantial part in influencing the jury to convict.’”  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003) (quoting State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000)).

A.        Prosecutor’s Comments Regarding Johnson’s Alibi Defense

            Johnson argues that the prosecutor committed prejudicial misconduct in his closing argument by commenting on Johnson’s failure to call several alibi witnesses and by arguing that Johnson had not established that he could not have committed the offense and thereby shifting the burden of proof to Johnson.  Johnson objects to the following statements of the prosecutor:

I’m going to talk about several other things, arguments defendant may raise, has already raised.  First, defendant has talked about alibi.  He has talked about several different witnesses; some we heard from, several we have not. 

. . . .

 

We have the testimony of Sergeant Resch, who gave you the mileage and the approximate time, going highway speed, of about three and-a-half hours.  I submit to you, ladies and gentlemen, that’s not a solid alibi. 

 

. . . .

 

[A] solid alibi would be somebody who says the defendant was in North Dakota at 8:30 at the time this offense was committed.  

 

. . . .

 

I submit, there is no alibi witness through either live testimony or testimony read into the record that establishes that the defendant could not have committed this offense. 

 

Defendant himself, when asked on cross-examination yesterday, couldn’t even tell us exactly where he was at 10:00 o’clock, 10:15.  He said possibly his mother’s, possibly a friend of his mother’s, but he couldn’t give us an exact location, exact alibi.

 

. . . .

 

I submit that there is no evidence that it’s impossible for the defendant to have been at the scene of the crime, and we don’t know that specific time, either. . . .  There is no evidence that it’s physically impossible, given the alibi evidence that you have heard, for the defendant to be at the scene.

 

A prosecutor may not shift the burden of proof to the defendant by commenting on the defendant’s failure to call witnesses or to present evidence.  Caron, 300 Minn. at 127, 218 N.W.2d at 200.  But a prosecutor is 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.”  State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993).  As long as the argument focuses on or highlights evidence that the state believes makes the defense impossible, the argument is not improper.  State v. Johnson, 616 N.W.2d 720, 730 (Minn. 2000).  Here, the prosecutor’s statements to which Johnson objects, when read in the context of the prosecutor’s argument as a whole, were not comments on the presumption of innocence or the burden of proof; rather, the statements were directed at the lack of evidence supporting Johnson’s alibi defense.  Therefore, the prosecutor’s closing argument did not improperly shift the burden of proof. 

            Even if this court were to conclude that the prosecutor’s statements were misconduct, the misconduct was harmless because there is substantial record evidence that Johnson was a perpetrator of the crimes charged.  See State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999) (declining to consider prosecutorial-misconduct claim when “the substantial evidence against appellant ensure[d] that the alleged misconduct was harmless beyond a reasonable doubt).  And after closing arguments, the district court instructed the jury regarding the presumption of Johnson’s innocence and the state’s burden of proof.  See State v. McDonough, 631 N.W.2d 373, 389 n.2 (Minn. 2001) (“[A] prosecutor’s attempts to shift the burden of proof are often nonprejudicial and harmless where, as here, the district court clearly and thoroughly instructed the jury regarding the burden of proof.”). 

B.        Prosecutor’s Misstatements of Facts

            Johnson argues that the district court committed reversible error by sustaining the prosecutor’s objections to Johnson’s closing argument and overruling Johnson’s objections to the prosecutor’s closing argument.  Johnson claims that the prosecutor, and not Johnson, misstated the facts when the prosecutor told the jury that two witnesses had testified that it was Johnson who had ordered that the victim be taken from the house and put in the trunk of the car.  The state concedes that there was no trial testimony that Johnson instructed others to put the victim in the trunk of the car.  The supreme court has stated that statements made during closing arguments must be “justified by the evidence.”  State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980).  We conclude that the prosecutor’s erroneous statements regarding witness testimony were improper.

            Johnson argues that by erroneously overruling his objections that the prosecutor was misstating testimony and by affirming the prosecutor’s objections that Johnson was misstating testimony, the district court “added an unwarranted stamp of judicial imprimatur to the state’s theory of the case” and “convey[ed] to the jury that the court believed [Johnson], not the prosecutor, had misstated the facts.”  Johnson requests a new trial.

            The state argues that any error is harmless beyond a reasonable doubt and that, therefore, no new trial is required.  The state claims that the district court’s jury instructions “eliminated any ‘stamp of judicial imprimatur [on] the state’s theory of the case.’”  The record shows that the district court instructed the jurors that they were not to concern themselves with the court’s rulings on objections and that the court had not “by any ruling or expression during the trial . . . intended to indicate [the court’s] opinion regarding the facts or the outcome of [the] case.”

The state argues that any error by the prosecutor was corrected by the district court’s instruction to the jury that arguments of counsel are not evidence and that where counsel’s statements differ from the jurors’ own memories, they should disregard counsel’s statements.  The state claims that the prosecutor’s misstatements regarding witness testimony could not have been relied on by the jury to convict because the jury was instructed that the two witnesses were accomplices and, therefore, the jury could not convict Johnson based on their testimony, unless that testimony was corroborated by other evidence.  Finally, the state argues that there is strong evidence establishing Johnson’s guilt of the charge of aiding and abetting kidnapping, including the victim’s testimony that Johnson hit and kicked the victim while she lay bound and confined to a closet, accompanied the group when the victim was transported by car to another site, and prevented the victim’s escape. 

            Because there is strong record evidence that Johnson aided and abetted kidnapping the victim and because of the district court’s instructions to the jury, we conclude that the prosecutor’s statements were harmless misconduct and do not, therefore, warrant a new trial.

V.

 

            Johnson argues that the district court committed reversible error by responding to a jury question with an additional instruction that “misstated the law, diminished the requirement of proof beyond a reasonable doubt, and gave the state’s case an unwarranted stamp of judicial approval.”  A district court may, in its discretion, “give additional instructions in response to a jury’s question on any point of law.”  State v. Murphy, 380 N.W.2d 766, 772 (Minn. 1986) (citing Minn. R. Crim. P. 26.03, subd. 19(3)).  This court will not reverse a district court’s decision to give a particular instruction absent an abuse of discretion.  See State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998).  To establish prima facie evidence of error, an appellant must show that the instruction contained “a material misstatement of law when read in the context of the instructions as a whole.”  State v. Turnipseed, 297 N.W.2d 308, 312 (Minn. 1980).

            The record shows that during its deliberations, the jury asked the district court if it could have a legal definition of “aid and abet.”  Over Johnson’s objection, the district court read the following instruction to the jury in response to its question:

All that is necessary for a conviction of aiding in a crime is that the accused plays at least some knowing role in the commission of the crime and takes no steps to thwart its completion.  A person may be held criminally liable as an aider and abettor without actively participating in the overt act constituting the primary offense.  Criminal intent may be inferred from presence, companionship and conduct before and after the offenses are committed.

 

After trial, Johnson moved for a new trial because of this instruction; the district court denied the motion.  Johnson argues that the instruction is reversible error because the use of the phrase “aider and abettor” could only have further confused the jury, which was already confused by the term “abet.”  Johnson proposes that the district court “simply should have advised the jury the word ‘abet’ was synonymous with ‘aid.’”  But this proposal ignores the fact that the jury asked the court to define both “aid” and “abet.”  Although the district court’s definition used a version of the term that it was attempting to define, we conclude that the definition is not confusing when viewed in its entirety.

            Johnson next argues that the phrase “all that is necessary” diminishes the state’s burden of proof “by suggesting it is a burden easily met and that the jury could convict so long as there was some evidence consistent with [Johnson’s] guilt.”  But the record shows that the district court specifically instructed the jury that the state had the burden of proving Johnson’s guilt beyond a reasonable doubt, and the additional instruction does not contradict the initial instruction on the burden of proof.

Johnson also argues that it is not enough to support his convictions for the state to prove that Johnson played some “knowing role” in the crimes charged.  The state argues that by using the word “role,” the instruction provided that Johnson had to have full knowledge of what was taking place and had to have assumed a part in the commission of the crime, which, the state argues, is an accurate statement of the law.  This court has previously concluded that an “aider and abettor” is one who “play[ed] a knowing role in the commission of the offense and took no steps to thwart its completion.”  State v. Evans, 347 N.W.2d 813, 817 (Minn. App. 1984), review denied (Minn. July 26, 1984). 

Finally, Johnson argues that the portion of the district court’s additional instruction that relates to criminal intent intruded on the jury’s deliberative process by improperly “encourag[ing] the jury to infer the requisite intent from certain facts to the exclusion of others.”  The state argues that this instruction “did no more than state the obvious: [Because] a criminal defendant will rarely, if ever, admit that he possessed the requisite intent, intent must be inferred from objective facts and circumstances.”  The Minnesota Supreme Court has concluded that intent is generally proved “by inferences drawn from a person’s words or actions in light of all the surrounding circumstances.”  State v. Thompson, 544 N.W.2d 8, 11 (Minn. 1996) (analyzing sufficiency-of-the-evidence claim); see also State v. Lundstrom, 285 Minn. 130, 140, 171 N.W.2d 718, 724-25 (1969) (concluding that “intent may be determined from outward manifestations and that it may be inferred that a person intends the natural consequences of his actions”).

            The record shows that the district court took language from State v. Goodridge, 352 N.W.2d 384 (Minn. 1984) and State v. Jones, 347 N.W.2d 796 (Minn. 1984), to formulate its additional instruction for the jury.  Goodridge and Jones address insufficiency-of-the-evidence claims and not the proper wording of jury instructions on aiding and abetting and criminal intent.  352 N.W.2d at 388-89; 347 N.W.2d at 800-01.  The Minnesota Supreme Court has noted that “[o]ther courts have emphasized that tests for sufficiency of evidence to support a conviction should be distinguished conceptually from jury instructions, and that not every sufficiency of evidence test should be read to the jury.”  Turnipseed, 297 N.W.2d at 312.  But there is no Minnesota precedent concluding that the caselaw description of aiding and abetting that was used in the additional instruction here should not be read to a jury.  A district court is given considerable latitude in selecting the language of jury instructions, as long as the instructions do not materially misstate the law.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  Because the district court’s additional instruction contains no misstatement of the law, we conclude that it was not error.

VI.

A.        Inherent Authority

            Johnson argues that his sentences must be reduced to the presumptive terms because the district court had no authority to empanel a sentencing jury to determine whether aggravating factors existed that would support an upward departure from the presumptive sentences.  The day after Johnson was convicted, the United States Supreme Court released its decision Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Under Blakley, any fact supporting an upward departure from the maximum sentence authorized by the jury’s verdict must be submitted to a jury and proved beyond a reasonable doubt.  542 U.S. at 301-03, 124 S. Ct. at 2536-37.  The Blakely rule applies to upward durational departures under the Minnesota Sentencing Guidelines.  State v. Shattuck, 704 N.W.2d 131, 133 (Minn. 2005).  It is undisputed that the district court did not have the authority under the Minnesota Sentencing Guidelines or any statute to empanel a sentencing jury at the time of Johnson’s sentencing, but the parties dispute whether the district court had inherent authority to do so.  Over Johnson’s objection, the district court concluded that it had inherent authority to empanel a sentencing jury.

            In Shattuck, the supreme court examined whether it had inherent authority to authorize the use of sentencing juries and bifurcated-trial proceedings to remedy a Blakely violation.  704 N.W.2d at 147.  The court stated that it had inherent authority, arising from its judicial powers, to regulate court procedure to apply the requirements of Blakely to sentencing in Minnesota.  Id.  But the court observed that it did not have the authority to mandate sentencing-procedure requirements or to “engraft sentencing-jury or bifurcated-trial requirements onto the Sentencing Guidelines.”  Id. at 148.  The court noted, “We have emphasized that while we can strike a severable provision of a law if found to be unconstitutional, ‘we cannot add language to a statute in order to render it constitutionally permissible.’”  Id. at 143 (quoting Chapman v. Comm’r of Revenue, 651 N.W.2d 825, 836 (Minn. 2002)); see also State v. Henderson, 706 N.W.2d 758, 763 (Minn. 2005) (stating that “we declined 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”) (emphasis added).

In an unpublished opinion after Shattuck, this court held that a district court did not exceed its authority by submitting an aggravating sentencing factor to the jury in a bifurcated trial after the jury rendered its verdict on the issue of guilt.  State v. Chauvin, No. A05-726, 2005 WL 2979382, at *5 (Minn. App. Nov. 8, 2005), review granted (Minn. Jan. 17, 2006).  Like appellant here, Chauvin argued that the sentencing-jury proceeding initiated by the district court was not authorized by any rule or statute and that the district court lacked the inherent authority to empanel a sentencing jury.  Id. at *2.  This court rejected that argument, relying on the language in Shattuck that recognizes the court’s authority to establish procedures in conformance with Blakely and noting the absurdity of limiting a district court’s ability to respond to a constitutional holding mandating a particular and familiar procedure—a jury trial—because it was not preauthorized by the legislature.  Id. at *3–*4 (stating that “[i]t would be curious indeed if a court, responding to a constitutional holding mandating a particular procedure, particularly one as familiar as a jury determination of a factual issue, could not implement that procedure until the legislature or a rules committee had cleared the way”). 

Then in State v. Barker, the supreme court held that the mandatory minimum sentence provided by Minn. Stat. § 609.11 for possessing a firearm while committing certain offenses was unconstitutional to the extent that it authorized the district court to impose an upward durational departure upon finding a sentencing factor without the aid of a jury or admission by the defendant.  705 N.W.2d 768, 772-73 (Minn. 2005).  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.  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 under section 609.11, and, therefore, remanded for imposition of the presumptive sentence.  Id. at 776; see also Henderson, 706 N.W.2d at 763.

We recognize that there are differing views on this issue within this court.  Compare State v. Hobbs, 713 N.W.2d 884, 889-90 (Minn. App. 2006) (holding that the district court did not have statutory or inherent authority to submit to a jury the issue of dangerousness to public safety under Minn. Stat. § 609.1095, subd. 2 (2002)), pet. for review filed (Minn. June 12, 2006), and State v. Maddox, No. A05-339, 2006 WL 1460441, at *5-*6 (Minn. App. May 30, 2006) (concluding that the district court had no statutory or inherent authority to submit to a jury the issue of whether appellant’s current offense was part of a pattern of criminal conduct) with State v. Lushenko, 714 N.W.2d 729, 734-36 (Minn. App. 2006) (distinguishing Barker and concluding that Shattuck supports the court’s inherent authority and discretion to craft a bifurcated-trial procedure in the wake of Blakely before the legislature acted), review granted (Minn. July 19, 2006).  We conclude that, under Shattuck, the district court here had the inherent authority to empanel a sentencing jury to determine whether aggravating factors existed that would support an upward departure from the presumptive sentences, in conformance with Blakely.

B.        Double Jeopardy

Johnson also argues that the Double Jeopardy Clauses of the federal and state constitutions prohibit the submission of aggravating factors to a sentencing jury.  This court reviews de novo the constitutional issue of double jeopardy.  State v. Watley, 541 N.W.2d 345, 347 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996).  The Double Jeopardy Clauses protect a criminal defendant against “a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.”  State v. Humes, 581 N.W.2d 317, 320 (Minn. 1998). 

Johnson claims that “facts used to aggravate a sentence above the maximum authorized by the verdict alone . . . are elements of a greater offense.”  Johnson argues that, therefore, the sentencing trial actually constituted a second trial on the same facts for a “‘greater offense’ than [he] was tried for at the first trial.”  But as the state points out, “[Johnson’s] assertion is based upon [his] erroneous assumption that aggravating factors are elements of an offense or the functional equivalents of elements of an offense.” 

The Supreme Court stated in Apprendi v. New Jersey that “when the term ‘sentence enhancement’ is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.”  530 U.S. 466, 494 n.19, 120 S. Ct. 2348, 2365 n.19 (2000).  The state argues that this reference in Apprendi is an analogy used to explain why sentencing-enhancement facts, “like elements of the offense,” must be submitted to a jury and proven beyond a reasonable doubt and that neither Apprendi nor Blakely suggests that double-jeopardy principles preclude the submission of aggravating factors to a sentencing jury.  To further support its position, the state points out that if the Supreme Court opposed a sentencing jury, it “would have directed the imposition of the statutory maximum in Apprendi and the presumptive sentence in Blakely,” rather than remanding for further proceedings consistent with those opinions.  We conclude that aggravating factors are not elements of a greater offense and, therefore, that the submission of such factors to a sentencing jury is not a second trial for a greater offense based on the same facts as the first trial.  Therefore, we find no violation of the Double Jeopardy Clauses.

VII.

 

            Johnson argues that the findings of the sentencing jury are insufficient to support the upward durational departures from the presumptive guidelines sentences for the crimes of which Johnson was convicted.  This court will not reverse a district court’s sentencing decision unless the district court clearly abused its discretion.  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).  A district court has no discretion to depart from the sentencing guidelines unless substantial and compelling aggravating or mitigating factors are present.  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999); Minn. Sent. Guidelines cmt. II.D.03.  When departing from the presumptive guidelines sentence, a district court must disclose in writing or on the record its reasons for doing so.  Minn. Sent. Guidelines II.D.  This court may then examine the record to determine if the reasons given justify the departure.  See Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).  “If the reasons given are improper or inadequate, but there is sufficient evidence in the record to justify departure, the departure will be affirmed.”  Id.

            The district court empanelled a sentencing jury to determine whether the following aggravating factors existed for both of Johnson’s convictions:  that the victim was particularly vulnerable, which was known to the offender; that the victim was treated with particular cruelty for which the individual offender should be held responsible; and that the offender committed the crime as part of a group of three or more persons who all actively participated in the crime.  See Minn. Sent. Guidelines II.D.2.b.(1), (2), (10) (providing that these factors are grounds for departure).  At the end of the seven-day sentencing trial, the district court instructed the jury that it was to determine whether each of the aggravating factors existed during Johnson’s “commission of aiding and abetting attempted first-degree murder and aiding and abetting kidnapping.”  The sentencing jury returned a written verdict form, finding that all three aggravating factors were present, but the verdict form did not refer to either of the crimes for which Johnson was to be sentenced.  The district court sentenced Johnson to 240 months in prison for the conviction of aiding and abetting kidnapping, an upward departure from the presumptive guidelines sentence of 110 months, and to 240 months for the conviction of aiding and abetting attempted first-degree murder, an upward departure from the presumptive guidelines sentence of 180 months, to be served consecutively.  The district court stated that the sentencing departures were “justified by the fact that the victim suffered great bodily harm during the course of the kidnapping, that she was particularly vulnerable, that she was treated with particular cruelty, and that the defendant committed this crime as a part of three or more persons.” 

A.        Separate Findings

            Johnson argues that the district court abused its discretion by “not identify[ing] and separately analyz[ing] each aggravating factor as it related to each offense.”  In State v. Williams, the Minnesota Supreme Court held that a district court must separately identify the aggravating factors supporting each sentencing departure.  608 N.W.2d 837, 841 (Minn. 2000).  There, the district court relied on 15 aggravating factors to justify the upward departures on three sentences.  Id. at 840.  Here, the district court relied on three aggravating factors that the sentencing jury found were present for both crimes of which Johnson was convicted.  Although it would be helpful if in the future such verdict forms include the crimes for which an aggravating factor is found, based on the district court’s instructions to the jury that it was to determine whether each of the aggravating factors existed for both of Johnson’s crimes, we conclude that the jury’s verdict form answered the question that was posed to it:  that each aggravating factor existed for both crimes.  Therefore, unlike Williams, the record supports the conclusion that the jury found that each aggravating factor was present for both offenses. 

The record supports the jury’s finding that the victim was particularly vulnerable during the kidnapping, because she was bound and unable to move, and during the attempted murder, because Johnson had held her down on the car seat to prevent her escape as someone approached to shoot her.  The record supports the jury’s finding that the victim was treated with particular cruelty during the kidnapping, because Johnson repeatedly kicked the victim in the head while she was bound, and during the attempted murder, because the victim was shot twice at close range with a shotgun after Johnson prevented her escape.  And the record shows that more than three persons actively participated in the kidnapping and attempted murder of the victim. 

Johnson also argues that the jury did not identify which aggravating factor related to which offense nor did it identify the specific facts underlying its conclusion that the three aggravating factors existed.  But because the record from the sentencing trial supports the finding of aggravating factors for both offenses, we conclude that the jury did not need to specify which facts supported which aggravating factor.

B.        Sufficient Findings

            Johnson argues that the aggravating factors do not justify departures for both offenses.  First, Johnson argues that victim vulnerability does not support a departure for the attempted-murder offense because the victim, although bound during the kidnapping, had freed herself and was attempting to escape at the time of the shooting and therefore was no longer particularly vulnerable.  And Johnson argues that the record does not support the conclusion that the victim was treated with particular cruelty during the attempted murder because “attempting to kill the victim by shooting her with a shotgun is no more cruel than any other murder attempt.”  We disagree.  As discussed above, the record shows that the victim was vulnerable and treated with particular cruelty by the defendant both during the kidnapping and the attempted murder.

            Johnson also argues that the fact that three or more persons were involved may not be used as an aggravating factor for either crime because he was convicted of aiding and abetting the commission of both crimes, so this fact was already “essential to the general findings of guilt.”  Under Minn. Stat. § 609.05, subd. 1 (2004), “[a] person is criminally liable for a crime committed by another if the person intentionally aids . . . the other to commit the crime.”  Johnson relies on State v. Heath, 685 N.W.2d 48 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004), to support his position.  But in Heath, this court limited its holding to the record before it by stating that “[t]here is no basis in the record to support a conclusion that a three-member conspiracy here was substantially different from a two-member conspiracy under the same circumstances.”  685 N.W.2d at 64.  This case is distinguishable from Heath because the record shows that, here, multiple persons participated in the offenses against the victim and that the number of perpetrators made these offenses, unlike a conspiracy offense, more frightening, more dangerous, and more severe than a kidnapping and attempted murder committed by two persons.

            Finally, Johnson argues that the finding that the “victim suffered great bodily harm during the course of the kidnapping” does not justify departing from the presumptive guidelines sentence for either of Johnson’s convictions of aiding and abetting kidnapping and aiding and abetting attempted first-degree murder.  When the jury convicted Johnson of aiding and abetting kidnapping, it indicated in its verdict that it found that the victim had suffered great bodily harm during the course of the kidnapping.  Such a finding increases the statutory maximum prison sentence for a kidnapping offense from 20 years to 40 years.  Minn. Stat. § 609.25, subd. 2 (2004).  And kidnapping offenses that result in great bodily harm are ranked at a higher severity level than other kidnappings in the sentencing guidelines.  See Minn. Sent. Guidelines V.  The district court erroneously stated at sentencing that “[b]oth departures are justified by the fact that the victim suffered great bodily harm during the course of the kidnapping,” but because any one of the three aggravating factors found by the sentencing jury provides a sufficient basis for the upward departures imposed here, the district court’s error was harmless.

C.        Severe Aggravating Factors

            Johnson argues that the district court was required to find, but did not find, that “severe aggravating factors existed” to support “the greater than double departure for the kidnapping or consecutive sentences.”  Generally, when an upward departure is justified, “the upper limit will be double the presumptive sentence length.”  Williams, 608 N.W.2d at 840 (quotation omitted).  But when severe aggravating factors exist, a departure of up to the statutory maximum sentence and consecutive sentences may be appropriate.  Id.; see also Minn. Stat. § 609.251 (2004) (permitting consecutive sentences to be imposed for multiple offenses committed against the same victim in a single behavioral incident if one of the offenses is kidnapping).  Here, the district court did not identify which factors were “severe” aggravating factors.  But there is sufficient evidence in the record showing that severe aggravating factors were present to justify the district court’s departure by more than double the presumptive guidelines sentence for Johnson’s kidnapping offense and the consecutive sentences. 

            The difference between aggravating and severe aggravating circumstances is “based on our collective, collegial experience in reviewing a large number of criminal appeals.”  State v. Norton, 328 N.W.2d 142, 146 (Minn. 1982).  Here, the record shows that the victim was bound, gagged, and beaten by several individuals; was repeatedly kicked in the head by Johnson; received an implicit death threat from Johnson when he asked where his gun was; was confined to the trunk of her own car; was taken to an alley; and was shot twice with a shotgun at close range and left for dead.  The victim testified that, as a result, she has permanently lost the use of one of her arms and suffers from continuing fear and psychological damage.  We conclude that when viewing all of these aggravating factors together they rise to the level of severe aggravating factors that justify the imposition of a term more than twice the presumptive sentence for the conviction of aiding and abetting kidnapping and justify consecutive sentencing.  See, e.g., State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988) (concluding that gratuitous physical violence, permanent physical injury, and death threats constitute severe aggravating circumstances).

VIII.

 

            Johnson argues that the district court abused its discretion by improperly assigning him a felony point and a custody-status point when neither the sentencing jury nor the district court determined that his Illinois conviction would constitute a felony under Minnesota law or that he was on probation at the time of the kidnapping and attempted-murder offenses.  “The designation of out-of-state convictions as felonies, gross misdemeanors, or misdemeanors shall be governed by the offense definitions and sentences provided in Minnesota law.”  Minn. Sent. Guidelines II.B.5.  A “sentencing court, in its discretion, should make the final determination as to the weight accorded foreign convictions.  In so doing, sentencing courts should consider the nature and definition of the foreign offense, as well as the sentence received by the offender.”  Minn. Sent. Guidelines cmt. II.B.504.  A district court’s determination of a defendant’s criminal-history score will not be reversed absent an abuse of discretion.  State v. Stillday, 646 N.W.2d 557, 561 (Minn. App. 2002), review denied (Minn. Aug. 20, 2002). 

            The record shows that the state told the district court that it had confirmed that Johnson had one Illinois burglary conviction “as an assault” and that it had compared the Illinois felony-burglary statute with the Minnesota felony-burglary statute and had concluded that the statutes were “equivalent.”  The state also informed the district court that it had confirmed that Johnson was on probation for another offense when Illinois issued a warrant for Johnson’s arrest on the burglary charge; that there is still an Illinois warrant for his arrest; and that he was still on probation in Illinois.  The state concluded that, therefore, Johnson “has two points prior to looking at any of the current Minnesota cases, one for the Chicago burglary and one for custody [probation].”  The record shows that the district court reviewed two presentence investigation reports before sentencing Johnson.  A July 16, 2004 presentence investigation report (PSI), prepared by probation officer Bernard Cahill, indicates that Johnson was convicted in Illinois in 1999 for aggravated battery with a weapon and in 2001 for burglary.  The other PSI that the district court referred to consists of a February 15, 2005 memo to the district court from Cahill indicating that since the July 2004 PSI, Johnson’s identity as David Brown, the name under which the Illinois convictions are listed, had been confirmed.

Johnson argues that because the records relied on by the prosecutor are not part of the court file, it is “impossible to determine whether those records . . . would support a finding that [Johnson] had a felony and custody status point.”  The state argues that the assignment of the two criminal-history points is justified because there is no caselaw holding that “a prior conviction can be proven only by certain documents” and that the state met its burden of showing that Johnson had an Illinois conviction and was on probation at the time of the Minnesota offenses. 

            The state has the burden of proving by the preponderance of the evidence “the facts necessary to justify consideration of out-of-state convictions in determining a defendant’s criminal history score.”  State v. Griffin, 336 N.W.2d 519, 525 (Minn. 1983).  The state must establish that the prior out-of-state conviction was valid, the defendant was the person involved, and the crime would constitute a felony in Minnesota.  Id.  According to the Minnesota Supreme Court, Minn. R. Evid. 1005 provides an appropriate evidentiary standard for use in this context:

The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.

 

Id. (quoting Minn. R. Evid. 1005) (emphasis added).  A district court acts within its discretion when it considers an uncertified, but clearly conceded, out-of-state conviction in computing a defendant’s criminal-history score.  See State v. Dixon, 415 N.W.2d 414, 419 (Minn. App. 1987) (affirming sentence after noting that the appellant “does not dispute the fact of conviction, but only the failure to provide better documentation of the conviction”), review denied (Minn. Jan. 20, 1988). 

The record shows that Johnson is inconsistent in his position regarding whether he has any Illinois convictions.  In June 2004, Johnson admitted to the district court that when he was 16 years old he had been convicted of “burglary to a stolen motor vehicle.”  But immediately after this admission, Johnson denied that he was the David Brown who was convicted of burglary in Illinois in 2001, as the state contended.  Therefore, we cannot conclude that Johnson made a Dixon concession.  And the record shows that in July 2004, the district court postponed sentencing because it was still “unaware and not confident of the criminal history of [Johnson].”  There is no evidence in the record of Johnson’s Illinois conviction or probation status; there are only the prosecutor’s statements and the statements in the PSI reports, which, other than referring to “court records” do not identify what specific evidence the probation officer relied on to determine Johnson’s criminal history in Illinois.

Although the state is not required to provide certified copies of a conviction to meet its burden of proof, the state must provide some evidence of an out-of-state conviction.  See Griffin, 336 N.W.2d at 525 (concluding that certified copies of a foreign conviction are not required and noting that the district court relied on other documentation that proved the conviction); State v. Jackson, 358 N.W.2d 681, 683 (Minn. App. 1984) (concluding that probation officer’s in-court advice and testimony based on specific documentation identified in court regarding defendant’s prior convictions was sufficient evidence to prove defendant’s prior conviction in California).  We conclude that the state’s oral representations to the district court regarding the Illinois conviction and probation are not evidence and that the probation officer’s statements in the PSIs are not sufficient evidence when the documents that the probation officer relied on to prepare the PSIs are neither attached nor identified.  The district court, therefore, abused its discretion by assigning Johnson criminal-history points for an unproved Illinois conviction and Illinois probation status.  See State v. Maley, 714 N.W.2d 708, 712 (Minn. App. 2006) (concluding that the state failed to introduce sufficient evidence of out-of-state convictions when none of the evidence presented was admissible under Minn. R. Evid. 1005).  We decline to reach Johnson’s alternative argument that the Illinois conviction would not be a felony in Minnesota, and we reverse in part and remand for the district court to resentence Johnson without consideration of his unproved Illinois conviction and Illinois probation status.           Affirmed in part, reversed in part, and remanded.