STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2134

State of Minnesota,
Respondent,

vs.

Randal Charles Meyer,
Appellant.

Filed September 26, 2006

Affirmed

Minge, Judge

Benton County District Court

File No. K9-03-152

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1400 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Robert Raupp, Benton County Attorney, Courts Facility Building, 615 Highway 23, P.O. Box 189, Foley, MN 56329 (for respondent)

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

Considered and decided by Klaphake, Presiding Judge; Lansing, Judge; and Minge, Judge.

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

MINGE, Judge

Appellant challenges the district court’s imposition of a consecutive sentence based on his conviction for tampering with a witness. Because the district court did not err in determining that appellant’s offense, as committed, was a crime against a person, and because this determination did not violate appellant’s Sixth Amendment rights, we affirm.

FACTS

Appellant Randal Meyer was charged with first-degree burglary for unlawfully entering the home of his ex-girlfriend and physically assaulting her. Ultimately he was convicted on these charges and received a sentence of 68 months.

Two days before the scheduled trial, Lieutenant Susan Johnson, administrator of the Benton County jail, reported that she found an envelope in the outgoing mail addressed to the home of appellant’s parents. Appellant’s mail was being opened pursuant to a jail policy that the mail of any inmate subject to an order for protection be reviewed. In appellant’s case, the order required that appellant have no contact with his ex-girlfriend, the alleged victim in appellant’s upcoming burglary trial.

Johnson reported that she opened the sealed, stamped envelope and found a Christmas card signed by appellant and a handwritten letter with the salutation “Mom & Dad.” The letter begins by informing appellant’s parents of the jail’s visiting policy. The letter expresses appellant’s anger that his ex-girlfriend has started seeing another man and describes his efforts to threaten his ex-girlfriend:

She’s been told to drop the O.F.P., not testify, get rid of her boyfriend, and put everything, the apt, phone, bank, everything, back how it was. Let’s just say if she doesn’t do it, I won’t be the only one who lost everything they cared about. Things have already been arranged, if she doesn’t come see me Thursday night and have all those things done, it will be out of my hands. I have to do nothing, and it doesn’t matter if I’m locked up or not. The only way to stop the people out there is for me to call them, and I won’t, unless I hear from Kim.

To conclude, appellant states that he plans to commit suicide if he cannot be with his ex-girlfriend, and then states, “I hope you’ll help convince her.” Appellant admits to writing the letter, but asserts that he did not put the letter into the outgoing mail and that he wrote it solely for the purpose of “blowing off steam.”

Appellant was charged with first-degree tampering with a witness, in violation of Minn. Stat. § 609.498, subd. 1(a) (2002), convicted, and was sentenced to 18 months to be served consecutively to his 68-month burglary sentence. This court reversed the witness-tampering conviction and remanded for a new trial on the grounds that appellant had not personally waived his right to a jury trial on that charge. State v. Meyer, No. A03-1860, 2004 WL 2049964, at *1 (Minn. App. Sept. 14, 2004), review denied (Minn. Nov. 23, 2004). After a new trial, a jury found appellant guilty of first-degree tampering with a witness, and he was again sentenced to 18 months to be served consecutively to his 68-month burglary sentence. This appeal follows.

D E C I S I O N

The first issue in this case is whether the district court erred in determining that appellant’s offense of tampering with a witness was a crime against a person. Under the sentencing guidelines in effect at the time of appellant’s offense, a district court had the discretion to sentence a defendant consecutively if the defendant had a prior felony sentence for a crime against a person that had not expired or been discharged and one or more of the current felony convictions is for a crime against a person. Minn. Sent. Guidelines II.F.1 (2002). Whether an offense is a crime against a person for purposes of consecutive sentencing is a question of law which this court reviews de novo. State v. Myers, 627 N.W.2d 58, 62 (Minn. 2001).

The sentencing guidelines do not define a “crime against a person,” but caselaw indicates that the inquiry involves the underlying conduct, not the label assigned to the crime. State v. Rannow, 703 N.W.2d 575, 578 (Minn. App. 2005) (holding that violations of a restraining order by repeatedly calling the victim constituted crimes against a person). In Myers, the Minnesota Supreme Court considered the offense of obstructing legal process, committed by attacking a police officer while being transported in a police vehicle. 627 N.W.2d at 60. The court stated that “obstructing legal process, while not classified or labeled as a crime against a person, may be a crime against a person if the defendant’s underlying conduct in committing the crime poses a special danger to human life.” Id. at 62-63; see State v. Notch, 446 N.W.2d 383, 384-85 (Minn. 1989) (holding that burglary, while typically considered a property crime, was a crime against a person when the appellant brandished a knife after he unlawfully entered the victim’s residence).

A person unlawfully tampers with a witness if he “intentionally prevents or dissuades or intentionally attempts to prevent or dissuade by means of force or threats of injury to any person or property, a person who is or may become a witness from attending or testifying at any trial, proceeding or inquiry authorized by law.” Minn. Stat. § 609.498, subd. 1(a) (2002). Here, appellant wrote a letter alluding to an arrangement to harm his ex-girlfriend, who was to be a witness at his upcoming trial, unless she dropped all charges and complied with other demands. Although the letter was directed to appellant’s parents, it asked them to “help convince” the ex-girlfriend to accede to his demands. The letter strongly implies that appellant had prearranged for an unidentified person to harm his ex-girlfriend and that unless appellant stopped that person, the plan would go forward.

Appellant contends that his offense cannot be a crime against a person because the letter was never delivered and thus his ex-girlfriend was not aware of the threats. Appellant presents no legal basis for his argument that the victim must be aware of the offense for it to constitute a crime against a person. The more appropriate focus in determining whether an offense is a crime against the person is the nature of the defendant’s conduct. There was evidence that the objective of his letter was to cause the victim to fear for her safety if she testified. Based on appellant’s conduct, we affirm the district court’s finding that appellant’s offense of tampering with a witness, as committed, was a crime against a person.

II.

The second issue is whether appellant’s Sixth Amendment rights were violated. Appellant contends that his sentence violates his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536 (2004), because the determination of whether his offense was a crime against a person was made by a judge, not a jury. In Blakely, the United States Supreme Court reaffirmed the rule that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000)). This court reviews the constitutional issue presented by the application of Blakely de novo. State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).

In State v. Senske, this court addressed the application of Blakely to consecutive-sentencing determinations. 692 N.W.2d 743, 746 (Minn. App. 2005), review denied (Minn. May 17, 2005). Senske argued that the district court’s determination that his offenses were crimes against a person was a violation of his right to a jury trial under Blakely. Id. This court held that “Blakely does not apply to permissive consecutive sentencing based on a finding that the offenses are crimes against persons.” Id. at 748-49 (quotation marks omitted). We acknowledged that Blakely “requires that the jury determine all facts legally essential to the punishment,” but noted that the “punishment” in consecutive sentencing involves two separate sentences. Id. (quotations omitted). Under Senske, characterizing the nature of the crime for the purpose of determining appellant’s sentence did not violate his Sixth Amendment rights. See id. at 749.

Appellant argues that the Senske court never squarely addressed whether the district court may make the determination of whether an offense is eligible for permissive consecutive sentencing because in that case the appellant’s offense of first-degree criminal sexual conduct was clearly a crime against a person. See id. at 745. But nothing in the Senske opinion or our subsequent application of Senske in Rannow indicates that this court intended to limit its holding to offenses that are “obviously” crimes against a person. See Rannow, 703 N.W.2d at 580-81; Senske, 692 N.W.2d at 746-49. We conclude that appellant’s Sixth Amendment rights were not violated.

III.

The third issue is whether appellant’s arguments in his pro se supplemental brief warrant reversal. Appellant first argues that the evidence does not support his conviction because he claims that the jailer removed the draft letter from his cell and that he never attempted to mail the letter. Testimony at trial indicated that jail staff found appellant’s letter in an outgoing mail bin on December 17 and that the typical way in which a letter reaches that bin is for an inmate to bring it to jail staff, who then delivers it to the bin. Although there was testimony that jail staff removed a note from appellant’s cell during a search on December 18, testimony indicates that this was not the letter that led to appellant’s conviction. Taken in the light most favorable to the conviction, the evidence is sufficient to allow the jurors to reach the verdict that they did. See State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

Appellant also argues that he was improperly charged in retaliation for his complaints about the Benton County jail to government officials. The appellant has the burden of proving actual prosecutorial vindictiveness. State v. Pettee, 538 N.W.2d 126, 133 (Minn. 1995). Appellant here has not met this burden. Appellant’s challenge to the district court’s jury instructions on the elements of his offense and the standard of proof beyond a reasonable doubt also fails because appellant does not identify, and we do not find, any deficiencies.

Affirmed.