This opinion will be unpublished and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

A05-1073

 

 

Laura Hansen, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed November 14, 2006

Affirmed
Crippen, Judge*

 

Hennepin County District Court

File No. 04059306

 

 

Laura Hansen, 14222 Bellevue Drive, Minnetonka, MN 55345 (pro se appellant)

 

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

 

Desyl L. Peterson, Minnetonka City Attorney, Rolf A. Sponheim, Assistant City Attorney, 14600 Minnetonka Boulevard, Minnetonka, MN 55345 (for respondent)

 

            Considered and decided by Dietzen, Presiding Judge, Hudson, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant Laura Hansen challenges her conviction of harassment in violation of a Minnetonka, Minnesota, ordinance, claiming that the district court did not properly weigh the indicia of appellant’s alleged incompetence to stand trial, abused its discretion when it did not appoint an interpreter, and wrongfully admitted Spreigl evidence when the state allegedly made an untimely notice.  Appellant also alleges several other errors in the conduct of her trial. Finding nothing in the record to suggest the court accorded too little weight to indicia of appellant’s incompetence and finding no merit to her remaining arguments, we affirm.

FACTS

Appellant was charged with five counts of harassment, public indecency, and disorderly conduct arising out of an alleged mooning of her eight-year-old neighbor.[1]  Appellant was ultimately convicted of only the harassment charge under the ordinance and was sentenced to 45 days’ imprisonment, with 43 days stayed.

D E C I S I O N

1.

            Appellant argues that the district court erred when it denied her defense counsel’s motion for a competency examination.  Generally, the district court’s findings of fact are accorded great deference, and we will not disturb the findings unless they are clearly erroneous.  Minn. R. Civ. P. 52.01.  But when the evidence is undisputed and the district court denies a motion for a competency hearing, we review the record as a whole to determine whether the court gave the “proper weight” to the indicia of incompetence.  State v. Camacho, 561 N.W.2d 160, 174 (Minn. 1997).

A defendant’s competence to stand trial is governed by Minn. R. Crim. P. 20.01. Under the rule, if, on a motion from the prosecutor or the defense counsel or on the court’s own initiative, the district court determines that there is a “reason to doubt” the defendant’s competency, the court must dismiss the case, cause civil commitment proceedings to be brought against the defendant, or appoint a medical examiner to conduct a competency examination.  Id., subd. 2. When determining whether there is a reason to doubt a defendant’s competence, the United States Supreme Court has counseled that courts should consider the defendant’s irrationality, demeanor at trial, and any prior medical opinions on the defendant’s competence, while recognizing that any one factor, standing alone, may raise sufficient doubt.  Drope v. Missouri, 420 U.S. 162, 180 (1975).  The inquiry is necessarily ad hoc, as there are “no fixed or immutable signs which invariably indicate the need for further inquiry.”  Id.; State v. Bauer, 310 Minn. 103, 116, 245 N.W.2d 848, 855 (1976) (quoting Drope, 420 U.S. at 180).

            The record shows that the district court engaged in an extensive colloquy with appellant, in which she admitted that she understood the allegations against her.  In addition to this discussion, the district court reviewed a November 2003 competency evaluation of appellant.  A prior finding of competency, when combined with the defendant’s rationality and appropriate demeanor at trial, can be evidence that there is no reason to doubt the defendant’s competence.  Bauer, 310 Minn. at 118, 245 N.W.2d at 856.  Given the record of these circumstances, we conclude that the court gave the proper weight to any indicia of incompetence and did not err when it denied appellant’s counsel’s motion for a competency hearing.

2.

            Appellant next argues that the district court erred by not appointing a qualified interpreter.  The decision whether to appoint an interpreter is committed to the sound discretion of the district court.  State v. Cham, 680 N.W.2d 121, 126 (Minn. App. 2004), review denied (Minn. July 20, 2004).  Minnesota law provides for an interpreter if a person is handicapped in communication.  Minn. Stat. § 611.32 (2004).  A person is handicapped in communication if, because she has difficulty hearing speech, has some other communication disorder, or has difficulty speaking or comprehending English, she cannot fully understand the proceeding or is incapable of participating in her defense.  Minn. Stat. § 611.31 (2004).

            The district court did not abuse its discretion when it denied appellant’s motion for an interpreter.  The record reflects that, during the colloquy with the court, appellant stated that she had started learning to read and write English in the 7th grade, and began speaking English when she arrived in this country in 1974, when she was approximately 25.  Appellant stated that she could “get by” during “[d]aily conversation.”  Based on this information, the district court was within its discretion when it denied appellant’s motion for an interpreter.

3.

Appellant argues that the district court erred in admitting Spreigl evidence, arguing that Spreigl evidence may not be admitted if appellant does not take the stand, that admitting Spreigl evidence violates appellant’s right not to be exposed to double jeopardy when charges arising from the prior incidents had been dismissed, and that, in any case, admitting Spreigl evidence was improper because the state was allegedly late in notifying appellant of its intent to introduce Spreigl evidence.

Evidentiary rulings are committed to the sound discretion of the district court and will not be overturned on appeal absent an abuse of discretion.  State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988).  To prevail on appeal, appellant must demonstrate both an error in admitting the evidence and prejudice arising from that error.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).  To determine if an error was prejudicial, the reviewing court determines whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  If there is a reasonable possibility that the verdict would have been more favorable to the defendant absent the challenged evidence, then the error is prejudicial.  Id.

            The district court did not abuse its discretion when it admitted the two prior incidents.  Contrary to appellant’s argument, there is no requirement that appellant take the stand before Spreigl evidence may be admitted.  See Minn. R. Evid. 404(b) (noting that prior bad acts evidence is admissible provided that the “relevant person[’s]” participation is established by clear and convincing evidence).  And the Supreme Court has held that the introduction of prior misconduct evidence does not offend the double jeopardy clause.  United States v. Felix, 503 U.S. 378, 387 (1992); see Dowling v. United States, 493 U.S. 342, 354 (1990) (permitting the introduction of evidence of a crime the defendant was acquitted of on the basis that the rules of evidence imposed a lower burden of proof).

            Finally, appellant’s argument that the state gave late notice of its intent to introduce Spreigl evidence is not properly before this court.  Generally, a reviewing court does not consider matters not argued or considered in the court below.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Appellant does not point to and the record does not disclose any indication that she objected to Spreigl evidence on the ground that proper notice was not given.  And assuming the state’s notice was late, the two prior incidents that the district court admitted were detailed in the complaint, giving appellant proper notice.  State v. Gould, 399 N.W.2d 668, 670 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987).

4.

            Appellant alleges several other errors in the conduct of her trial. 

Appellant argues that the district court erred when it refused to honor her notice to remove the judge presiding over her case.  Even assuming appellant’s notice to remove was correctly filed, her proper remedy was to seek a writ of prohibition from this court.  McClelland v. Pierce, 376 N.W.2d 217, 219 (Minn. 1985); State v. Cermak, 350 N.W.2d 328, 331 (Minn. 1984).  Thus, this issue is improper, and we are not at liberty to consider it.

            Appellant contends that the district court had no authority to order a preliminary sentence investigation for a misdemeanor offense.  Even assuming appellant’s claim is properly before this court and is not moot, appellant is mistaken:  a PSI is expressly authorized by statute for a misdemeanor conviction.  Minn. Stat. § 609.115, subd. 1(a) (2004).

            Appellant challenges the district court’s decision to execute the three-day commitment portion of her sentence immediately, arguing that the court was improperly swayed by the victim-impact statement and the district court’s frustration with appellant’s insistence on exercising her Fifth Amendment rights.  As a threshold matter, this issue is improper:  a sentence determined on a misdemeanor conviction is not appealable as a matter of right.  To bring an appeal, appellant must seek leave of this court within 30 days after sentencing.  Minn. R. Crim. P. 28.02, subds. 2(3), 3.  And because appellant has already served her three-day-executed sentence, her appeal is moot.  See Matter of Schmidt, 443 N.W.2d 824, 826 (Minn. 1989) (holding that if an appellate court cannot grant effectual relief, the issue is deemed moot).

            We also note that the sentence announced by the district court was not an abuse of discretion.  For convictions not within the sentencing guidelines, if the defendant was heard and the district court considered the relevant factors, any sentence within the legislatively prescribed boundaries is within the district court’s discretion. State v. Hanson, 304 Minn. 415, 415-16, 231 N.W.2d 104, 105 (1975); State v. Kier, 678 N.W.2d 672, 677 (Minn. App. 2004).  Similarly, probation conditions are within the court’s discretion if the conditions are reasonably related to the sentence and not unduly restrictive.  State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989).  The sentence imposed in this matter was within the legislative boundaries for a misdemeanor conviction, and the probation conditions are reasonably related to the sentence.

            Appellant argues that the city ordinance under which she was convicted is unconstitutionally vague.  But appellant did not challenge the constitutionality of the statute in the district court and, as such, her claim is waived.  State v. Schleicher, 672 N.W.2d 550, 555 (Minn. 2003) (holding that a vagueness challenge must be brought before the district court before it may be reviewed on appeal).

            Appellant appears to argue that the victim’s mother intimidated the victim into testifying against appellant falsely.  This argument constitutes a challenge to the victim’s credibility, and credibility determinations are not reviewed on appeal but are solely the province of the jury.  State v. Reese, 692 N.W.2d 736, 741 (Minn. 2005) (noting that “assessment of witness credibility is a jury function”).

Finally, appellant argues that the prosecutor committed misconduct by charging her, arguing that the prosecutor had no legal basis for charges stated and “concocted” additional offenses on the day of trial (an evident reference to the Spreigl evidence).  But the prosecutor has broad charging authority.  State v. Johnson, 514 N.W.2d 551, 556 (Minn. 1994).  Prosecutors are accorded great latitude on whether to seek charges and what charges to seek, and a prosecutor’s charging decision is generally not subject to judicial review unless the prosecutor seeks to bring charges on an impermissible ground, such as race, religion, or sex.  State v. Herme, 298 N.W.2d 454, 455 (Minn. 1980).  Appellant introduced no evidence that would tend to support her argument that the prosecutor acted with an impermissible motive.

            Affirmed.