This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2372

 

 

State of Minnesota,

Respondent,

 

vs.

 

Michael Antwan Spann,

Appellant.

 

 

Filed April 3, 2007

Affirmed

Lansing, Judge

 

Ramsey County District Court

File No. K9-05-001506

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102  (for respondent)

 

John Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414  (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In this appeal from conviction and sentencing for simple robbery, Michael Spann challenges the admissibility of evidence not objected to at trial and also challenges the order for restitution to the owner of the stolen car. Because the district court did not abuse its discretion in ordering restitution and the inadmissible evidence does not constitute plain error, we affirm.

F A C T S

            Michael Spann approached a man in the parking lot of an East St. Paul restaurant in the morning of April 16, 2005.  Spann shoved the man, grabbed his keys, and then drove off in the man’s 1994 Oldsmobile Achieva.  Six days later, the police stopped the car and arrested Spann, who was driving the car.  The car owner identified Spann as the man who had stolen his car.

            At trial, the car owner was reluctant to testify and had to be subpoenaed.  The prosecutor asked the car owner why he was uncomfortable testifying and why he had to be subpoenaed.  Through an interpreter, the car owner said:

Because I have my family with me.  I have my girlfriend with me, too.  And I think when you come in front of and accuse a person, I don’t think that person is going to feel happy about it.  And I’m scared that something might happen to my family.  That’s what I worry about.

 

The defense did not object.

            Later in the trial, a police officer’s testimony disclosed to the jury that Spann was a suspect in another robbery.  Apparently, Spann had been stopped because police had information that the stolen car he was driving had been involved in the other robbery.  As part of a long answer, the officer stated, “I was informed by another investigator . . . that they had two individuals in custody for another robbery.”  He went on to say that he asked the car owner to “review a couple of photo line-ups because we had arrested somebody for another robbery . . . in his vehicle.”  At another point, the officer said, “I explained to him that that was one of the individuals that we did have in custody who was actually driving the vehicle of another robbery.”  Spann did not object to these statements.

            The jury found Spann guilty of simple robbery.  During sentencing, the district court addressed the issue of restitution.  After the car had been recovered, the police department refused to return it to the car owner, apparently because the car owner did not have insurance.  The police department eventually sold the car at an auction and kept the money it received.  The district court said, “As far as restitution is concerned . . . I’m not going to order that you pay the full purchase price on the car, Mr. Spann.  I just don’t think it’s fair.”  The district court then ordered Spann to pay $500 in restitution.  Spann now appeals his conviction and the restitution order.

D E C I S I O N

I

            In general, the failure to object to the admission of evidence constitutes a waiver of the issue on appeal.  State v. Vick, 632 N.W.2d 676, 684 (Minn. 2001).  Under the plain-error doctrine, however, we will review error that is plain and affects the defendant’s substantial rights.  Id.at 685 (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)).  An error is plain if it is clear or obvious under current law.  Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997).  An error is clear or obvious if it “contravenes case law, a rule, or a standard of conduct.”  State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).  If the plain-error standard is satisfied, we correct the error “only if it seriously affects the fairness, integrity or public reputation of judicial proceedings.”  State v. Washington, 693 N.W.2d 195, 204 (Minn. 2005) (quotation omitted).

            Evidence of other crimes committed by the defendant is considered Spreigl evidence.  See State v. Spreigl, 272 Minn. 488, 496-97, 139 N.W.2d 167, 173 (1965) (providing procedures for introduction of other-crimes evidence).  Therefore, evidence about the other robbery committed by Spann was Spreigl evidence.  To admit Spreigl evidence at trial, the state must satisfy a number of conditions, including giving notice of its intent to introduce the evidence.  State v. Ness, 707 N.W.2d 676, 685-86 (Minn. 2006).  Because the state did not satisfy the necessary conditions, it was improper for the police officer to refer to Spann’s other possible crimes. 

            Nonetheless, a district court’s “failure to sua sponte strike unnoticed Spreigl evidence or provide a cautionary instruction is not ordinarily plain error.”  Vick, 632 N.W.2d at 685.  Because the district court did not know that the evidence would be admitted, it is inappropriate to ask whether the court should have admitted the evidence in the first place.  Id. Once the officer made the comments, the district court’s response was constrained because the defendant’s failure to object may have been part of counsel’s attempt, reflected in other parts of the record, to show that his client had been set up by the police.  The Minnesota Supreme Court recently noted:  “We do not agree that the district court must, or even should, interfere with the trial strategy of the defendant.  To act sua sponte here would risk highlighting or enforcing rights that the defendant had, for tactical reasons, decided to waive.”  Washington, 693 N.W.2d at 205.  Because the circumstances are comparable, we are unable to conclude that the introduction of the Spreigl evidence was plain error.

            We also reject Spann’s argument that it was plain error to allow evidence about the car owner’s fear of testifying and the necessity of a subpoena.  We conclude, initially, that the evidence about the subpoena and the car owner’s reluctance to testify was relevant.  Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Minn. R. Evid. 401.  If an objection had been made, the district court could reasonably have concluded that the witness’s reluctance to testify tended to give more or less weight to his statements and could help the jury evaluate the witness’s demeanor.  Therefore, the car owner’s explanation can be part of a chain of inferences relevant to a determination of the ultimate facts at issue.  “The fact to be established need not be an ultimate fact or a vital fact.”  Minn. R. Evid. 401 1977 comm. cmt. 

            Spann correctly points to cases indicating that it can be unduly prejudicial to admit testimony about a witness’s fear.  State v. Clifton, 701 N.W.2d 793, 797 (Minn. 2005); State v. Harris, 521 N.W.2d 348, 351-53 (Minn. 1994).  But we conclude that Clifton and Harris are distinguishable because the evidence in those cases involved actual threats.  Unlike the actual-threat evidence in Cliftonand Harris, the car owner described only his general fear of testifying and the reasons that he gave would apply in any case.  The testimony was about the car owner’s general concern, not the defendant’s specific act.  Thus, it was not plain error to admit the car owner’s statement. 

II

            Spann contends that the order for restitution should be reversed because the police department’s decision to sell the car was a superseding cause of the car owner’s loss.  The state agrees that the record does not support the restitution order but bases its concession on insufficient evidence.

            The state concedes that the restitution order should be vacated because the car owner did not submit an affidavit establishing his loss, and the district court did not make specific findings to support the amount ordered.  The car owner’s affidavit, however, is part of the formal notice of restitution that is contained in the record.  Furthermore, the state has cited no authority for its claim that the district court was required to make specific findings, and the state’s claim has no basis in the text of the restitution statute.         The state’s concession, therefore, appears to be based on a limited view of the record and we decline to be bound by it.  See State v. Warren, 419 N.W.2d 795, 799 (Minn. 1988) (pointing out that appellate court is not bound by state’s concession of insufficient contents of record and should not ignore what is in plain sight). 

            A district court has significant discretion in ordering restitution.  State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999).  We review a restitution order for an abuse of discretion.  Id.at 672.  The arguments about the restitution statute in this case, however, involve questions of law, which we review de novo.  State v. Latimer, 604 N.W.2d 103, 104-05 (Minn. App. 1999).

            In previous cases, we have indicated that restitution “is only proper when the victim’s losses are ‘directly caused’ by the conduct for which the defendant was convicted.”  Id. at 105 (quoting State v. Olson, 381 N.W.2d 899, 901 (Minn. App. 1986)).  The supreme court, however, recently declined to adopt a “but for” or cause-in-fact test for causation.  State v. Palubicki, 727 N.W.2d 662, 667 (Minn. 2007).  Instead, the court recognized that “the potential exists for a restitution claim to become so attenuated in its cause that it cannot be said to result from the defendant’s criminal act.”  Id.

            In this case the car owner’s losses are not so attenuated.  Spann argues that the police department’s decision to auction the car was a superseding cause of the owner’s loss.  But the police department only had possession of the car because of Spann’s robbery.  If the owner had been able to afford insurance, he apparently could have recovered his car.  Spann cannot avoid the consequences of his actions because of the owner’s indigency.  When a car is stolen, it is reasonably foreseeable that the owner may not recover the vehicle.  Thus, the owner’s loss was directly caused by Spann’s acts.  Furthermore, the district court recognized that a portion of the car owner’s losses may not have been caused by Spann and ordered only partial restitution.

Although the car owner in this case might still recover money from the police department, an “actual or prospective civil action . . . shall not be used by the court as a basis to deny a victim’s right to obtain court-ordered restitution.”  Minn. Stat. § 611A.04, subd. 1(a) (2004).  Therefore, we can find no basis for concluding that the district court abused its discretion.

            Affirmed.