This opinion will be unpublished and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

A06-471

 

State of Minnesota,

Respondent,

 

vs.

 

Damon Dechone Halliburton,

Appellant.

 

Filed June 12, 2007

Affirmed

Shumaker, Judge

 

Dakota County District Court

File No. K7-05-643

 

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

 

James C. Backstrom, Dakota County Attorney, Helen R. Brosnahan, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

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

 

 

 

            Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Willis, Judge.

 

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Appellant was found guilty by a jury of car theft, fleeing a peace officer in a motor vehicle, giving a false name to a peace officer, and obstructing legal process, all arising out of a car crash in which the driver, identified as appellant, fled the scene.  The district court imposed an aggravated durational departure in sentencing after the jury found the requisite departure factors beyond a reasonable doubt.  Appellant challenges the sufficiency of the evidence to support the convictions, the propriety of the jury determination of the departure factors, and the court’s evidentiary rulings in the sentencing phase.  Because the evidence was sufficient and the court did not err in sentencing, we affirm.

FACTS

            In March 2002, Officer Leah Reyes-Rambaum was on patrol on I-494 when she saw a Dodge Intrepid speeding on the frontage road.  She observed that the car failed to stop at a stop sign, and then entered the freeway.  When Reyes-Rambaum activated her siren and squad car emergency lights, the vehicle sped away.  During the officer’s pursuit, the Intrepid swerved in and out of traffic and reached a speed of 110 m.p.h., and the officer lost sight of the car.  The vehicle left the freeway and, on the exit ramp, the driver lost control, hit several traffic signs, and the car rolled into a ditch. 

            As Reyes-Rambaum approached the vehicle, she saw the driver leave and jump over a four-foot chain-link fence.  At the time of the incident, she reported that the driver had straight, shoulder length hair, was possibly Asian, and about 5’5” tall, and that he was wearing a black coat.  He ran towards a small business area located at the top of the exit ramp, which contained a gas station, and strip mall with a liquor store, tanning salon, and hair salon.  Knowing that she would not be able to catch the man, Reyes-Rambaum called for backup.  

            Daniel Bosscher, a manager at the tanning salon at the top of the ramp, saw a maroon car crash on the ramp.  He did not see anyone get out of the crashed vehicle, but he could see a larger black man wearing a white shirt coming from the direction of the accident, carrying a navy-blue coat or sweatshirt.  The man went over to the gas station, walking across the parking lot while making strange gestures.  Bosscher called 911 to report what he had seen.

            Dennis Martin, the assistant manager at the gas station, saw a man he later identified as Halliburton running along the business-side of the chain-link fence, just past the front of the bicycle shop.  He could not see the exit ramp, but he said that Halliburton looked confused and upset and was stumbling and carrying a gray coat in his hand.  He saw Halliburton walk back and forth in front of the gas station and talk to a gas-station customer before he entered and left the hair salon.

            Kevin Weglarz, a gas-station customer, heard a woman screaming, followed by the rattling of a chain-link fence.  He saw a 5’9” or 5’10” heavyset man with black hair, wearing a white t-shirt, walk across the parking lot.  He testified that the man acted like his shoulder was injured and attempted to shove his jacket underneath his shirt.  Weglarz saw the man enter the hair salon. 

            Tristan Beckman, a hairstylist at the salon, testified that she saw Halliburton enter the salon.  He was sweating and nervous.  Beckman described Halliburton as an African-American male with longish dark wavy hair that was combed back.  He was not wearing a coat, which Beckman thought odd as it was quite cold out.  Halliburton inquired about hair services and then made an appointment for a couple days later, giving Beckman the name Tony.  After Halliburton left the salon, Beckman saw him walk across to the gas station, where he was arrested.

            Officer Dennis Brom arrived shortly after the crash to assist Reyes-Rambaum.  He went to the parking lot of the gas station and noticed that a state-patrol trooper already had Halliburton in custody.  Halliburton was wearing a white t-shirt, had snow on his shoes, and was breathing heavily and sweating.  Halliburton told Brom he had a cold and that he was in the area to get his hair done at the salon.  Reyes-Rambaum went to the gas station where she was unable to identify Halliburton from the front, but said she recognized him by his hair and coat.  Halliburton originally gave Brom a false name and birth date but later identified himself correctly, and told Brom that he lied because there was a warrant out for his arrest. 

            Brom checked the license plate of the crashed vehicle and discovered it had been stolen.  The vehicle belonged to Michelle McPhillips, who had reported the car stolen three days earlier.  She stated that she had not given anyone permission to use the vehicle and that she did not know or recognize Halliburton.

            A jury found Halliburton guilty of motor-vehicle theft, fleeing a peace officer in a motor vehicle, giving a false name to the police, and obstructing legal process.

After the “guilt phase” of the trial, the court held a “sentencing phase” in which it submitted to the jury departure issues.  Upon the jury’s findings, the court sentenced Halliburton to an aggravated durational departure.  This appeal followed,

D E C I S I O N

Sufficiency of the Evidence

 

            Halliburton first argues that the state relied on circumstantial evidence to link him to the crashed Intrepid and that the state failed to prove beyond a reasonable doubt that he was guilty of fleeing a police officer and of unauthorized use of a motor vehicle.  

            On review of a claim of insufficient evidence to support a conviction, this court must determine whether, “given the facts in the record and any legitimate inferences that can be drawn from those facts, a jury could reasonably find that the defendant was guilty of the charged offense.”  State v. Laine, 715 N.W.2d 425, 430 (Minn. 2006) (quotation omitted).  “We view the evidence in the light most favorable to the verdict.”  Id.  Where the conviction is based on circumstantial evidence, we will affirm “only if the circumstantial evidence forms a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.”  Id. at 430-31 (quotation omitted).  We defer to the jury on the weight and credibility of the evidence, and we “will continue to assume [that] the jury believed the state’s witnesses and disbelieved the defendant’s witnesses.”  Id. at 431 (quotation omitted).

            First, contrary to Halliburton’s assertions that the evidence was entirely circumstantial, Officer Reyes-Rambaum provided direct eyewitness testimony that she saw Halliburton leave the crashed car, jump the fence, and go into the shopping area, and she was later able to identify Halliburton as the driver of the vehicle.  Although there was some inconsistency in this testimony—Reyes-Rambaum described Halliburton as Asian, underestimated his height and build, and said his hair was straight—she was able to identify him from his hair and coat.  Even in cases where testimony is weakened by discrepancies between witness description and actual physical appearance, this court has held that a single witness is sufficient.  State v. Walker, 310 N.W.2d 89, 90-91 (Minn. 1981).  Given Reyes-Rambaum’s testimony alone, a jury could reasonably find that Halliburton was guilty of the charged offense. 

            But substantial circumstantial evidence corroborated Reyes-Rambaum’s testimony.  Several witnesses said that they saw Halliburton approach the shopping area from the direction of the accident.  He was injured, holding a dark coat even though it was cold outside, and was acting strangely.  This testimony established a strong inference that Halliburton had been involved in the accident that was witnessed by several people, and his presence in the shopping area in such close proximity to the crash established a connection between Halliburton and the stolen Intrepid.  Moreover, the aggregate testimony of several other witnesses established that Halliburton was coming from the area of the crash, that he entered the shopping area and was acting suspiciously, thereby substantiating the chain of events directly described by Reyes-Rambaum.  This evidence hinges almost entirely on witness credibility, and Halliburton, by challenging the testimony, is essentially asking us to reweigh credibility, which is improper on appeal.  See State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (stating that “weighing the credibility of witnesses is the exclusive function of the jury”).

            Here, the circumstantial evidence, presented through the testimony of several witnesses, formed a complete chain that, in light of the evidence as a whole, would lead a reasonable jury to conclude that no rational explanation existed other than that Halliburton had crashed the stolen Intrepid and ran into the shopping area to hide from the police officers.  Since the jury is best suited to evaluate circumstantial evidence, especially when such evidence depends on witness credibility, its verdict is deserving of deference.  See State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (stating that “a jury is in the best position to evaluate circumstantial evidence and [] their verdict is entitled to due deference).  Therefore, the record supports the determination that Halliburton was the one who crashed the Intrepid.

            Halliburton also asserts that the evidence is insufficient to support his motor-vehicle theft conviction under Minn. Stat. § 609.52, subd. 2(17) (2004), because there is nothing to support a connection between Halliburton and the vehicle that had been stolen three days prior.  He asserts that the state failed to prove beyond a reasonable doubt that he knew or should have known that the owner of the Intrepid did not give him consent to drive the vehicle.  However, the statute applies not only to the actual taking of motor vehicles, but also penalizes an individual who “drives a motor vehicle without the consent of the owner.”  Id.  Here, Reyes-Rambaum’s testimony established that Halliburton drove the vehicle.  The owner of the vehicle testified that she did not know or recognize Halliburton, and that she did not give anyone permission to use the vehicle.  Since credibility determinations are the province of the jury, and since the jury convicted Halliburton of motor-vehicle theft, the state succeeded in proving the offense beyond a reasonable doubt. 

Inherent Judicial Authority

The court enhanced Halliburton’s sentence by applying the “career offender” provision of Minn. Stat. § 609.1095, subd. 4 (2004).  Halliburton argues that the statute is unconstitutional because it authorizes the district court, not the jury, to determine whether he was qualified as a career offender and the district court had no authority to cure this defect by holding a separate sentencing trial.  Halliburton filed his brief prior to the Minnesota Supreme Court’s decision in State v. Chauvin, which addressed the issue of judicial authority and sentencing juries.  723 N.W.2d 20, 20 (Minn. 2006). The district court in Chauvin submitted to the same jury that had convicted Chauvin the question of whether the aggravating factor of victim vulnerability, as defined in the Minnesota Sentencing Guidelines, was present.  Id. at 23.  This sentencing-related finding of fact was made by the jury after Blakely was decided but before the legislature amended the unconstitutional judicial fact-finding provisions in the sentencing guidelines to comply with Blakely, and before enacting legislation authorizing the use of sentencing juries.  Id. at 23-24. 

The Chauvin court concluded that, because the use of a sentencing jury was necessary to achieve a unique judicial function and did not infringe on equally important legislative or executive functions, the district court not only possessed the inherent judicial authority to impanel a sentencing jury to make findings regarding the aggravating factor of victim vulnerability, id. at 24, but also exercised that authority properly in that the district court’s actions were consistent with subsequent legislative enactments such as Minn. Stat. § 244.10 (2004 & Supp. 2005) (authorizing use of sentencing juries for resentencing hearings).  Chauvin, 723 N.W.2d at 29. 

In State v. Kendell, the state sought an aggravated sentencing departure under the sentencing-enhancement statute codified at Minn. Stat. § 609.1095 (2004).  723 N.W.2d 597, 604 (Minn. 2006).  In its efforts to effectuate the legislature’s intent regarding sentencing enhancements and to protect Kendell’s Sixth Amendment rights, the district court submitted a special interrogatory to the jury regarding the aggravating factors defined in Minn. Stat. § 609.1095.  Id.  As in Chauvin, the district court convened a sentencing jury, even though the legislature had neither amended section 609.1095, to bring the unconstitutional judicial fact-finding provision into compliance with Blakely’s mandate, nor provided guidance as to how a district court should proceed in light of the statute’s constitutional deficiency.  Id. at 610.  The Minnesota Supreme Court did not determine that the statute was unconstitutional, but rather held that the district court had properly exercised its inherent judicial authority by seeking a jury determination, thereby protecting Kendall’s Sixth Amendment rights.  Id.

Therefore, because Minn. Stat. § 609.1095, subd. 4, is not facially unconstitutional, and because the district court exercised its inherent judicial authority to empanel a sentencing jury when Halliburton was sentenced after Blakely, but prior to the 2005 legislative amendments, the district court did not err by convening a sentencing jury which ultimately found that Halliburton qualified as a career offender.

Ex Post Facto Violation

            Halliburton also argues that the district court violated the prohibition against ex post facto laws by convening a sentencing jury without statutory authority, because a departure from the presumptive guidelines sentence based on jury findings is an “increase in punishment” for a criminal act.  The Ex Post Facto Clause of the United States Constitution provides that “[n]o State shall . . . pass any . . . ex post facto Law.” U.S. Const. art. I, § 10.  To fall within the ex post facto prohibition, a law must be retrospective—that is, it must apply to events occurring before its enactment—and it must disadvantage the offender affected by it.”  Lynce v. Mathis, 519 U.S. 433, 441, 117 S. Ct. 891, 896 (1997) (quotations omitted).  

            Halliburton asserts that applying the revised version of Minn. Stat. § 244.10, subd. 5 (Supp. 2005), violated his rights under the United States and Minnesota Constitutions because the only law available for sentencing when he committed the offense was the 2004 version of the career-offender statute.  This exact assertion was addressed in Hankerson v. State, 723 N.W.2d 232 (Minn. 2006).  In this case, the Minnesota Supreme Court determined that the 2005 amendments are retrospective, but concluded that they are not

prohibited as ex post facto laws because they do not work to [a defendant’s] disadvantage. It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law.  The 2005 sentencing amendments inure to [a defendant’s] advantage because they afford [them] a new sentencing hearing where the quantum of the proof will be higher. They vindicate, not violate, [a defendant’s] constitutional rights.

 

Id.at 242 (quotations and citations omitted).  Here, having the question of whether Halliburton was a career offender determined by a jury and not a judge vindicated Halliburton’s constitutional rights.  Since this determination posed no more onerous a sentence than authorized previously when the statute allowed for a judicial determination of aggravating sentencing factors, it does not violate the prohibition against ex post facto laws, and Halliburton’s sentence was authorized by law.

Evidentiary Rulings

            The court increased Halliburton’s sentence under Minn. Stat. § 609.1095, subd. 4, which permits an aggravated departure from the presumptive sentence upon finding (1) that “the offender has five or more prior felony convictions” and (2) “that the present offense is a felony that was committed as part of a pattern of criminal conduct.”

On both factors, the state offered into evidence certified copies of various court records of Halliburton’s prior offenses, including criminal complaints, plea petitions, case-activity summaries, transcripts of plea hearings, and judgments of conviction.  Halliburton objected to the complaints as being hearsay and having no foundation, but stated, “No objection to the documents relating to the convictions.”  The court overruled the objection and received all certified copies.

To satisfy section 609.1095, subdivision 4, there first needs to be evidence of five or more felony convictions.  Id.  The exhibits submitted and received contained either certified copies of judgments of conviction, admissible under Minn. R. Evid. 902(4) as self-authenticating, or certified copies of court transcripts showing Halliburton’s pleas of guilty and the court’s acceptance of those pleas, also admissible under rule 902(4).  Furthermore, an accepted plea of guilty recorded by the court is a conviction.  Minn. Stat. § 609.02, subd. 5(1) (2004).

The admissible evidence shows that Halliburton had nine prior felony convictions, namely financial-transaction fraud; possession of cocaine with intent to distribute; two third-degree burglaries; theft; fifth-degree controlled-substance crime; two motor vehicle thefts; and fleeing a peace officer in a motor vehicle.  Those nine convictions satisfy the first requirement of section 609.1095, subdivision 4.

The criminal code does not provide special definition of “pattern” as required for the second factor, but the Minnesota Supreme Court has held that a pattern of criminal conduct “may be demonstrated by reference to past felony . . . convictions . . . where such acts are similar to the present offense in motive, purpose, results, participants, victims or other characteristics.”  State v. Gorman, 546 N.W.2d 5, 9 (Minn. 1996).  Halliburton’s acts, those that resulted in qualifying convictions, were neither occasional, nor sporadic, nor isolated.  Rather, they were parts of a continuum from 1988 to 2003 that characterized Halliburton as a person disposed to repeatedly engage in criminal conduct.  The evidence of this conduct, shown by the convictions themselves, was sufficient to satisfy the second factor of section 609.1095, subdivision 4.

Although the criminal complaints the court received in evidence were inadmissible hearsay, the admissible evidence was more than ample to satisfy the enhancement requirements.

            Affirmed.