State v. Hagenmiller, A06-589

This opinion will be unpublished and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

A06-589

State of Minnesota,

Respondent,

vs.

Ulysses Adonis Haggenmiller,

Appellant.

Filed July 31, 2007

Affirmed in part and reversed in part

Lansing, Judge

Crow Wing County District Court

File No. KX-05-1311

John Stuart, State Public Defender, Melissa Sheridan, Assistant Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)

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

Donald F. Ryan, Crow Wing County Attorney, 322 Laurel Street, Brainerd, MN 56401 (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Toussaint, Chief Judge; and Lansing, 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 one count of third-degree assault and two counts of fifth-degree assault, Ulysses Haggenmiller challenges the admission of a surveillance video, the instructions provided to the jury, and his sentence. We conclude that the district court’s evidentiary decisions and jury instructions do not provide a basis for reversal and neither do the issues raised in Haggenmiller’s pro se supplemental brief. We agree, however, that one of Haggenmiller’s fifth-degree assault convictions should have merged with his third-degree assault conviction. Accordingly, we affirm in part and reverse in part.

F A C T S

Ulysses Haggenmiller was involved in a fight with two other inmates in a jail dayroom on April 14, 2005. As a result, Haggenmiller was charged with committing third- and fifth-degree assault against Judd Knippel and fifth-degree assault against Douglas Melby.

During the trial, the district court admitted, over Haggenmiller’s objection, a surveillance video of the assaults. The video showed Haggenmiller’s initial fight with Knippel and his subsequent fight with Melby. The video also showed jail guards using a taser against Haggenmiller during the fight with Melby. Although the district court had ordered that the video should end right after the taser incident, the video continued to play for an additional three seconds. The district court instructed the jury to disregard the entire video, and the jury was shown a video stopping at the appropriate time.

At the end of the trial, Haggenmiller indicated that he had no objection to the district court’s proposed jury instructions. The district court then instructed the jury that it should not draw any adverse inference from Haggenmiller’s failure to testify. The district court did not specifically inform the jury that fifth-degree assault is a lesser charge than third-degree assault. And the district court did not give the jury specific instructions about the burden of proof for lesser-included offenses.

The jury found Haggenmiller guilty of all three charges. Haggenmiller was then convicted of and sentenced concurrently for all three offenses. Haggenmiller now appeals.

D E C I S I O N

We review evidentiary rulings to determine whether the district court abused its discretion. State v. McArthur, 730 N.W.2d 44, 51 (Minn. 2007). 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. Even if evidence is relevant, it must be excluded if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Minn. R. Evid. 403. We will reverse only if an evidentiary error likely had a substantial influence on the jury’s verdict. State v. Ferguson, 729 N.W.2d 604, 615 (Minn. App. 2007), review denied (Minn. June 19, 2007).

The district court correctly concluded that the video of a guard using a taser against Haggenmiller was admissible. The guard used the taser while Haggenmiller was assaulting Melby. The video, taken as a whole, was thus directly relevant to the charge that Haggenmiller committed fifth-degree assault against Melby. Although showing the guard using the taser may have been somewhat prejudicial, the district court could reasonably conclude that the probative value of the video was not substantially outweighed by the potential for unfair prejudice. Therefore, the district court did not abuse its discretion when it admitted the video.

Initially, however, the jury was accidentally shown a longer version of the video. The district court had ordered that the video should end after the guard used the taser, but the video apparently continued to play for an additional three seconds. The district court denied Haggenmiller’s motion for a mistrial and instructed the jury to disregard the entire video. The three-second-shorter video was shown to the jury the next day.

We conclude that this incident does not provide a basis for reversal. First, the district court instructed the jurors to disregard the entire video. We presume that jurors follow the court’s instructions. State v. Steward, 645 N.W.2d 115, 122 (Minn. 2002). Second, even if showing the extra three seconds amounted to error, we will reverse based on evidentiary error only if the error would substantially influence the jury’s decision. Ferguson, 729 N.W.2d at 615. During the extra three seconds, the guards are shown removing Haggenmiller from the day room. We see no basis for concluding that this evidence would substantially influence the jury’s decision. Therefore, Haggenmiller is not entitled to a new trial based on the initial showing of the video.

At trial, Haggenmiller indicated that he had no objection to the proposed jury instructions. In general, the failure to object to jury instructions or to propose specific instructions constitutes a waiver of the issue on appeal. State v. White, 684 N.W.2d 500, 508 (Minn. 2004). Under the plain-error doctrine, we can consider such issues if there is (1) error, (2) that is plain, and (3) that affects the defendant’s substantial rights. 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).

We review jury instructions “in their entirety to determine whether they fairly and adequately explain the law of the case.” State v. Peterson, 673 N.W.2d 482, 486 (Minn. 2004). “A jury instruction is erroneous if it materially misstates the law.” State v. Goodloe, 718 N.W.2d 413, 421 (Minn. 2006).

In this appeal, Haggenmiller argues that the jury instructions contained plain error. We agree that the jury instructions amounted to plain error in two ways.

First, when a lesser-included offense instruction is given, the district court must explain which offense is the lesser charge and must give the jury specific instructions on the state’s burden of proof for each charge. State v. Bolte, 530 N.W.2d 191, 199 (Minn. 1995); State v. Thurston, 299 Minn. 30, 35, 216 N.W.2d 267, 270 (1974). The district court did not give these instructions.

Second, the district court—without obtaining the defendant’s consent—instructed the jurors that they “should not draw any inference from the fact that the defendant has not testified in this case.” We note that because Haggenmiller had caused a number of disturbances during the trial, the district court may have been justified in taking more control over the trial. We also note that, by giving the instruction, the district court did not violate Haggenmiller’s federal constitutional rights. See Lakeside v. Oregon, 435 U.S. 333, 340, 98 S. Ct. 1091, 1095 (1978) (holding that giving no-adverse-inference instruction over defendant’s objection did not violate privilege against self-incrimination). But Minnesota law requires the defendant to give his permission on the record before the district court may give a no-adverse-inference instruction. State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002); State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988). Thus, we conclude that, under Darris and Thompson, it was plain error to give the no-adverse-inference instruction without obtaining Haggenmiller’s permission.

Although the district court committed plain error, we must still determine whether the error affected Haggenmiller’s substantial rights. Because Haggenmiller did not object to the jury instructions, we will reverse only if there is a “reasonable likelihood that the [error] had a significant effect on the jury’s verdict.” Darris, 648 N.W.2d at 240. For two reasons we conclude that it did not.

First, although the district court did not explain which offense is the lesser charge and did not give the jury specific instructions on the state’s burden of proof for each charge, the instructions gave the jurors enough information to permit them to correctly evaluate the charges. Haggenmiller was charged with both third- and fifth-degree assault. While third-degree assault requires substantial bodily harm, fifth-degree assault requires only proof of bodily harm. Minn. Stat. §§ 609.223, .224 (2004). Therefore, the jury could easily determine that third-degree assault is more serious and would not require a special instruction to be able to determine which was the lesser charge. Furthermore, the jury instructions adequately explained the law about proof beyond a reasonable doubt. Although no specific instruction about lesser-included offenses was given, the district court gave clear and thorough instructions about each offense. After describing the elements of the first count, the district court instructed the jury:

If you find that each of these elements has been proven beyond a reasonable doubt, the defendant is guilty. If you find that any element has not been proven beyond a reasonable doubt, then the defendant is not guilty.

The district court judge then repeated the same instruction after describing count II and again after describing count III. In addition, the district court gave a general instruction about the requirement of proof beyond a reasonable doubt. The district court also gave the jurors extensive instructions about filling out the verdict forms. This included, for example, instructions that would permit the jury to find Haggenmiller guilty of fifth-degree assault and not guilty of third-degree assault. Therefore, although the jury instructions were technically inadequate under Bolte and Thurston, the instructions otherwise fairly and adequately explained the law. Thus, we cannot conclude that Haggenmiller was prejudiced by the failure to give the required instructions.

Second, the state presented strong evidence against Haggenmiller. Although the state’s case rested, in part, on the credibility of two convicted felons, the video of the assault also strongly supported the state’s version of the events. We agree that the no-adverse-inference instruction “may have had the deleterious effect of emphasizing [the defendant’s] failure to take the witness stand and deny the allegations.” State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000). But even if the instruction did have this effect, the record contains no basis for concluding that there is a reasonable likelihood that giving the instruction had a significant effect on the jury’s verdict.

Therefore, any plain error in the district court’s instructions did not prejudice Haggenmiller’s case. In addition, we note that even if Haggenmiller had been prejudiced, the errors did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. The jury instructions do not provide a basis for reversing Haggenmiller’s convictions.

III

The jury found Haggenmiller guilty of committing both third- and fifth-degree assault against Knippel. At sentencing, the district court only discussed sentences for the third-degree assault against Knippel and fifth-degree assault against Melby. Somehow—perhaps through a clerical error—Haggenmiller was nonetheless convicted and sentenced for both the third- and fifth-degree assaults against Knippel. Haggenmiller and the state agree that he was incorrectly convicted and sentenced for fifth-degree assault against Knippel. We also agree.

Under Minn. Stat. § 609.04, subd. 1(1) (2004), a defendant cannot be convicted of both a crime and a lesser-degree of that same crime. Fifth-degree assault is a lesser-included offense of third-degree assault. See State v. Griffin, 518 N.W.2d 1, 3 (Minn. 1994) (concluding that fifth-degree assault is lesser-included offense of first-degree assault). Therefore, Haggenmiller’s conviction and sentence for fifth-degree assault against Knippel are reversed.

In his pro se supplemental brief, Haggenmiller makes an argument that is best interpreted as a challenge to the sufficiency of the evidence. A challenge to the sufficiency of the evidence requires “a very thorough analysis of the record” to determine whether the evidence was sufficient to permit the verdict. State v. Spann, 574 N.W.2d 47, 54 (Minn. 1998). The reviewing court assumes that the fact-finder believed the state’s witnesses and rejected any contrary evidence. State v. Jackson, 726 N.W.2d 454, 460 (Minn. 2007). A jury’s credibility determinations are given particular deference. State v. Bliss, 457 N.W.2d 385, 390-91 (Minn. 1990).

Haggenmiller’s argument is essentially that the testimony of the victims was not credible. The jury, however, could have concluded that the testimony was credible and therefore could have based its verdict on the testimony of Melby and Knippel. This testimony—along with the surveillance video—provided sufficient evidence to support the verdicts.

In addition, Haggenmiller argues in his pro se supplemental brief that he was denied his right to a speedy trial. On August 1, 2005, Haggenmiller demanded a speedy trial. The trial, however, was not held until four months later.

In reviewing a claim that a defendant was denied his right to a speedy trial, courts consider (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) whether the delay prejudiced the defendant. State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999). Haggenmiller clearly asserted his right to a speedy trial. The record does not indicate the reason for the delay. The four-month delay was not unduly lengthy. Furthermore, there is no evidence that Haggenmiller was prejudiced by the delay. When a defendant is already incarcerated, the prejudice inquiry turns on whether the delay impaired the defendant’s defense. Id.at 318-19. The evidence at trial was relatively straightforward. Thus, we can find no likelihood that Haggenmiller’s defense was prejudiced in any way. In light of the relatively short delay and the lack of prejudice, Haggenmiller was not denied his right to a speedy trial.

Affirmed in part and reversed in part.