This opinion will be unpublished and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

A06-2362

 

State of Minnesota,
Appellant,

vs.

Robert Sam Raisch,
Respondent.

 

Filed July 3, 2007

Reversed and remanded

Wright, Judge

 

Isanti County District Court

File No. 30-CR-05-236

 

 

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

 

Jeffrey Edblad, Isanti County Attorney, Daniel J. Conlin, Assistant County Attorney, 555 18th Avenue Southwest, Cambridge, MN  55008 (for appellant)

 

Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN  55101 (for respondent)

 

 

            Considered and decided by Minge, Presiding Judge; Wright, Judge; and Harten, Judge.*

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

Appellant State of Minnesota appeals from a pretrial order suppressing evidence in the prosecution of respondent for first-degree aggravated robbery, conspiracy to commit first-degree aggravated robbery, and theft of a motor vehicle.  Appellant argues that the district court’s suppression decision will have a critical impact on the ability to prosecute respondent and was erroneous.  We reverse and remand.

FACTS

 

Appellant State of Minnesota filed a criminal complaint alleging that, at approximately 12:00 a.m. on August 3, 2004, a farmer was feeding his horses in Isanti County when respondent Robert Raisch[1] struck the farmer in the head, rendered him unconscious, and stole his Ford truck.  Approximately one-half mile from the farm, a Dodge truck, which Raisch had stolen in Michigan on July 30, 2004, was found on the side of the road.  When the Dodge truck was discovered, its engine was warm and cold beer bottles found in the truck matched bottles found at and near the farm.  A photograph of 16-year-old W.R.W. also was found inside the Dodge truck.  A canine unit tracked a scent from the Dodge truck to the location of the farmer.  Within an hour of finding the Dodge truck, an Anoka County deputy sheriff discovered the farmer’s Ford truck abandoned and out of gas in Blaine, about 25 miles south of the farm. 

The complaint also alleges that Raisch and his passenger, W.R.W., abandoned the Ford truck taken from Isanti County in Blaine and stole a nearby Jeep.  According to the complaint, a Mounds View police officer saw the Jeep run a red light and attempted to stop it.  Raisch and W.R.W. fled, eventually losing control of and crashing the Jeep.  Raisch and W.R.W. were arrested and hospitalized.  The keys to the Dodge truck taken from Michigan were found in Raisch’s pocket.  In July 2005, Raisch was charged with first-degree aggravated robbery, a violation of Minn. Stat. § 609.245, subd. 1 (2004); conspiracy to commit first-degree aggravated robbery, a violation of Minn. Stat. §§ 609.245, subd. 1, .175, subd. 2(3) (2004); and theft of a motor vehicle, a violation of Minn. Stat. § 609.52, subds. 2(17), 3(3)(d) (2004).[2] 

            In October 2005, the state filed a pretrial notice of its intention to introduce evidence under Minn. R. Evid. 404(b) of Raisch’s theft of the Jeep.  Raisch responded by filing a motion in limine opposing the admission of 404(b) evidence.  At a hearing on the motion, the state argued that the thefts of both the Dodge truck in Michigan and the Jeep in Blaine were part of a single course of conduct and, therefore, were not subject to exclusion under rule 404(b).   In the alternative, the state argued that the requirements of notice and probative evidentiary value under rule 404(b) had been met.  The district court suppressed the evidence of the theft of the Dodge truck and the Jeep, finding that it is “unduly prejudicial.”  But the district court ruled admissible evidence that Raisch fled when the police tried to apprehend him in the Jeep, falsely identified himself to the police officer when he was arrested, and possessed the keys to the Dodge truck.  The state filed this pretrial appeal under Minn. R. Crim. P. 28.04, subd. 1(1). 

D E C I S I O N

 

When the state appeals a pretrial suppression order, “‘the state must “clearly and unequivocally” show both that the [district] court’s order will have a “critical impact” on the state’s ability to prosecute the defendant successfully and that the order constituted error.’”  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quoting State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995)).  Thus, as an initial matter, we determine whether the district court’s suppression of the evidence will have a critical impact on the state’s case against Raisch.  When the likelihood of a successful prosecution is significantly reduced by the unavailability of the suppressed evidence, the critical-impact standard is met.  State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987). 

            The state’s case relies heavily on circumstantial evidence to prove the charged offenses.  Although circumstantial evidence is entitled to the same weight as direct evidence, a conviction based on circumstantial evidence warrants greater scrutiny.  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  Circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.  Id. The excluded evidence need not be direct evidence of a crime to meet the requisite showing of critical impact.  State v. McLeod,705 N.W.2d 776, 784-85 (Minn. 2005).  Rather, when circumstantial evidence “forms a link in the chain of the prosecution’s case [that is] . . . critical to the outcome of the trial because the loss of one link may prevent the state from meeting its evidentiary burden,” it may meet the critical-impact test.  Id.  (quotation omitted). 

I.

Raisch does not contest that the suppression of evidence that the Dodge truck was stolen has a critical impact on the state’s case.  The complaint alleges that Raisch committed theft by taking or driving the Dodge truck without the owner’s consent, a violation of Minn. Stat. § 609.52, subd. 2(17) (2004).  That the Dodge truck was stolen is direct evidence necessary to prove an element of the offense, namely, that Raisch did not have the owner’s consent to possess or drive the Dodge truck that he abandoned one-half mile from the Isanti County farm.  We, therefore, agree that suppression of this evidence has a critical impact on the state’s ability to prosecute this charge.  Moreover, as discussed below, because it is direct evidence necessary to prove an element of the charged offense, excluding this evidence as inadmissible 404(b) evidence of “other” bad acts was clearly erroneous.

The state argues that the suppression of evidence that Raisch stole the Jeep has a critical impact on its case because it destroys the credibility of  W.R.W.’s testimony and breaks the chain of circumstantial evidence.  W.R.W., who will be testifying with immunity because she is an accessory to the offense, is an important, but reluctant, witness for the state.  She has prior convictions, and she has made clear her unwillingness to cooperate with the state’s subpoena to appear and testify at trial.  We are persuaded by the state’s argument that W.R.W.’s credibility can be effectively attacked in the absence of corroborating evidence.  The suppression ruling prevents W.R.W. from explaining why, as a passenger, she was arrested with Raisch in a Jeep in Mounds View approximately one hour after the aggravated robbery in Isanti County.

Evidence of the theft of the Jeep in Blaine provides a critical link in the chain of circumstantial evidence.  The state can prove that the Ford truck was stolen from the Isanti County farm after the farmer was assaulted and rendered unconscious.  The Ford truck was later abandoned in Blaine.  But the suppression ruling precludes any testimony as to how the officers linked Raisch, who was arrested in Mounds View, to the abandoned Ford truck that was taken during the aggravated robbery in Isanti County.  The timing and location of the theft of the Jeep are essential to establishing Raisch’s means and direction of flight from the Isanti County crime.  Suppression of this evidence, therefore, has a critical impact on the state’s case.

II.

The state also argues that suppression of the thefts of the Dodge truck and the Jeep constitutes error because the three thefts are part of a single course of conduct.  As such, they fall within an exception to rule 404(b)’s exclusion of other-bad-act evidence.  A district court’s decision to exclude evidence constitutes error when it is an abuse of the district court’s discretion.  State v. Aubid, 591 N.W.2d 472, 477 (Minn. 1999).

 Evidence of other bad acts is “not admissible to prove the character of a person in order to show action in conformity therewith.”  Minn. R. Evid. 404(b).  But evidence of offenses committed as part of a single course of conduct, also called immediate-episode evidence, “is a separate category from evidence of other bad acts under Minn. R. Evid. 404(b).”  State v. Kendell, 723 N.W.2d 597, 608 (Minn. 2006).  To determine whether two or more offenses constitute a single episode, we evaluate the temporal and geographic proximity of the offenses and assess whether the conduct was motivated by an effort to obtain a single criminal objective.  See id. at 607-08 (affirming denial of motion to sever counts as single behavioral incident because interconnected evidence of each crime is immediate-episode evidence with same criminal objective); State v. Townsend, 546 N.W.2d 292, 296 (Minn. 1996) (holding that two incidents were  “immediate episode” evidence when close in time and place, and single criminal objective could be inferred from facts); State v. Mosby, 450 N.W.2d 629, 632-33 (Minn. App. 1990) (holding that evidence of defendant’s attempt to steal car in which to flee was integral part of sexual assault because it suggested consciousness of guilt), review denied (Minn. Mar. 16, 1990). 

Such immediate-episode evidence is subject to the balancing test articulated in Minn. R. Evid. 403, rather than the requirements and balancing test of rule 404(b).  Kendell, 723 N.W.2d at 609.  Rule 403’s balancing test excludes evidence if its probative value is “substantially outweighed by the danger of unfair prejudice,” whereas rule 404(b)’s balancing test excludes evidence of other bad acts if the probative value of the evidence is “outweighed by its potential for unfair prejudice.”  (Emphasis added.)  Thus, the balancing test for admissibility under rule 403 sets the bar for exclusion higher than it is under rule 404.

            Here, the alleged theft of the Dodge truck from Michigan, aggravated robbery in Isanti County, and theft of the Jeep in Blaine were part of a single course of conduct or an immediate episode because they were close in time and place and shared a criminal objective.  According to the state’s theory of the case, the aggravated robbery in Isanti County enabled Raisch to flee in the Ford truck from the area where he abandoned the Dodge truck that he took and drove to Isanti County without the owner’s consent.  The theft of the Jeep in Blaine enabled Raisch to flee from the location where he abandoned the Ford truck taken during the Isanti County aggravated robbery.  These offenses were connected in time and place and, according to the state, were motivated by a single criminal objective—to avoid apprehension for the ongoing crime spree by engaging in flight.  When a defendant commits a subsequent crime to avoid apprehension for a previous crime committed close in time and location, the offenses constitute a single criminal objective.  Kendell, 723 N.W.2d at 608.  Thus, Raisch’s alleged theft of the Dodge truck by taking and driving it without the owner’s consent and his theft of the Jeep in Blaine constitute immediate-episode evidence. 

            To be inadmissible, the probative value of immediate-episode evidence must be “substantially outweighed” by the danger of unfair prejudice under Minn. R. Evid. 403.  Here, the district court erroneously applied the balancing test under Minn. R. Evid. 404(b) to determine that evidence of the thefts is unduly prejudicial and would be used to persuade the jury by illegitimate means.  As previously discussed, evidence of the theft of the Dodge truck from Michigan indeed may be offered for the legitimate purpose of proving an element of a charged offense—that the truck was taken and driven without the owner’s consent in violation of Minn. Stat. § 609.52, subd. 2(17).  It, therefore, was erroneous to suppress this evidence.  The theft of the Jeep in Blaine is highly probative because it establishes the basis for the officers linking Raisch to the Isanti County aggravated robbery after arresting him in Mounds View, thereby forming a complete chain of circumstantial evidence necessary to meet the state’s burden of proof.  Because the district court applied the wrong legal standard for admissibility, and because the evidence is admissible under rule 403, we reverse the district court’s suppression of evidence and remand for further proceedings consistent with this opinion.   

            Reversed and remanded.