This opinion will be unpublished and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

A06-1068

 

 

State of Minnesota,

Respondent,

 

vs.

 

Darnell Louis Frazier,

Appellant.

 

 

Filed September 25, 2007

Affirmed

Parker, Judge*

Concurring specially, Randall, Judge

 

Jackson County District Court

File No. 32-CR-05-1235

 

 

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101; and

 

Robert O’Connor, Jackson County Attorney, 405 Fourth Street, Suite 2D, Jackson, MN 56143 (for respondent)

 

John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

 

PARKER, Judge

 

            On an afternoon in November 2005, a Minnesota state trooper arrested appellant Darnell Frazier and three other individuals near Jackson after he observed their Saturn automobile speeding, and a vehicle check indicated the car had been recently stolen in Nebraska.  After giving inconsistent stories regarding why he was riding in a stolen car, appellant was charged with bringing stolen goods into the state in violation of Minn. Stat. §§ 609.525, subd. 1, 609.52, subds. 2(17), 3(d)(v) (2004).  After a jury trial, appellant was convicted, and the district court imposed the presumptive sentence of 48 months.  Appellant challenges his conviction, arguing that the district court erred by (1) admitting prejudicial evidence of prior bad acts; (2) admitting hearsay statements in violation of the Sixth Amendment; (3) failing to give an accomplice-testimony jury instruction; (4) allowing the case to proceed to a jury without sufficient evidence for conviction; and (5) imposing a sentence that was invalid.   Because the verdict is supported by sufficient evidence and the district court properly applied the law and did not abuse its discretion, we affirm.

D E C I S I O N

1.         Prior bad acts

Appellant argues that the district court erred by admitting his tape-recorded statement that he had eight prior incarcerations for auto theft because it was impermissible character evidence.  This court reviews the district court’s decision to admit Spreigl evidence for an abuse of discretion.  State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006).  “A defendant who claims the trial court erred in admitting evidence bears the burden of showing the error and any resulting prejudice.”  Id. (quotation omitted).

Evidence of other crimes, wrongs, or bad acts may be admitted only for limited, specific purposes, including to show motive, intent, knowledge, identity, absence of mistake or accident, or a common scheme or plan.  Minn. R. Evid. 404(b).  Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show that the person acted in conformity therewith on a particular occasion.  Id.  Such evidence may not be introduced if its probative value is substantially outweighed by its tendency to unfairly prejudice the fact-finder.  Minn. R. Evid. 403.  “[W]hen balancing the probative value of Spreigl evidence against the potential for unfair prejudice, the [district] court must consider how necessary the Spreigl evidence is to the state’s case.  State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992). 

In his tape-recorded interview with the trooper, appellant stated that, “I went to prison for eight different auto thefts.  . . .  I pretty much know how it goes as far as auto theft.”  Following a pretrial hearing, the district court admitted the statement over appellant’s objection on the ground that he “volunteered” it.  Rule 404(b) allows admission of evidence that appellant had been incarcerated for stealing cars in the past because it is indicative of his intent to commit a similar crime and demonstrates an absence of mistake, namely, the possibility that he went for a long drive in a car that he had no idea was stolen.  See Minn. R. Evid. 404(b).  In a case such as this when appellant was not the driver and presented a conflicting alibi, the statement was helpful in showing that appellant had not put himself in a situation where he was riding in a stolen car by mere chance.  Furthermore, evidence is not unfairly prejudicial simply because it is damaging to a defendant’s case; rather, to be unfairly prejudicial, the evidence must have the potential to induce the fact-finder to convict the defendant for illegitimate reasons.  See State v. Townsend, 546 N.W.2d 292, 296 (Minn. 1996).  Thus, the statement’s probative value far outweighs its potential for unfair prejudice, and the district court did not abuse discretion in admitting it. 

            2.         Hearsay statements

Appellant argues his tape-recorded interview with the trooper, ruled admissible by the district court, alluded to statements made by appellant’s companions, which were hearsay statements admitted in violation of the Sixth Amendment’s Confrontation Clause.  In taking the statement, the trooper told appellant that his companions had said that it was appellant’s girlfriend’s car; the trooper also told appellant that there were some inconsistencies between appellant’s story and those of his companions.  The trooper elicited responses to these comments.  Appellant sought to have the trooper’s comments redacted.  The district court denied the motion.  Appellant claims that the trooper’s statements were hearsay, and the district court erred by admitting them. 

            A reviewing court will not reverse a district court’s evidentiary rulings unless the district court abused discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  When evidence was admitted in violation of a defendant’s constitutional right to confrontation, reversal is required unless the error was harmless beyond a reasonable doubt.  State v. Courtney, 696 N.W.2d 73, 79-80 (Minn. 2005).  

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.  Minn. R. Evid. 801(c).  The Sixth Amendment’s Confrontation Clause forbids the introduction of testimonial hearsay unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant.  Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004).  Error requires reversal of appellant’s conviction unless it was harmless beyond a reasonable doubt.  State v. Caulfield, 722 N.W.2d 304, 314 (Minn. 2006). 

            Here, the trooper’s statements were not offered to prove the truth of the matter asserted, namely, that appellant stole the car.  Rather, they demonstrate the many inconsistencies between appellant’s own statements, as well as the statements of his companions, and impeach his credibility.  In particular, because some of the passenger statements claim that appellant’s girlfriend owned the car, and the others address who actually drove the car, they do not directly prove that appellant stole the car himself.  Because they are not hearsay statements, their admission did not violate the Confrontation Clause of the Sixth Amendment.  See State v. Tovar, 605 N.W.2d 717, 726 (Minn. 2000) (holding that an officer’s tape-recorded statements of what others told him were not hearsay when not offered to prove the truth of the matter asserted, but instead to give context to defendant’s own statements).  Appellant did not, therefore, establish that the district court abused discretion in admitting the statements.

            3.         Accomplice-testimony jury instruction

Appellant argues that the district court erred by failing to give an instruction informing the jury it could not convict appellant based on uncorroborated accomplice testimony.  Specifically, appellant argues that his companion William Clark’s testimony, as well as the testimonial statements of appellant’s other companions relayed to appellant by the trooper in the recorded interrogation, were accomplice testimony.  Here, no accomplice instruction was requested, and none was given.  And appellant did not object to the instructions.  Therefore, we review for plain error.[1]  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).

Under plain-error review, a defendant may obtain relief if he was denied a fair trial.  State v. Litzau, 650 N.W.2d 177, 182 (Minn. 2002).  Plain error requires that (1) there was error, (2) that was plain, and (3) that affected substantial rights.  Griller, 583 N.W.2d at 740.  An error affects substantial rights when it is reasonably likely that the error had a significant effect on the jury’s verdict.  Id. at 741.  “If these three factors are met, we may correct the error only if the fairness, integrity, or public reputation of the judicial proceeding is seriously affected.”  State v. Jones, 678 N.W.2d 1, 18 (Minn. 2004).

            Under Minn. Stat. § 634.04 (2004),

                        a conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

 

When an accomplice instruction is warranted, the district court has a duty to give the instruction even if the attorneys do not request it.  State v. Strommen, 648 N.W.2d 681, 689 (Minn. 2002).  In a number of cases, this court has held that the district court’s failure to give an accomplice jury instruction was not plain error.  See, e.g., State v. Shoop, 441 N.W.2d 475, 480 (Minn. 1989). 

Here, the conviction does not rely on the statements repeated by the trooper or those of William Clark.  Rather, the statements merely described the circumstances of the case and impeached appellant’s credibility by highlighting the inconsistencies in the many stories about the origin of the Saturn automobile. Therefore, corroboration was not necessary and the district court’s failure to give the instruction was not plain error. 

            4.         Sufficiency of evidence

Appellant argues that there was no evidence that proves he drove the car into Minnesota, and, therefore, there was insufficient evidence for conviction.  In reviewing the sufficiency of evidence in a criminal case, “we are limited to ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged.” State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). We will not disturb the verdict “[i]f the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that [a] defendant was proven guilty of the offense charged.”  State v. McCullum, 289 N.W.2d 89, 91 (Minn. 1979) (quoting State v. Norgaard, 272 Minn. 48, 52, 136 N.W.2d 628, 632 (1965)).  We consider the evidence in the light most favorable to the verdict.  State v. Oevering, 268 N.W.2d 68, 71 (Minn. 1978).

Circumstantial evidence is generally entitled to the same weight as direct evidence; however, if a conviction is based on circumstantial evidence, a higher level of scrutiny is warranted.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  The circumstances proved must be “consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.” Id. Our supreme court has stated, “[I]n such cases the circumstantial evidence must do more than give rise to suspicion of guilt; ‘it must point unerringly to the accused’s guilt.’”  State v. Scharmer, 501 N.W.2d 620, 622 (Minn. 1993) (quoting State v. Loss, 295 Minn. 271, 281, 204 N.W.2d 404, 409 (1973)).

To convict appellant of bringing stolen goods into the state, the state must prove that: (1) appellant brought property into the State of Minnesota; (2) the property was a motor vehicle; and (3) defendant stole the property or received it outside the state with the knowledge it was stolen.  Minn. Stat. §§ 609.525, subd. 1, 609.52, subds. 2(17), 3(d)(v).  Here, there is no dispute that the stolen property is a motor vehicle, and defendant’s own admission that he believed the property may have been stolen, the Spreigl evidence admitted at trial, as well as the inconsistent stories regarding the car’s origin, are sufficient to justify the jury’s verdict that appellant was acting with knowledge that the car was stolen.  The issue is whether appellant brought the property into the state because he was not driving the car when it was stopped.

Appellant stated that he drove the car for “one hour,” but later stated that he drove the car for a “couple hours.”  Therefore, based on appellant’s statement that he drove for a “couple of hours,” a reasonable inference could be drawn by the jury that appellant “brought” the car into Minnesota.  Further, reading “brought” or “brings” so narrowly as to require appellant actually to have been the one who drove the car across the state line is an unduly narrow and unreasonable construction of the statute, especially when there is evidence that appellant drove the car during a significant portion of the journey.  We give words their plain and ordinary meaning.  Minn. Stat. § 645.08(1) (2006).  If appellant had a substantial role in driving the car across the border, then he “brought” the car across state lines.  Therefore, there was sufficient evidence to convict appellant.[2] 

            5.         Validity of sentence

Appellant argues that his sentence was invalid because the guidelines sentence conflicts with the sentences for theft prescribed by Minn. Stat. § 609.52, subd. 3 (2004).  Whether a statute or a provision of the sentencing guidelines has been properly construed is a question of law to be reviewed de novo.  State v. Zeimet, 696 N.W.2d 791, 793 (Minn. 2005).

            Minn. Stat. § 609.525, subd. 1, states that persons who bring stolen property into the state may be sentenced in accordance with other theft offenses under Minn. Stat. § 609.52, subd. 3.  Subpart 3 of that statute provides that a felony theft of less than $2,500 is subject to a sentence of “imprisonment for not more than five years or to a payment of a fine of not more than $10,000, or both.”  Minn. Stat. § 609.52, subd. 3(3).  Thus, the statute prescribes the statutory maximum sentence that may be imposed, namely, five years in prison and a fine of $10,000. 

            Under the guidelines, a felony theft of less than $2,500 carries a severity level of II.  But the guidelines mandate a severity level V for the offense of bringing stolen property valued under $2,500 into the state.  Minn. Sent. Guidelines V.  Using a special-verdict form, the jury found that the value of the Saturn was more than $1,000, but less than $2,500. 

Appellant argues that because the legislature directs sentences for bringing stolen property into the state to be in accord with sentences for other theft crimes and the severity level assigned to the offenses of theft and bringing stolen property into the state are different under the guidelines, appellant’s sentence is invalid because the offense should have been ranked a severity level II—just like theft.

            Under Minn. Stat. § 244.09, subd. 5 (2004 & Supp. 2005), the Minnesota Sentencing Guidelines Commission has the authority to promulgate sentencing guidelines for the district court.  The commission is to provide for a “presumptive, fixed sentence for offenders for whom imprisonment is proper.”  Id., subd. 5(2).  The presumptive sentence in the guidelines cannot exceed the maximum penalty under the statute.

            Here, the commission has fulfilled its legislative mandate to assign presumptive sentences for the relevant offenses, including the assignment of severity levels.    Appellant’s presumptive sentence of 48 months in prison does not exceed the maximum penalty of 60 months prescribed by the statute.  See State v. Olson, 379 N.W.2d 524, 526 (Minn. 1986) (holding defendant’s sentence at the higher of two severity levels when it was less than the statutory maximum penalty proper).  Furthermore, Minn. Stat. § 609.525, subd. 1, states that the district court may sentence a defendant in accordance with Minn. Stat. § 609.52, subd. 3.  Therefore, a sentencing court could seek its guidance from the guidelines rather than another statute.  Thus, appellant’s sentence comports with both the statute and the sentencing guidelines and is not invalid. 

            Affirmed.

RANDALL, Judge (concurring specially)

            I concur in the result.