A06-1103

State of Minnesota,

Respondent,

vs.

Robert Croteau,

Appellant.

Filed October 9, 2007

Affirmed

Worke, Judge

Anoka County District Court

File No. K4-05-12316

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

Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Ross, Judge.

U N P U B L I S H E D O P I N I O N

WORKE, Judge

On appeal from a conviction and sentence for third-degree burglary, criminal damage to property, and harassment, appellant argues that (1) he was denied the effective assistance of counsel, and (2) the district court erred by failing to give a cautionary instruction on the use of relationship evidence, excluding alternative-perpetrator evidence, and sentencing him separately on the harassment and criminal-damage-to-property convictions. We affirm.

D E C I S I O N

Ineffective assistance of counsel

Appellant Robert Croteau argues that his trial counsel was ineffective. A defendant claiming ineffective assistance of counsel must prove that his counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s errors, the outcome would have been different. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotation omitted). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)).

To allow counsel “flexibility to represent a client to the fullest extent possible,” our review of the performance prong does not include reviewing attacks on counsel’s trial strategy. Opsahl v. State,677 N.W.2d 414, 421 (Minn. 2004) (quoting State v. Jones,392 N.W.2d 224, 236 (Minn. 1986)). Trial strategy includes decisions about what evidence to present to the jury. State v. Miller,666 N.W.2d 703, 716-17 (Minn. 2003). Performance is not unreasonable when counsel does not object to properly admitted evidence. See State v. Asfeld,662 N.W.2d 534, 546 (Minn. 2003) (concluding ineffective-assistance-of-counsel claim fails due to failure to object to properly admitted evidence). The prejudice prong of Strickland requires that a defendant suffer actual prejudice, which the defendant must prove by a preponderance of the evidence. Pierson v. State,637 N.W.2d 571, 579 (Minn. 2002). When the error is harmless, the defendant cannot satisfy the prejudice prong. McDonough v. State,675 N.W.2d 53, 56 n.4 (Minn. 2004).

Appellant first argues that his counsel failed to object to evidence seized during a warrantless search of the apartment where he was staying. The United States and Minnesota Constitutions protect against unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. “The right arises only when a person has a legitimate expectation of privacy in the place [searched].” State v. Carter, 697 N.W.2d 199, 206 (Minn. 2005). A warrantless search is per se unreasonable unless an exception to the warrant requirement applies. State v. Search, 472 N.W.2d 850, 852 (Minn. 1991). A warrantless search is justifiable when exigent circumstances exist. State v. Lohnes,344 N.W.2d 605, 610 (Minn. 1984). In determining whether exigent circumstances exist we must consider the totality of the circumstances surrounding the entry and the seizure. Id.at 611. On appeal, we review a district court’s findings of fact for clear error. State v. Blom, 682 N.W.2d 578, 616 (Minn. 2004). As applied to specific facts, the reasonableness of a seizure presents a question of law, which we review de novo. State v. Burbach, 706 N.W.2d 484, 487 (Minn. 2005).

In December 2005, police responded to a break-in at the Anoka City Shops. There were fresh pry marks on the frame of a window that was used to enter the building, and shoe prints with a distinctive pattern left in the snow beneath the window. A city plow truck was missing, which was recovered a short time later damaged. The same distinct shoe print was found near the vehicle, and officers tracked the prints to an apartment complex.

Shortly after responding to the break-in, police received a report of a vehicle that had struck a building. Witnesses reported seeing a white plow truck with the words “Anoka City” printed on it run into a van, push it into a tree, and then into the building. A.M., the wife of the van’s registered owner, told officers that she suspected that appellant was responsible for damaging the vehicle. Police records confirmed that two months earlier, A.M. had reported that appellant had been harassing her.

Officers obtained appellant’s physical description, which indicated that he was the appropriate size to have fit through the window and gate at the City Shops. Officers then went to an apartment complex where appellant stayed. The caretaker explained that appellant had been evicted the previous day. After speaking with a tenant, officers learned that appellant was staying in a different apartment. Officers knocked on the apartment door and identified themselves, but nobody responded. Officers observed someone inside look through the door peephole and heard movement inside. Because the officers knew that appellant was violent and had evaded police in the past, they believed that appellant was going to exit through another door. The caretaker opened the door and appellant was feigning sleep in the living room. The soles of a pair of shoes next to appellant, which appellant acknowledged were his, matched the pattern of the shoe prints found in the snow. Officers also found a screwdriver with a broken tip, which was later determined to be consistent with the pry marks on the window frame at the City Shops.

Appellant argues that he had a reasonable expectation of privacy in the apartment because he was an overnight guest. Overnight guests may claim protection under the Fourth Amendment. Minn. v. Carter,525 U.S. 83, 90, 119 S. Ct. 469, 473 (1998). But the Supreme Court has expressly rejected the idea that “anyone legitimately on the premises where a search occurs may challenge its legality.” Id. (quotation omitted). Appellant did not have a reasonable expectation of privacy in the apartment because he was not a legitimate overnight guest. The caretaker evicted appellant and there was no evidence that appellant had permission to be in the apartment where he was found.

Appellant also argues that the warrantless search was not justified by the caretaker’s consent. Under the consent exception to the warrant requirement, a warrantless search is reasonable if police obtain consent that is voluntarily given by a person authorized to consent and the search does not exceed the scope of the consent. State v. Thompson, 578 N.W.2d 734, 740 (Minn. 1998). Voluntary consent to search may be validly given by a third party who possesses common authority over the premises. State v. Hummel, 483 N.W.2d 68, 73 (Minn. 1992). “Where common authority does not actually exist, consent to entry is still valid where, under an objective standard, an officer reasonably believes the third party has authority over the premises and could give consent to enter.” Thompson, 578 N.W.2d at 740. Here, the caretaker’s consent was valid because the officers reasonably believed that the caretaker had authority over the premises. Because appellant did not have a reasonable expectation of privacy in the apartment and voluntary consent was obtained from the caretaker, appellant’s attorney did not provide ineffective assistance of counsel by failing to seek to suppress the evidence seized during the warrantless search.

Appellant next argues that his attorney was ineffective for conceding to the admission of relationship evidence. Appellant argues that evidence that he previously threatened A.M. was inappropriately admitted under Minn. Stat. § 634.20 (2004), because he and A.M. had never been in a domestic relationship and the evidence was more prejudicial than probative.

Minn. Stat. § 634.20 provides:

Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. ‘Similar conduct’ includes, but is not limited to, evidence of . . . [harassment] . . . . ‘family or household members’ have the meanings given under section 518B.01, subdivision 2.

A family or household member includes (1) spouses and former spouses; (2) parents and children; (3) blood relatives; (4) persons who are or have resided together; (5) persons with a child in common; (6) a man and woman if the woman is pregnant and the man is the alleged father; and (7) persons involved in a significant romantic or sexual relationship. Minn. Stat. § 518B.01, subd. 2(b) (2004). Appellant and A.M. did not have a statutorily defined relationship; therefore, the evidence was not relationship evidence under Minn. Stat. § 634.20. The issue then is whether appellant received ineffective assistance of counsel because his attorney did not object to the admission of the evidence of appellant’s prior threats. Appellant must prove that his attorney’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for the error the outcome would have been different. Gates, 398 N.W.2d at 561.

The state introduced evidence of appellant and A.M.’s relationship to show motive behind the harassment charge. Appellant’s attorney did not object. A.M. testified that she knew appellant and had purchased a bike from him. The bike did not work, and A.M. requested a refund, but appellant refused. Approximately one month later, appellant gave A.M. money to purchase marijuana for him. A.M. took the money, but did not buy marijuana for appellant. Appellant began calling A.M. and leaving “angry” messages. Appellant also sent A.M. text messages—one read “karma is a sick b***h,” and another read “you’ll be lucky to just end up in a wheelchair.” A.M. asked appellant to stop sending her messages, and he told her that he would “slash [her] throat”; after that, A.M. called the police.

There is not a reasonable probability that the outcome would have been different had this evidence not been admitted. There was sufficient evidence for the jury to find appellant guilty of third-degree burglary and criminal damage to property—officers found appellant’s shoe prints in the snow that led back to the apartment building where appellant was staying; a screwdriver was found in his belongings that matched the pry marks around the window; and witnesses saw a city truck with an attached snowplow push a van into a building. Although the evidence that appellant had previously threatened A.M. showed his motive in causing damage to her van, the evidence that she had received money from him to purchase marijuana and then kept the money also shows motive. Thus, there is not a reasonable probability that the outcome would have been different without the evidence that appellant had previously threatened A.M.

Appellant also argues that his attorney failed to request a cautionary instruction on the use of relationship evidence. But the decision to request jury instructions is a tactical matter. State v. Doppler,590 N.W.2d 627, 635 (Minn. 1999). And this court’s review of counsel’s performance does not include reviewing attacks on counsel’s trial strategy. Opsahl, 677 N.W.2d at 421. Therefore, appellant cannot show that his counsel was ineffective for failing to request a cautionary instruction.

Finally, appellant argues that his attorney failed to pursue an alternative-perpetrator theory. A defendant is afforded a fair opportunity to defend against criminal charges, including a right to present evidence of other crimes, wrongs, or bad acts committed by an alleged alternative perpetrator in order to cast reasonable doubt upon the identification of the defendant as the person who committed the charged crime. Chambers v. Mississippi, 410 U.S. 284, 294, S. Ct. 1038, 1045 (1973); State v. Gutierrez, 667 N.W.2d 426, 436-37 (Minn. 2003). This type of evidence is inadmissible absent some evidence having an inherent tendency to connect the alternative perpetrator with the crime. State v. Hawkins, 260 N.W.2d 150, 159 (Minn. 1977).

A.M. testified that her ex-boyfriend had at one point lived in the apartment complex where appellant was found. Prior to closing arguments, the district court instructed appellant’s attorney to avoid referring to evidence “that connects a specific alternative party with [] commission of the crime, because [she had] not laid the foundation for a [Hawkins]offer.” The district court clarified:

You may name no person, including this old boyfriend. Because if you name that person then you’re attempting an alternative perpetrator defense . . . [you] can argue that there are thousands of people who might have done this, and [you] can argue it however [you] want to. What I don’t want you doing is attempting to back-door an alternative perpetrator by saying well, you know there is Mr. Whatever his name is, because there is no evidence in the record. None. The evidence is very clear.

The only evidence was that A.M.’s ex-boyfriend had at one point lived in the apartment complex where appellant was found. Because there was no evidence connecting anyone else to the crimes, appellant’s attorney did not provide ineffective assistance of counsel by failing to present an alternative-perpetrator defense. Appellant has failed to show that he received ineffective assistance of counsel.

Jury Instructions

Appellant argues that the district court should have given the jury a cautionary instruction on the use of relationship evidence. Whether evidence requires a cautionary instruction is a matter left to the discretion of the district court. Muehlhauser v. Erickson, 621 N.W.2d 24, 30 (Minn. App. 2000).

Although the district court did not give a cautionary instruction, absent a request, that failure is not reversible error. State v. Meldrum, 724 N.W.2d 15, 21 (Minn. App. 2006), review denied (Minn. Jan. 24, 2007). And failure to propose a specific jury instruction or to object to an instruction generally constitutes a waiver of the right to appeal. State v. Cross,577 N.W.2d 721, 726 (Minn. 1998). Absent an objection, an appellate court may only review for plain error. State v. Crowsbreast,629 N.W.2d 433, 437 (Minn. 2001). Plain error exists “only if the [district] court’s failure seriously affected substantial rights and only if the error was prejudicial error.” State v. Glidden,455 N.W.2d 744, 747 (Minn. 1990). Under the plain-error test, an unobjected-to alleged error will only be corrected if there is: (1) an error; (2) it is plain; and (3) it affects the defendant’s substantial rights. State v. Griller,583 N.W.2d 736, 740 (Minn. 1998).

Even if we were to consider appellant’s challenge, he would not prevail. “This court must look at the entire record to determine if there is a significant likelihood that the jury misused the evidence, resulting in the evidence improperly affecting the verdict.” Meldrum, 724 N.W.2d at 21-22. Here, there was more than sufficient evidence supporting appellant’s conviction. And although the state questioned A.M. about the threats she received from appellant, the prosecutor never suggested an improper use of the “relationship” evidence. See State v. Bissell, 368 N.W.2d 281, 283 (Minn. 1985) (concluding that the failure to give a cautionary instruction was not prejudicial because “no one suggested that the evidence should be used for any [improper] purpose”). Here, the state used the evidence to explain the history of the relationship and appellant’s intent and motive. Because other evidence offered during the trial negated the allegation that the probative value of the relationship evidence is outweighed by the potential for unfair prejudice, the district court did not commit plain error in failing to sua sponte give a cautionary instruction on the use of the relationship evidence.

Sentencing

Finally, appellant argues that the district court should not have imposed concurrent sentences for harassment and criminal damage to property because those crimes involved the same behavioral incident. A district court has broad discretion in sentencing, and such a decision will not be reversed absent a clear abuse of discretion. See State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) (“[W]e generally will not interfere with the exercise of that [broad] discretion.”). But a district court generally may not impose more than one sentence on a defendant who commits multiple offenses as part of a single behavioral incident. Minn. Stat. § 609.035, subd. 1 (2004). “The district court’s decision of whether multiple offenses are part of a single behavioral incident is a fact determination and should not be reversed unless clearly erroneous.” State v. Carr, 692 N.W.2d 98, 101 (Minn. App. 2005). “[T]he factors to be considered in determining whether multiple offenses constitute a single behavioral act are time, place, and whether the offenses were motivated by a desire to obtain a single criminal objective.” State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997).

An exception to the single-behavioral-incident rule allows the imposition of multiple sentences when (1) there are multiple victims; and (2) multiple sentencing does not unfairly exaggerate the criminality of the defendant’s conduct. State v. Marquardt, 294 N.W.2d 849, 850-51 (Minn. 1980). Here, the district court sentenced appellant to concurrent sentences of 27 months in prison for the third-degree burglary charge, 21 months in prison for the criminal-damage-to-property charge, and 97 days for the harassment charge. The 97-day sentence was considered satisfied because appellant had 97 days credit for time served. The harassment involved A.M. and the criminal damage to property involved Anoka City Shops, the surrounding fence, A.M.’s van, the apartment building, and a tree. The district court did not abuse its discretion in sentencing appellant to concurrent sentences.

Affirmed.