State v. Vangrevenhof

Connolly, Judge

This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2018). Affirmed
Connolly, Judge Olmsted County District Court
File No. 55-CR-17-7680 Keith Ellison, Attorney General, St. Paul, Minnesota; and Jennifer D. Plante, Olmsted County Attorney, Joseph K. Rosholt, Assistant County Attorney, Rochester, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Melissa Sheridan, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Slieter, Presiding Judge; Halbrooks, Judge; and Connolly, Judge.

UNPUBLISHED OPINION

CONNOLLY, Judge

Appellant challenges his convictions of methamphetamine possession and sale, arguing that the district court abused its discretion by admitting a codefendant's out-of-court statement and excluding pawn-shop receipts found in appellant's pocket and that appellant was prejudiced because the jury was given a no-adverse-inference jury instruction to which appellant had not personally consented. In a pro se brief, appellant also challenges the exclusion of testimony about social-media messages on appellant's phone and the fact that the jury's viewing of body-camera footage was interrupted. Because we see no abuse of discretion in the evidentiary decisions and no prejudice to appellant from the no-adverse-inference instruction or the interruptions of the body-camera footage, we affirm.

FACTS

On November 8, 2017, an investigator, acting on information from a confidential reliable informant (CRI) concerning appellant Brian Ven Vangrevenhof and L.P., observed the two of them standing and talking for about five minutes near a storage facility. Appellant was wanted for a probable-cause arrest, and L.P. had an active arrest warrant. The investigator saw L.P. go towards a fast-food restaurant across the street and appellant go towards a restroom in the storage facility.

Two investigators arrested appellant when he emerged from the restroom. They found $791 on him, including four $100 bills and several $20 bills, as well as keys to a storage unit. Two other investigators went to the restaurant and arrested L.P., in whose purse they found a clear zip-top bag containing a crystalline substance later determined to be 27.506 grams of methamphetamine and $163 in cash. Appellant and L.P. were each charged with one count of first-degree controlled substance crime (methamphetamine sale) and one count of second-degree controlled substance crime (methamphetamine possession).

L.P. was taken to the adult detention center, where she gave a statement to a police officer. The police officer later testified that L.P. did not seem impaired when giving the statement and that, when he asked L.P. where the methamphetamine came from, she answered, "From [appellant]." He also testified that L.P. told him "[appellant] initially said he would sell [the methamphetamine] to her for $800 but . . . she paid him $700 for it." Finally, when asked if he had made a point of telling L.P. that whether she gave a statement was up to her, the officer answered, "Several times."

At trial, L.P. testified that, on November 8, 2017, she had purchased methamphetamine not from appellant but from someone else, although she conceded that she told the officer she purchased it from appellant and paid for it in part with four $100 bills. She also testified that (1) her statement was coerced because the officer had kept asking questions, (2) she was highly impaired by methamphetamine at the time she gave the statement, and (3) the statement was false.

After the state rested, appellant asked if an investigator could testify about some receipts from a pawn shop that were found in appellant's wallet at the jail. The district court excluded this testimony as hearsay because it was being offered for the truth of the matter asserted, namely that appellant had received a large amount of cash from a pawn shop about two months prior to the incident, to show that the cash found on appellant was not the result of selling methamphetamine to L.P.

Appellant decided not to testify. His attorney agreed that the jury should be instructed that appellant had the constitutional right not to testify and the jury was "not [to] draw any inference from the fact that [appellant] has not testified in this case."

The jury found appellant guilty on both counts. Appellant challenges his convictions, arguing that the district court abused its discretion by admitting L.P.'s out-of-court statement to the officer and by excluding the pawn shop receipts and that appellant was prejudiced when the district court gave the no-adverse-inference jury instruction without having obtained appellant's personal consent. In a pro se brief, appellant argues that he is entitled to a new trial because the district court excluded testimony about social media messages on appellant's cellphone and because there were interruptions in the jury's viewing of body-camera footage.

DECISION 1. Admission of L.P.'s Out-of-Court Statement

The district court determined that L.P.'s statement to the officer was admissible under Minn. R. Evid. 807, providing that:

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

"A determination that a statement meets the foundational requirements of a hearsay exception is reviewed for an abuse of discretion." Holt v. State, 772 N.W.2d 470, 483 (Minn. 2009).

In admitting an out-of-court statement, a district court considers whether: (1) there is a confrontation problem; (2) there is a dispute either as to the declarant making the statement or the content of the statement; (3) the statement is against the declarant's penal interest; and (4) the statement is consistent with other evidence the state presents at trial. State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985).

Here, there was no confrontation problem: L.P. was available to testify at trial. The letter showed that L.P. admitted making the statement and admitted saying that she had purchased methamphetamine from appellant. The district court noted that the statement was "against [L.P.'s] interest in that she's being told before making a statement that she's looking at charges for a first degree controlled substance sale of methamphetamine, as well as a second degree possession of methamphetamine" and that the statement was "consistent with other evidence that would be introduced at trial."

Here, as in Ortlepp, "[t]he statement was a prior statement in which [the declarant] not only implicated defendant in the crime but also confessed [her] own guilt". Id. at 43. Thus, the reasoning in Ortlepp applies here.

First, there is no confrontation problem presented by the admission of the statement as substantive evidence, since [the declarant] testified, admitted making the prior statement, and was available for cross-examination by defense counsel. Second, since [the declarant] admitted making the prior statement, there was no real dispute over whether he made it or

over what it contained. . . . Third, the statement was against [the declarant's] penal interest, a fact that increases its reliability. Fourth, the statement was consistent with all the other evidence the state introduced, evidence which pointed strongly toward both defendant['s] and [the declarant's] guilt.

Id. at 44. There was no abuse of discretion in the admission of L.P.'s statement.

2. Exclusion of the Pawn Shop Receipts

Appellant argues that he was denied his right to present a complete defense because the district court excluded an investigator's evidence of pawn shop receipts she found in appellant's wallet at the jail, indicating that he had received $601.50 about a month before the incident and $90 a few days before. A district court's evidentiary rulings will generally not be reversed absent a clear abuse of discretion. State v. Flores, 595 N.W.2d 860, 865 (Minn. 1999) (reviewing a hearsay ruling).

The district court declined to admit the receipts on two grounds. The first was hearsay. Hearsay is an out of court statement "offered in evidence to prove the truth of the matter asserted." Minn. R. Evid. 801(c). Appellant's attorney said he was offering them because they would "show that there is a reason [appellant] ha[d] cash on him; . . . there was quite a big hoopla made about the fact he ha[d] large amounts of cash on him. Th[ese] would go to show why." The district court said, "[B]ased on the nature of what you intend to argue from them, you are offering them for the truth of the matter asserted as to why he would have other cash on his person." Appellant now argues that the receipts were not offered to prove the truth of the matter asserted, but this contradicts what his attorney said at trial: the receipts were offered to show that appellant had recently received a large amount of cash. The receipts were hearsay and thus inadmissible absent an exception.

The second was lack of foundation. Appellant's attorney said, "I understand the foundation objection, saying that there is no declarant because . . . we don't have someone from [the pawn shop] . . . [T]hese are documents that are clearly . . . from [the pawn shop] . . . . had [appellant's] name all over them, and . . . they appear to be . . . 'official looking.'" The attorney was implicitly arguing that the receipts were admissible under the business-records exception to the hearsay rule. See Minn. R. Evid. 803(6). But that exception requires foundation for business-records evidence to be provided by "the custodian or other qualified witness." Nat'l Tea Co. v. Tyler Refrigeration Co., 339 N.W.2d. 59, 61 (Minn. 1983). The investigator who would have testified about the receipts could say no more than that they had been found in appellant's property: she was not a custodian or otherwise a qualified witness to testify about the receipts. The district court did not abuse its discretion in saying, "I don't think there is proper foundation for those receipts."

3. Adverse-Inference Instruction

Appellant's attorney answered, "Yes" when the district court asked him if his client, appellant, was requesting CRIMJIG 3.17, stating that a defendant has the right not to testify guaranteed by federal and state constitutions and that the jury is not to draw any adverse inference from a defendant's decision not to testify. It is undisputed that it is error to give this instruction without having the defendant's personal consent on the record. State v. Gomez, 721 N.W.2d 871, 881-82 (Minn. 2006).

Appellant did not object to the instruction before or after it was given; therefore, the standard of review is plain error, which requires the error to have affected the defendant's substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). But "[g]iving the no-adverse-inference instruction without consent, absent a showing of prejudice, is harmless," and "a defendant who fails to object to the no-adverse-inference instruction bears a heavy burden of showing that [his] substantial rights have been affected." Gomez, 721 N.W.2d at 880.

Appellant attempts to meet this burden and obtain a new trial by relying on three Minnesota cases, State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000); State v. Clifton, 701 N.W.2d 793, 798 (Minn. 2005), and State v. Jorgenson, 758 N.W.2d 316, 326 (Minn. App. 2008). None of them supports appellant's position because they are all distinguishable.

In Duncan, "the fact that the record [was] silent as to whether the defendant wanted the instruction [did] not mandate a new trial." 608 N.W.2d at 558. Duncan challenged convictions of first-degree and second-degree criminal sexual conduct with a nine-year-old girl and a ten-year-old girl, each of whom testified. Id. The supreme court observed that, "in light of the fact that the central issue in the case was the credibility of the girls' statements, the jury instructions [including 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." Id. Appellant relies on this observation. But unlike the girls in Duncan, L.P. was not a victim; she was another defendant. Moreover, she testified that her previous accusation of appellant was a lie; appellant would presumably have confirmed, not denied, those allegations if he had taken the stand.

In Clifton, "[an] independent review of the record satisfie[d the supreme court] that [the defendant] and his attorney agreed to the instruction." 701 N.W.2d at 798. Here, it is undisputed that appellant did not personally agree to the instruction.

Appellant relies on Jorgenson for the proposition that "[r]eversal will restore confidence in the judicial process by ensuring that the choice to remain silent will not be held against defendants." But Jorgenson does not concern or even refer to the right not to testify; it concerns an erroneous instruction on the elements of terroristic threats. 758 N.W.2d at 324. This court reversed and remanded despite its view that the evidence was sufficient to support the jury's guilty verdict. Id. at 326.

Appellant has not met his burden of showing that he was substantially prejudiced by the instruction.

4. Pro Se Issues

Appellant argues in his pro se brief that he is entitled to a new trial because the district court excluded testimony from an investigator about social media messages on appellant's cellphone and because there were technical difficulties when body-camera footage was shown to the jury. Neither argument has merit.

The district court was never asked to rule on the issue of the messages because, before the defense opened its case, appellant's attorney told the district court that the witness involved "wouldn't be testifying to the [media] stuff, . . . we're not relying on that anymore." Thus, there is no decision to review.

Appellant provides no support for his view that brief interruptions during a showing of body-camera footage of L.P.'s arrest entitle him to a new trial. This court does not generally consider pro se claims unsupported by either legal authority or argument. State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002).

Affirmed.