State of Minnesota, Respondent, vs. William Jon Hogetvedt, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

  STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-175

 

State of Minnesota,

Respondent,

 

vs.

 

William Jon Hogetvedt,

Appellant.

 

Filed November 28, 2000

Affirmed in part, reversed in part, and remanded; motion granted.

Shumaker, Judge

 

Isanti County District Court

File No. K799519

 

Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Jeffrey R. Edblad, Isanti County Attorney, 555 18th Avenue Southwest, Cambridge, MN 55008 (for respondent)

 

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Anderson, Presiding Judge, Kalitowski, Judge, and Shumaker, Judge.

 

 

U N P U B L I S H E D   O P I N I O N

 

SHUMAKER, Judge

 

            Appellant William Jon Hogetvedt appeals his criminal convictions, contending that the evidence was insufficient to support the convictions and the trial judge erred in evidentiary and procedural rulings and in sentencing.  We affirm in part, reverse in part, and remand.

FACTS

 

Law enforcement officers had a warrant for the arrest of appellant William Hogetvedt.  They traced him to a house in Isanti County.  They knocked on the door and announced that they were the police.  There was no response and the officers entered the house.  After searching the house, they found Hogetvedt hiding in a waterbed drawer.

As the officers tried to arrest Hogetvedt, he struggled, kicking and injuring at least one officer.  The officers eventually subdued him.

The state charged Hogetvedt with obstructing legal process and assault against a police officer.  At his jury trial on those charges, Hogetvedt asserted self-defense.  He contended that various law enforcement officers had been harassing him because he refused to become a narcotics informant.  He testified that he had heard that fugitive task force officers were going to "get" him.  He said he knew he had no outstanding warrants and when the officers at his door failed to say they had a warrant, he thought they were there to make good on the threat to get him.

There were several conflicts between the evidence Hogetvedt offered and that presented by the state.  At the end of the trial, the jury found Hogetvedt guilty of obstructing legal process and fourth-degree assault.  The trial court imposed sentences on both convictions, applied the repeat offender statute, and departed durationally upward from the sentencing guidelines on one conviction.  Hogetvedt appealed.

D E C I S I O N

 

Sufficiency of Evidence

A review of sufficiency of the evidence is limited to a

painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict that they did.

 

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Hogetvedt claimed his actions were an act of self-defense and that the state failed to meet its burden of proving otherwise.  See State v. Harvey, 277 N.W.2d 344, 345 (holding that the burden is on the state to prove beyond a reasonable doubt the absence of justification) (Minn. 1979). The elements of self-defense are

(1) the absence of aggression or provocation on the part of the defendant; (2) the defendant's actual and honest belief that he or she was in imminent danger of death or great bodily harm; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger.

 

State v. Basting, 572 N.W.2d 281, 285-86 (Minn. 1997).  See also Minn. Stat. § 609.06, subd. 1(3) (1996).

Hogetvedt points to his move from the Twin Cities as an indication of ongoing fear of the Minneapolis police who, he claims, had threatened to "get" him.  He asserts that he was faced with deadly force when an officer opened the drawer he hid in and pointed a gun at his face.  He contends that his physical struggle with the police was an act of self-defense.

The verdict shows that the jury did not believe Hogetvedt's testimony but instead believed the state's witnesses.  See State v. Bliss, 457 N.W.2d 385, 391 (Minn. 1990) (holding credibility determinations exclusive function of jury); Moore, 438 N.W.2d at 108 (assuming jury believed testimony necessary to support guilty verdict); State v. Poganski, 257 N.W.2d 578, 581 (Minn. 1977) (recognizing jury can choose to believe part or all of witness's testimony).  Furthermore, the jury's finding is supported by the  evidence the state presented, and none of the state's witnesses was specifically impeached while both Hogetvedt and his principal witness were impeached.  Credibility was the central issue in the case and it was not unreasonable for the jury to conclude that the credible evidence established Hogetvedt's guilt and did not establish self-defense.

Sentencing

The state concedes that the trial court erred in sentencing Hogetvedt on both convictions because Hogetvedt's actions were part of a single behavioral incident.  See Minn. Stat. § 609.035, subd. 1 (1998) (stating that when a person's conduct constitutes more than one offense he may only be punished for only one of the offenses).  The state also concedes that the trial court erred in sentencing Hogetvedt as a career offender under Minn. Stat. § 609.1095, subd. 4 (1998), because only three of his convictions met the definition of prior convictions under Minn. Stat. § 609.1095, subd. 1(c) (1998).  Because Hogetvedt may properly be sentenced only on one of the offenses and may not be sentenced as a career offender, we remand for resentencing.  See State v. Spears, 560 N.W.2d 723, 728 (Minn. App. 1997) (noting remand for sentencing is necessary where the trial court erred in interpreting a statute relating to sentencing), review denied (Minn. May. 28, 1997).

Pro Se Supplemental Issues

In his pro se supplemental brief, Hogetvedt raised many additional issues.  We have carefully examined all of them and find none that would affect the outcome of the case.

As to Hogetvedt's assertion that the trial court erred in several evidentiary rulings, we note that it is the law that evidentiary rulings will  not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  In ruling on hearsay, prior incidents of conduct, disclosure of the basis for the arrest warrant, the publication of the unredacted warrant and other evidentiary matters, the trial court either properly exercised its discretion or Hogetvedt waived error by failing to object.  See State v. Landro, 504 N.W.2d 741, 746 (Minn. 1993) (holding that by failing to object at trial, defendant waives the right to object unless the error was plain error affecting substantial rights or an error of fundamental law).

The trial court's comment on voir dire about a newspaper article indicating that an officer in the case received a commendation did not relate to the merits of the case and, contrary to Hogetvedt's suggestion, is not controlled by State v. Cox, 322 N.W.2d 555, 558 (Minn. 1982) (holding that "[s]tatements of a court official about the merits of a criminal case raise a rebuttable presumption of prejudice.").  Furthermore, Hogetvedt failed to show that any juror was prejudiced because of the reference.  See State v. Drieman, 457 N.W.2d 703, 708 (Minn. 1990) (stating that reversal based on juror bias requires a showing that "the challenged juror was subject to challenge for cause, that actual prejudice resulted from the failure to dismiss, and that appropriate objection was made by appellant.") (quotation omitted).

Hogetvedt's contentions that a juror committed misconduct and that he should have been granted a Schwartz hearing are without merit.  The court instructed the jurors that sentencing and punishment were solely the prerogatives of the court.  We have no reason to believe that the jury failed to abide by that instruction in reaching its verdict.  Moreover, Hogetvedt failed to request a Schwartz hearing.  See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328 104 N.W.2d 301, 303 (1960) (establishing procedure for hearing to investigate juror misconduct); see also Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (holding that appellate courts "will not decide issues which were not raised before the district court, including constitutional questions of criminal procedure.").

We find no merit in Hogetvedt's argument that misconduct by a member of the prosecution staff requires reversal.  In response to Hogetvedt's motion for a mistrial because the staff member made prejudicial gestures and comments in front of the jury, the trial court stated:

Well, I have been watching and I have been watching the jury, and I don't believe that the jury has noted it to any particular or at all, let alone to any prejudicial effect.  So the motion is denied.

 

We have examined the record and are guided by State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996).  We "will reverse if the misconduct appears to be inexcusable and so serious and prejudicial that a defendant's right to a fair trial is denied."  The trial court's determination that prejudicial error did not occur is supported by the record.  See State v. Buggs, 581 N.W.2d 329, 339-40 (Minn. 1998) (holding that even if prosecutorial misconduct exists, the defendant is not entitled to a new trial where court determines that the misconduct was harmless beyond a reasonable doubt.).

In his brief, Hogetvedt argues that a prosecution staff member made other inappropriate comments and gestures.  The record does not contain those references and the state has moved to strike that portion of Hogetvedt's argument on appeal.  "The record on appeal shall consist of the papers filed in the trial court, the offered exhibits, and the transcript of the proceedings, if any."  Minn. R. Crim. P. 28.02, subd. 8.  We may not consider matters outside the record.  See State v. Brown, 597 N.W.2d 299, 305 (Minn. App. 1999) (stating that "[a]n appellate court may not base its decision on matters outside the record * * *"), review denied (Minn. Sept. 14, 1999).  Thus, the motion to strike is granted.

Affirmed in part, reversed in part, and remanded; motion granted.