State of Minnesota, Respondent, vs. Angel Hernandez, 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This opinion will be unpublished and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
C9-98-1165

State of Minnesota,
Respondent,

vs.

Chad Edward Danberry,
Appellant.

Filed April 6, 1999
Affirmed in part, reversed in part, and remanded
Lansing, Judge

Blue Earth County District Court
File No. KX972080

Michael A. Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Ross E. Arneson, Blue Earth County Attorney, 410 South Fifth Street, Mankato, MN 56002 (for respondent)

Steven P. Russett, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Willis, Judge.

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

LANSING,

Judge

In an appeal from conviction for aiding and abetting motor-vehicle theft and receiving stolen property, Chad Danberry alleges fundamental evidentiary and prosecutorial trial error and challenges his designation as a career offender. Neither the witnesses' nor the prosecutor's comments constituted reversible error, and we affirm the conviction but, because the career offender statute does not apply, we reverse and remand the sentence.

 

FACTS

A jury found Chad Danberry guilty of aiding and abetting the theft of a snowmobile and receiving three snowmobiles stolen from a Mankato home. Neighbors alerted the homeowner, who called police to report the theft shortly before 2 a.m. Police observed a truck's tracks, footprints from the truck's tracks to the place where the snowmobiles had been stored, and snowmobile tracks extending from the storage point.

While the police were following the snowmobile tracks, they received a report of reckless snowmobile driving in an adjacent area. Reporting to that area, the police saw one of the stolen snowmobiles abandoned in a field and the other two snowmobiles, one with a passenger in addition to the driver, heading toward a highway. As the snowmobile with the passenger passed in front of a squad car, the officer noted that one snowmobiler was wearing a brown jacket and the other a blue jacket.

The police were unable to follow the snowmobiles, but found them abandoned a short time later. Following footprints from one snowmobile, an officer found Danberry wearing a blue jacket and lying face-down in the snow behind shrubbery. An hour and a half later, police found Chad Landwer, Danberry's co-defendant, walking in a wooded area and wearing a brown jacket.

Landwer, who was granted limited immunity, identified Danberry as the passenger on the stolen snowmobile that Landwer had been driving. The jury rejected Danberry's defense that he was unaware the snowmobiles were stolen. Following conviction and sentencing, Danberry brought this appeal (1) asserting prejudicial error in an officer's testimonial reference to Danberry's invoking his right to counsel and similar error in the prosecutor's questioning of his co-defendant about the absence of witnesses to corroborate the co-defendant's testimony; and (2) contesting his sentencing status as a career offender.

 

D E C I S I O N

I

Danberry's challenge to his conviction rests on a question and an answer during the testimonial portion of the trial. Danberry asserts that a police officer's answer and a prosecutor's question injected prejudicial constitutional error into the proceedings and a new trial is required.

The testimony of a police officer included a comment that police attempted to interview Danberry, but "he refused to speak with us until he had his attorney." Danberry's attorney did not object to the answer or request a curative instruction. The prosecutor's question was asked not of Danberry, but of Landwer, Danberry's co-defendant. During inquiry about the two other men with them on the snowmobiles, the prosecutor asked, "Well, they would be pretty important witnesses for you in your trial. How come you haven't tracked them down?" The court sustained an objection based on relevancy. Later, during closing arguments, the prosecutor commented on Landwer's failure to track down witnesses.

A defendant's exercise of his right to an attorney may not be used against him at trial. Miranda v. Arizona, 384 U.S. 436, 468, 86 S. Ct. 1602, 1624 n.37 (1966); State v. Juarez, 572 N.W.2d 286, 290 (Minn. 1997). Failure to make a timely objection to the admission of evidence generally bars our review on appeal. Minn. R. Evid. 103(a); State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998). An exception to the general rule applies for plain error affecting substantial rights. State v. Ferguson, 581 N.W.2d 824, 836 (Minn. 1998); see Minn. R. Evid. 103(d); Minn. R. Crim. P. 31.02. An error is plain error if there is a "reasonable likelihood that it substantially affected the verdict." Ferguson, 581 N.W.2d at 836 (citing State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990).

Although the police officer's statement was improper, we see no likelihood that it affected the verdict. The evidence at trial was almost conclusive: the three snowmobiles were indisputably stolen; the theft required four people (three to ride the snowmobiles and one to drive the truck away); Danberry fled police even though the squad had its emergency lights activated; he was discovered by tracking his footprints from a stolen snowmobile; and he was clearly positioning himself to avoid detection. Danberry's account varied only by his claim that he did not know the snowmobiles were stolen. The potential prejudice, on these facts, is not equivalent to prejudice to credibility when the evidence consists only of two divergent accounts of the same event for which there are no witnesses or confirming circumstantial evidence. See State v. Roberts, 296 Minn. 347, 353, 208 N.W.2d 744, 747-48 (1973).

The second alleged evidentiary error, the prosecutor's question and statement about failure to call witnesses, would be constitutional error if directed at Danberry, rather than his co-defendant, Landwer. See, e.g., State v. Caron, 300 Minn. 123, 126-27, 218 N.W.2d 197, 199-200 (1974). Even if we assume that the comments reflected on Danberry, the comments were limited, related only to Landwer's credibility, and must be viewed in light of the testimony of nine witnesses who presented strong evidence of guilt. See State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993) (finding a brief mention of defendant's failure to call witnesses was not prejudicial). In addition, a "defendant's failure to object or to request curative instructions weighs heavily" in determining if the misconduct was prejudicial. Caron, 300 Minn. at 127, 218 N.W.2d at 200. Danberry did not object to the prosecutor's comments in the closing argument and objected only to the relevancy of the prosecutor's question. The question and comment did not constitute prejudicial error requiring a new trial.

 

II

The district court found that Danberry was a career offender as defined by Minn. Stat. § 609.152 [1] and increased his sentence from the presumptive sentence of 27 months executed (based on a criminal history score of seven) to 51 months' imprisonment.

The career offender statute permits the district court to impose an aggravated durational departure up to the statutory maximum if

the offender has more than four prior felony convictions and * * * the present offense is a felony that was committed as part of a pattern of criminal conduct.

Minn. Stat. § 609.152, subd. 3 (1996); see Minn. Stat. § 609.1095, subd. 4 (1998) ("the offender has five or more prior felony convictions"). Danberry does not dispute that his current offense is a felony that could be considered part of a pattern of criminal conduct, but he asserts that he does not have "more than four prior felony convictions" as defined by the statute. He bases this argument on the definition of "prior conviction" provided in the career offender statute. "Prior conviction" is defined in that section as

a conviction that occurred before the offender committed the next felony resulting in a conviction and before the offense for which the offender is being sentenced under this section.

Minn. Stat. § 609.152, subd. 1(c) (1996); see Minn. Stat. § 609.1095, subd. 1(c) (1998) (containing identical language).

At the time of sentencing, Danberry had six previous felony convictions based on five prior acts. The offense and conviction dates are as follows:

Offense

Offense Date

Conviction Date

Motor Vehicle Theft

8/20/94

12/13/94

Second-degree Burglary

3/3/95

5/4/95

Third-degree Burglary

7/21/95

3/5/96

Motor Vehicle Theft

8/4/95

10/31/95

Escape

8/15/95

11/28/95

Criminal Damage to Property

8/15/95

2/29/96

Danberry maintains that because he was convicted of the last four offenses only after all four offenses had been comitted, none of these four convictions occurred before he committed the next felony, and consequently none of these count as a "prior conviction" under the statute. Thus, even though all six of Danberry's convictions preceded the offense on which he is currently being sentenced, the four would count as only one felony committed before his current offense. In its brief, the state concedes that Danberry has correctly interpreted the statute and requests that the case be remanded for resentencing.

The interpretation of a statute is a question of law subject to de novo review on appeal. Lolling v. Midwest Patrol, 545 N.W.2d 372, 375 (Minn. 1996). The primary object in statutory interpretation is to ascertain and effectuate the intent of the legislature. Minn. Stat. § 645.16 (1998). When the intention of the legislature is clearly manifested by plain and unambiguous language, no construction is necessary or permitted. Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274 (Minn. 1995). When the provisions of a statute are not clear, a reviewing court should interpret the statute consistently with the purpose of the act. Minn. Stat. § 645.16; Tuma v. Commissioner of Econ. Sec., 386 N.W.2d 702, 706 (Minn. 1986).

The dispositive question is whether the section's definition of "prior conviction" applies to the phrase "more than four prior felony convictions." Although the issue is not free from doubt, we conclude that it does.

The reasons weighing against applying the definition are that the phrases are not identical; the specific term "prior conviction" does appear in one other place in the section; and to fully incorporate the definition of "prior conviction" would make "felony" redundant in the phrase "more than four prior felony convictions" because, by definition, a "prior conviction" is a prior felony conviction.

But the reasons in favor of applying the "prior conviction" definition are more consistent with the canons of statutory interpretation. The stated purpose of the definition is to give specific meaning to the terms used in the section. Minn. Stat. § 609.152, subd. 1 (1996) ("As used in this section, the following terms have the meanings given."). In construing statutes, "the singular includes the plural; and the plural, the singular." Minn. Stat. § 645.08(2) (1998). And penal provisions of a statute must be strictly construed. Otis v. Mattila, 281 Minn. 187, 199, 160 N.W.2d 691, 700 (1968).

Applying the definition of "prior conviction" to "more than four prior felony convictions" limits the countable convictions to those occurring sequentially.[2] This sequencing allows a defendant five full "postconviction opportunities for reform" before subjecting him to sentencing as a career offender. See State v. Spears, 560 N.W.2d 723, 728 (Minn. App. 1998) (interpreting similar language to require sequential convictions under specific sex offender statutes), review denied (Minn. May 28, 1997). Counting only sequential convictions also excludes use of multiple convictions that arise from a one-day crime spree or aggressive prosecutorial charging on a continuous course of conduct. Although an argument could be made that it is the actual number of convictions that should govern, rather than the fortuitous calendaring of the convictions, "more than four prior felony convictions" can be reasonably read to include the section's definition of "prior conviction."

 

Affirmed in part, reversed in part, and remanded.

[1] The legislature repealed Minn. Stat. § 609.152 in 1998, but enacted nearly identical language codified as Minn. Stat. § 609.1095 (1998). 1998 Minn. Laws c. 367, art. 6, §§ 2, 7, 16.

[2] This court, in construing a different enhancement provision based on prior convictions, has implied that the career offender statute does require that the prior criminal acts and convictions be sequential. See State v. Hanson, 583 N.W.2d 4, 7 n.4 (Minn. App. 1998) (rejecting defense argument that assault statute was analogous to career offender statute in requiring sequential acts and convictions), review denied (Minn. Oct. 29, 1998).