State of Minnesota, Respondent, vs. Steven Allen Harris, Appellant.

State of Minnesota, Respondent, vs. Steven Allen Harris, Appellant. A04-640, Court of Appeals Unpublished, April 5, 2005. This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

  STATE OF MINNESOTA

IN COURT OF APPEALS

A04-640

 

State of Minnesota,
Respondent,
 
vs.
 
Steven Allen Harris,
Appellant.

 

Filed April 5, 2005 Affirmed in part and reversed in part

Peterson, Judge

 

 

Todd County District Court

File No. K402969

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Gaylord Saetre, Todd County Attorney, Joe E. Judd, Assistant County Attorney, 212 Second Avenue South, Suite 2, Long Prairie, MN  56347 (for respondent)

 

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

 

            Considered and decided by Klaphake, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

Appellant was convicted of issuing a dishonored check in violation of Minn. Stat. § 609.535, subd. 2 (2002), and interference with property in official custody in violation of Minn. Stat. § 609.47 (2002).  The district court imposed concurrent sentences of one year for the interference-with-property conviction and 90 days for the dishonored-check conviction, stayed all but 35 days, and gave appellant credit for 35 days served.  The district court also ordered appellant to pay a fine, various surcharges, and restitution and to reimburse the court administrator for witness fees.  On appeal, appellant argues that the district court erred in (1) instructing the jury on the elements of interference with property in official custody; (2) including a permissive-inference instruction in the instruction on the dishonored-check charge; and (3) requiring him to pay witness fees for the appearance at trial of two police officers.  We affirm the interference-with-property conviction, reverse the dishonored-check conviction, and reverse the order to pay witness fees.

FACTS

Appellant Steven Harris's daughter was arrested on September 20, 2002, for driving while intoxicated, and her truck was impounded and towed to a private impound lot owned by Scott and Sharon Meech.  The arresting officer served notice of forfeiture on Harris's daughter and told Scott Meech that the truck, which was registered to Harris's daughter, was subject to forfeiture. 

            On October 1, 2002, Harris went to the impound lot to retrieve the truck.  Sharon Meech testified at trial that she told Harris that she "had to call the police to get it okayed," and that Harris responded that he had already obtained permission from the chief of police to take the truck.  Meech testified that she trusted Harris's statement, and he paid the towing and impound fees with a personal check for $180.  She later learned from her husband that she should not have released the truck.

            Scott Meech testified that he went to Harris's residence the next day to retrieve the truck, which was parked in Harris's driveway and blocked in by two other vehicles.  Meech told Harris that the truck was in police custody, but Harris stated that it was his truck, and he refused to release it.  Meech then called the chief of police, who came to Harris's residence.  Harris told the police chief that he was not going to give back the truck.  The police chief told Harris that if he did not release the truck, he could be charged with a crime.  When Harris continued to refuse, the police chief told Harris that he would speak with the county attorney and left.  Several weeks later, Scott Meech retrieved the truck after the police received a call from Harris's landlord asking that it be towed off the property.

            Sharon Meech called Harris's bank after she learned that she should not have released the truck.  The bank informed her that Harris's account had insufficient funds to cover the check.  Meech testified that she deposited the check "within a few days after I had received that," but a stamp on the check indicates a November 13, 2002, deposit, which was six weeks after receipt.  The bank did not honor the check, and it was returned to the Meeches stamped "account closed."  The Meeches sent a demand for payment of the dishonored check and an affidavit of mailing to Harris by certified mail on December 2, 2002.  Sharon Meech testified that Harris never honored the check.

            The county attorney charged Harris with issuing a dishonored check and interfering with property in official custody.  Harris was tried before a jury and convicted of both offenses.  Harris appeals from the judgment, his sentence, and the order requiring him to pay witness fees.

D E C I S I O N

I.

            District courts are allowed "considerable latitude" in the selection of language for jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  "An instruction is in error if it materially misstates the law," and "it is desirable for the court to explain the elements of the offense rather than simply to read statutes."  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).  Even though a defendant did not object to jury instructions, a reviewing court can reverse if the instructions were misleading or confusing on fundamental points of law.  State v. Butler, 295 N.W.2d 658, 659 (Minn. 1980).

            Harris argues that the jury instructions did not advise the jury that one of the elements of interference with property in official custody is that he knew that the property that he took was in official custody.  The district court instructed the jury as follows:

The statutes of Minnesota provide that whoever intentionally takes any personal property held in custody by an officer or other person under process of law is guilty of a crime.  The elements of interference with property in official capacity are, first, the Defendant took personal property.  Second, the personal property taken was held in custody by an officer or other person under process of law.  Third, the Defendant intentionally took the personal property.  Fourth, the defendant's act took place on or about October 1, 2002, in Todd County, Minnesota. . . . In addition, the actor must have knowledge of those facts that are necessary to make the actor's conduct criminal and which are set forth after the word intentionally. 

 

(Emphasis added.)  See Minn. Stat. § 609.47 (2002) (interference with property in official custody).

            The element that Harris claims is missing from the jury instructionsthat he knew that the property taken was in official custodyis plainly stated in the instructions.  The court instructed the jury that Harris must have knowledge of those facts that are necessary to make his conduct criminal and that are set forth after the word intentionally.  The fact that the personal property was held in custody by an officer or other person under process of law is set forth after the word intentionally.  The instruction was not misleading or confusing, and it correctly stated the law.

            Harris argues that the instruction that the district court gave the jury regarding the dishonored-check count included a permissive-inference instruction, which he contends is impermissible under State v. Olson, 482 N.W.2d 212, 215 (Minn. 1992).  The district court instructed the jury as follows:

The elements of issuing a worthless check are first, the Defendant issued a check to Scott's Towing in payment for goods or services.  Second, the Defendant intended at the time of issuing the check that it not be paid.  In determining whether the requirement of intent has been proven beyond a reasonable doubt, you should consider all the evidence of intent.  The law allows but does not require you to find such an intent from proof beyond a reasonable doubt of the following: One, the Defendant at the time of issuing the check did not have an account with the bank, the check was drawn on.  Or two, the check having been presented to the bank within a reasonable time after it was issued, the Defendant did not have sufficient funds or credit with the bank and did not pay the check within five days of receiving notice by certified or regular mail, supported by an Affidavit of service of mailing to the address printed on the check[,] that the check had not been paid. 

 

See Minn. Stat. § 609.535, subd. 2 (2002) (acts constituting issuance of a dishonored check).

            Permissive-inference instructions are not impermissible under Olson, 482 N.W.2d at 216.  But the supreme court recently stated that

as a general rule, jury instructions advising that a particular fact may be inferred from other particular facts, if proved, should be avoided.  Such instructions are undesirable in that they tend to inject argument into the judge's charge and lengthen it unnecessarily.  Such instructions also improperly influence the jury not only by isolating particular facts but also by giving a particular step of logic the official legal imprimatur of the state. 

 

State v. Litzau, 650 N.W.2d 177, 185-86 (Minn. 2002) (citation and quotations omitted).

            In Litzau, the defendant was charged with first-degree controlled-substance crime for possession with intent to sell after police stopped him in his car and, during a consensual search of the car, found 86.5 grams of methamphetamine inside the air-cleaner housing.  Id. at 180-81 & n.2.  Without objection by the defendant, the jury was instructed as follows:

            In determining whether or not it has been proven beyond a reasonable doubt that the defendant was in knowing possession of methamphetamine, you should consider all the evidence presented.  The law allows, but does not require, you to find knowing possession from proof beyond a reasonable doubt that the defendant was the driver or in control of a passenger automobile and the methamphetamine was present in the automobile.  If you so find beyond a reasonable doubt, you may, but are not required to, find that the defendant knowingly possessed methamphetamine.

Id. at 182, 186 n.8.  The jury found the defendant guilty of first-degree controlled-substance crime, and this court affirmed the conviction.  Id. at 182.  On further review, the supreme court concluded that the cumulative effect of multiple errors, including the submission of the permissive-inference instruction, deprived the defendant of a fair trial and, therefore, reversed the conviction.  Id. at 187.

            With regard to the permissive-inference instruction, the supreme court concluded:

The instruction amounted to an intrusion on the jury's deliberative process because it effectively told the jury in this case that the judge thought there was sufficient evidence for a conviction.  It was undisputed that appellant was the driver and that methamphetamine was concealed in the body of the vehicle.  The only real issue was whether appellant knew that the vehicle contained methamphetamine.  The instruction also focused the jury on some facts, rather than all the facts. . . . Because the instruction focused the jury on two isolated facts, the instruction suggested that the jury could convict without consideration of all of the evidence; and under these circumstances, submission of the instruction was plain error.

 

Id. at 186-87.

            Litzau involved a controlled-substance offense, rather than a dishonored-check offense, but the circumstances related to the permissive-inference instruction in Litzau are otherwise indistinguishable from the circumstances related to the permissive-inference instruction given in Harris's trial.  It is undisputed that when the check was presented to the bank, Harris's account was closed, and Harris did not pay the check within five days after notice that the check had not been paid was received at the address printed on the check.  But the check was presented to the bank six weeks after it was issued, and there is no evidence that the account was closed when the check was issued.  Advising the jury that it could infer from particular facts that existed more than six weeks after the check was issued that when Harris issued the check, he intended that it not be paid, isolated those particular facts and suggested that the jury could determine Harris's intent without considering all of the evidence.  We, therefore, conclude that the supreme court's analysis of the instruction in Litzau applies with equal force to the permissive-inference instruction in this case, and that submission of the instruction was plain error.  Consequently, we reverse the dishonored-check conviction.

II.

Harris argues that because Minn. Stat. § 609.035, subd. 1 (2002), prohibits separate sentences for multiple offenses arising from the same behavioral incident, the district court erred by imposing sentences for both of his convictions.  Because we have reversed the dishonored-check conviction, there can no longer be a sentence for that conviction, and we need not address this argument.

III.

            "In a criminal action, upon conviction of the defendant, the court may order as part of the sentence that defendant shall pay the whole or any part of the disbursements of the prosecution."  Minn. Stat. § 631.48 (2002).  Review of the prosecution-costs statute involves a question of law subject to de novo review.  State v. Lopez-Solis, 589 N.W.2d 290, 292 (Minn. 1999).  If the particular costs sought are recoverable under the statute, a district court's award will not be reversed absent a clear abuse of discretion.  Id. 

Costs recoverable by the state under the statute are limited to those recoverable by a prevailing party in a civil action.  Id.  Costs that may be recovered include necessary discovery costs, witness fees, and travel expenses.  State v. Niemczyk, 400 N.W.2d 401, 404 (Minn. App. 1987), overruled on other grounds by Lopez-Solis, 589 N.W.2d at 293. 

The district court ordered Harris to pay $516.81 to the court administrator "for reimbursement of witness fees."  The court indicated to Harris that the witness fees were for the appearances at trial of two City of Staples police officers.  Harris argues that because police officers who testify at criminal trials are precluded by statute from receiving witness fees, the district court erred by ordering him to pay these fees.  We agree.

By statute, "[n]o police officer of any city shall receive any witness fee in a suit or prosecution brought in the name of the state, but any county or city may reimburse the officer for expenses actually incurred."  Minn. Stat. § 357.13, subd. 1 (2002); see also Howard v. City of St. Louis Park, 466 N.W.2d 759, 760-61 (Minn. App. 1991) (finding analogous authority in section 357.13 for determining that police officers' appearances were not reimbursable following their subpoena by driver for judicial review of implied-consent driver's-license revocation).  Under the plain language of Minn. Stat. § 357.13, subd. 1, the city police officers may not receive a witness fee in this criminal prosecution.  Therefore, we reverse the order directing Harris to pay for reimbursement of witness fees.

Affirmed in part and reversed in part.