State of Minnesota, Respondent, vs. Lennie Clyde White, Appellant.

State of Minnesota, Respondent, vs. Lennie Clyde White, Appellant. A05-921, Court of Appeals Unpublished, June 13, 2006.

This opinion will be unpublished and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

A05-921

 

State of Minnesota,
Respondent,
 
vs.
 
Lennie Clyde White,
Appellant.

 

Filed June 13, 2006

Affirmed in part and vacated in part

Peterson, Judge

 

Sherburne County District Court

File No. K6-04-1668

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Kathleen A. Heaney, Sherburne County Attorney, Arden J. Fritz, Assistant County Attorney, Government Center, 13880 Highway 10, Elk River, MN  55330 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

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

 

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a conviction of two counts of offering a forged check, appellant argues that (1) the Sherburne County district court erred in separately submitting to the jury a count charging conduct in Hennepin County; (2) the district court erred in allowing testimony that police were familiar with appellant, evidence of other forged checks written on the same account as the checks that appellant offered, and evidence from a police investigator that implied that appellant did not talk to the investigator; and (3) the prosecutor committed prejudicial misconduct in referring to evidence as "undisputed," in giving his personal opinion, and in arguing facts not in evidence.  We affirm in part and vacate in part.

FACTS

            On September 15, 2003, Tara Jean Lefebvre was working as a teller at the branch office of the First National Bank of Elk River located in Rogers, which is in Hennepin County.  Appellant Lennie Clyde White presented a check to Lefrebvre in the amount of $4,200, payable to himself.  The check was check number 4713 drawn on the Diversified Paving, Inc. account at First National Bank of Elk River.  After checking the appellant's identification, Lefebvre paid him $4,200 in cash.  At trial, Lefebvre identified appellant as the presenter of the check.

            On September 18, 2003, Deborah Sorenson was working as a teller at the branch office of the First National Bank of Elk River located in Elk River, which is in Sherburne County.  An individual presented to Sorenson a check, number 4711, in the amount of $4,400, payable to Lennie Clyde White.  The check was drawn on the Diversified Paving, Inc. account at First National Bank of Elk River.  After checking the presenter's identification, Sorenson paid him $4,400 in cash.

            In early October 2003, Diversified Paving's owner, Urban Schmidtbauer, received his checking-account statement from the First National Bank of Elk River and learned that the account was overdrawn.  When Schmidtbauer contacted the bank, he learned that several out-of-sequence checks had been cashed.  Schmidtbauer determined that between six and eight checks for the account had been stolen.

            Investigator Steve Miller of the Elk River Police Department was assigned to investigate forged checks drawn on Diversified Paving's account and presented in Elk River.  Miller coordinated with Investigator Jeff Burchett of the Hennepin County Sheriff's Department, who was investigating the forged checks drawn on Diversified Paving's account and presented in Hennepin County.  During the investigation, Miller learned that six checks had been stolen from Diversified Paving and made payable to five different individuals.  The six checks were presented at the Elk River and Rogers branches of the Elk River bank between September 15 and 18, 2003.  Appellant's driver's-license number matched the number that Sorenson wrote on check 4711.

A complaint was filed in Sherburne County charging appellant with one count of offering a forged check in violation of Minn. Stat. § 609.631, subds. 3, 4(2) (2002).  The complaint charged a single aggregated offense based on the check presented in Hennepin County on September 15 and the check presented in Sherburne County on September 18.

            Appellant filed a pretrial motion in limine objecting to evidence regarding (1) the other four checks and the individuals charged with offering them; and (2) Burchett's previous contacts with appellant.  The district court ruled inadmissible an exhibit about the other checks and individuals but allowed other evidence on the topic.  The district court ruled that evidence that Burchett's previous contacts with appellant occurred during criminal investigations was inadmissible but allowed evidence that Burchett knew appellant and identified him on a bank videotape.

            The case was tried to a jury.  At the close of evidence, at the district court's suggestion, respondent State of Minnesota amended the complaint to charge two separate counts of offering a forged check.  Count one alleged that appellant offered a forged check on September 15, 2003, in Hennepin County, and count two alleged that appellant offered a forged check on September 18, 2003, in Sherburne County.  The jury found appellant guilty of both counts.  The state dismissed count one, and the district court sentenced appellant on count two.  The district court ordered appellant to pay restitution for both checks.  This appeal followed.

D E C I S I O N

I.

            Appellant argues that the district court erred in allowing the complaint to be amended to charge two separate counts of offering a forged check.  The matter of allowing amendments to complaints is within the district court's sound discretion and will not be reversed absent abuse of that discretion.  Gerdes v. State, 319 N.W.2d 710, 712 (Minn. 1982) (determining whether district court abused its discretion by allowing state to amend its complaint after evidence had been presented at trial).  Whether the district court has abused its discretion in ruling on a motion to amend may turn on whether it was correct in an underlying legal ruling.  See Fabio v. Bellomo, 504 N.W.2d 758, 761-62 (Minn. 1993) (explaining that whether district court erred in denying leave to amend complaint turned on whether district court correctly interpreted law governing claim sought to be added).

            Appellant was initially charged with one count of offering a forged check in violation of Minn. Stat. § 609.631, subd. 3 (2002), which states, "A person who, with intent to defraud, offers, or possesses with intent to offer, a forged check, whether or not it is accepted, is guilty of offering a forged check and may be sentenced as provided in subdivision 4."  Under subdivision four, a defendant "convicted under subdivision 2 or 3 may be sentenced . . . to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both, if . . . the aggregate amount of the forged check or checks is more than $2,500."  Minn. Stat. § 609.631, subd. 4(2) (2002).

            In any prosecution under this subdivision, the value of the checks forged or offered by the defendant in violation of this subdivision within any six-month period may be aggregated and the defendant charged accordingly in applying the provisions of this section.  When two or more offenses are committed by the same person in two or more counties, the accused may be prosecuted in any county in which one of the checks was forged or offered for all of the offenses aggregated under this paragraph.

 

Id., subd. 4(4) (2002).

            Because appellant offered more than one check in a six-month period, the value of the checks could be aggregated, and he could be charged according to the total value of all the checks that he offered.  Also, because he offered checks in both Sherburne and Hennepin Counties, he could be prosecuted in either county for all the offenses that were aggregated under Minn. Stat. § 609.631, subd. 4(4).  This is what happened initially.  But when the complaint was amended, the checks were no longer aggregated, and appellant could not be prosecuted in Sherburne County for the check offered in Hennepin County because the statute only allows prosecution in Sherburne County for offenses aggregated under Minn. Stat. § 609.631, subd. 4(4).  When the checks were no longer aggregated, the special charging provision in Minn. Stat. § 609.631, subd. 4(4), no longer applied.  Consequently, the Sherburne County district court lacked jurisdiction over the Hennepin County offense, and the conviction on the Hennepin County offense was invalid.  Because the conviction was invalid, there is no basis for ordering restitution on that offense.  See Minn. Stat. § 611 A. 04 subd. 1(a) (2004) (stating that "[a] victim of a crime has the right to receive restitution as part of the disposition of a criminal charge . . . against the offender if the offender is convicted").  Accordingly, we vacate the order for restitution on the Hennepin County offense in the amount of $4,200.

            The error in amending the complaint, however, is not a basis for reversing the conviction for the check offered in Sherburne County unless the error was prejudicial.  See State v. Guerra, 562 N.W.2d 10, 13 (Minn. App. 1997) (explaining that the principle underlying the rule governing amendment of the complaint is a concern for prejudicial effect, not procedural regularity, and that the rule is intended to "protect against confusing the jury, violating due process notions of timely notice, and adversely affecting the trial tactics of the defense").

            Minn. R. Crim. P. 17.05 permits a "complaint to be amended at any time before verdict . . .  if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced."  An amendment charges a different offense if an essential element of a charged offense is affected, an extra burden is placed on the defendant, or if the object of the new offense is different.  Guerra, 562 N.W.2d at 13.  Here, the elements of the separate offenses following amendment were identical with the elements of the aggregated offense, and no extra burden was placed on appellant.  Appellant suggests that the amendment adversely affected his trial tactics, but he does not identify what he would have done differently.

            Appellant argues that creating a second count subjected him to the possibility of two felony convictions.  But before the amendment, the state agreed to dismiss one charge if appellant was convicted of both counts.  Because each check met the threshold amount of $2,500 under Minn. Stat. § 609.631, subd. 4(2), there was no possibility of prejudice to appellant.  Appellant also argues that he was prejudiced by the amendment because the state was given "two bites of the apple."  Appellant's argument on this point is unclear.  If he is referring to the fact that the original complaint required that he be found guilty of both offenses but the amended complaint created the possibility that he could be found guilty of a single offense, that possibility did not materialize here.

            Appellant argues that in seeking amendment of the complaint, the district court improperly involved itself in the prosecutor's charging decision rather than acting as an impartial decision-maker.  But under appropriate circumstances, the district court has authority to amend a complaint.  See State v. Ostrem, 535 N.W.2d 916, 925-26 (Minn. 1995) (rejecting defendant's argument that district court acted improperly by sua sponte amending complaint).  The district court's detailed explanation on the record shows that the only reason for amending the complaint was to avoid confusing the jury.  The record does not support appellant's claim of judicial bias.

            Because the record shows no prejudice to appellant resulting from the amendment, appellant is not entitled to reversal of his conviction based on the error in amending the complaint.

II.

            Evidentiary rulings are committed to the district court's discretion and will not be reversed on appeal absent an abuse of discretion.  State v. Bjork, 610 N.W.2d 632, 636 (Minn. 2000).  Appellant has the burden of showing error and resulting prejudice.  State v. Lynch, 590 N.W.2d 75, 80 (Minn. 1999).

1.         Burchett's testimony

            Both the Elk River and Rogers branches of the First National Bank of Elk River use surveillance cameras to record transactions as they occur within the bank.  At trial, surveillance-camera recordings of checks 4711 and 4713 being presented to tellers were received into evidence and played for the jury.  Also, individual frames from the recordings were reduced to still photographs and received into evidence.

            Burchett testified that he identified appellant on one of the surveillance tapes.  In establishing foundation for the identification, Burchett testified:

            Q.  Now, in your past, have you met [appellant]?

 

            A.  Yes, I have.

 

            Q.  And your interaction with him, it's my understanding, goes back to the time period of 1977 and 1978?

 

            A.  Correct.

 

            Q.  During that time period, did you talk to [appellant] on several occasions?

 

            A.  Yes, I did.

 

            Q.  So you knew his voice?

 

            A.  At that time, yes.

 

            Q.  You knew some of his mannerisms?

 

            A.  Yes.

 

            Citing State v. Jones, 277 Minn. 174, 152 N.W.2d 67 (1967), appellant argues that the district court erred in allowing Burchett to testify that he had been employed in law enforcement for almost 28 years and had met appellant and interacted with him during 1977 and 1978.  The Jones court concluded that it was improper for a state crime investigator to testify that he had been employed in law enforcement for more than 20 years and that he recognized the defendant's name when he came upon it during a burglary investigation.  The court explained:

[T]his was intended for only one purpose.  Defendant had apparently been charged with another crime some years before and had been tried and acquitted.  The question could have been intended only for the purpose of leaving with the jury the innuendo that this crime investigator was familiar with defendant and that therefore defendant was a man of bad character.

 

277 Minn. at 189, 152 N.W.2d at 78.

            The Jones opinion does not indicate that the rebuttal witness's testimony was otherwise relevant to the case.  Here, Burchett's testimony was relevant to his identification of appellant.  Burchett's testimony that he had been employed in law enforcement for almost 28 years was in response to a general background question about his involvement in investigating the Hennepin County and Sherburne County offenses.  Under these circumstances, the district court did not err in admitting Burchett's testimony about his law-enforcement experience and previous contact with appellant.

2.         Other forged checks

            Appellant argues that the district court erred in admitting over his objection evidence regarding the other four checks that were stolen from Diversified Paving and forged.  Miller testified on direct examination:

            Q.  After you had interviewed with Mr. Schmidtbauer, did you make efforts to get . . . in contact with the five people who were listed under "paid to the order" on the checks?

 

            A.  Yes, I did.

 

            Q.  Did you attempt to make personal contact with each of them?

 

            A.  Yes.

 

            Q.  Were you able to make personal contact with all five of them?

 

            A.  Yes, I was.

 

            Q.  And that included [appellant]?

 

            A.  Correct.

 

On cross-examination, appellant elicited additional details about Miller's investigation and also asked some general questions about check-forgery schemes.

            Appellant argues that the evidence regarding the other checks was irrelevant and highly prejudicial because it tended to suggest that appellant was part of a larger check-forgery scheme. We disagree.  Regarding Miller's testimony, "[a] police officer may reconstruct the steps taken in a criminal investigation, may testify about his contact with an informant, and may describe the events leading up to a defendant's arrest."  State v. Litzau, 650 N.W.2d 177, 183 n.4 (Minn. 2002) (quotation omitted).

            In addition to Miller's testimony, Schmidtbauer testified that six checks were stolen from his account, and a bank employee testified that the six checks were cashed at the Elk River and Rogers branches of the First National Bank of Elk River between September 15 and 18, 2003.  This evidence was relevant to proving that appellant knew that the checks were forged and did not obtain them innocently. 

            The evidence presented by the state did not suggest that appellant was part of a larger criminal enterprise, and the prosecutor did not make any such argument.  It was appellant's cross-examination of Miller that introduced the possibility of a forgery scheme.

3.         Miller's personal contact with appellant

            Appellant relies on State v. Beck, 289 Minn. 287, 183 N.W.2d 781 (1971), to argue that the district court erred in allowing Miller to testify that he had personal contact with appellant.  The Beck court concluded that it was error to admit testimony by a police officer "that he gave defendant a ‘Miranda warning,' which, the witness testified, included advising defendant that he had a right to remain silent and that anything he said might be used against him" when "the officer's testimony was wholly gratuitous, serving no probative purpose whatever."  183 N.W.2d at 783.

            Miller's testimony did not refer to any Miranda warning or assertion by appellant of his right to remain silent.  Miller testified only that he made personal contact with the five individuals whose names appeared under "pay to the order of" on the stolen checks.

            Appellant has failed to establish that the district court's evidentiary rulings were erroneous.

III.

            Appellant did not object to any statements in the closing argument at trial and did not request a cautionary instruction regarding the remarks.  Generally, a defendant who fails to object to the prosecutor's closing argument or to seek a cautionary instruction waives the right to have the issue considered on appeal.  State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984).  The defendant's failure to object implies that the remarks were not prejudicial.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).  Therefore, this court reviews unchallenged prosecutorial conduct for plain error, determining whether the misconduct was "so prejudicial to the defendant's right to a fair trial, that the defendant's failure to object . . . should not forfeit his right to a remedy."  Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996).  This court considers a closing argument as a whole to assess claims of prosecutorial misconduct arising from that argument.  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).

            Appellant argues that the following argument improperly characterizes the evidence as undisputed:

            Now, there is really not that much in dispute.  The judge read to you the elements of the charges and I would contend to you that you only have one issue to decide if you really cut to the chaff.

 

            The elements are, were the checks forged?  Well, we know from Mr. Schmidtbauer that he didn't give anyone permission to forge the checks.[1]  I think it's undisputed the checks were forged.  It doesn't matter if [appellant] forged them or not.  He is charged with offering the forged check.  Second, [appellant] offered the forged checks. . . . 

 

            . . . .

 

            So, really, the only issue is who offered the forged checks.  And even though there are two counts, it's really almost narrow.  Because I know you folks had a chance to watch the video.  You will see from the videos -- and here's the still photographs -- the same person offered the checks on both occasions.  You will see his glasses, the same hair, the same build. . . .

 

            The Minnesota Supreme Court has cautioned against characterizing the state's evidence as undisputed because such characterization could erroneously suggest to the jury that the defendant has an obligation to testify or call witnesses.  See State v. Schneider, 311 Minn. 566, 567, 249 N.W.2d 720, 722 (1977); State v. Jensen, 308 Minn. 377, 379, 242 N.W.2d 109, 111-12 (1976).  Repeatedly referring to evidence as undisputed can constitute error, particularly when the defendant does not testify at trial.  See State v. Streeter, 377 N.W.2d 498, 501-03 (Minn. App. 1985) (holding that the prosecutor's closing argument deprived the defendant of a fair trial when the state characterized the evidence as "undisputed" or "uncontradicted" at least eight times, focusing on defendant's failure to testify).  A single reference, although unwise, is not likely error because it does not suggest that the defendant had any obligation to call witnesses.  State v. DeVere, 261 N.W.2d 604, 606 (Minn. 1977).

            The prosecutor only used the term "undisputed" once, stating, "I think it's undisputed that the checks were forged."  The prosecutor's statement fairly characterizes Schmidtbauer's testimony and does not indicate that appellant had an obligation to call witnesses.  The remaining argument goes more to the credibility of the state's evidence than to an obligation by appellant to call witnesses.  The prosecutor can properly argue that the state's evidence is credible.  State v. Googins, 255 N.W.2d 805 (Minn. 1977).

            Appellant argues that the following argument improperly expressed the prosecutor's personal opinion and went beyond the evidence introduced at trial:

I think it's undisputed the checks were forged. . . . 

 

            . . . .

 

            And what proves beyond a reasonable doubt that he's the person that offered the checks?  I would say several items of evidence do.  And, look at them all collectively.  First of all, the procedures of the bank.  And what I like about this is we have all had experience cashing checks in banks.  And, you know, it's just an aside, but I'm amazed, based on my own experience, personal experience, that you can cash checks for four thousand some dollars like that was done in these cases.  It amazes me.  It seems when I offer a check for $200.00 they want ID; and it seems like a federal crime.  But apparently, and that's another story, but, that was done in this case.  But I think we all understand that for the clerks working at these banks who probably don't make a whole lot of money and they work very very hard, they are under a lot of stress.  We have all been eight deep in line and seen the stress these clerks are under.  You know then they get a check for this kind of money.  It's serious business. I'm sure jobs are lost over this type of situation.

 

            . . . .

 

            You also had a chance to see, and that's why we wanted you to see that whole video clip.  I know it got long watching the same pictures, but it showed the length of time that he was at the counter with [Lefebvre].  [Lefebvre] was not pregnant [when] you saw her here at trial, but she was pregnant then.  You saw how long they sat and talked.  I thought that was one of the most important parts of the video.  They talked about her; and her birth coming up; his children.  It was a very very long conversation.  And [Lefebvre] was concerned enough she had to bring her boss over.  It was an out-of-the-ordinary situation.

 

            I am betting it is not very often they try to get [hold] of an account holder while somebody is sitting at the teller desk.

 

            . . . .

 

            Now, you may ask yourself the quality of the video isn't that great, and that might be true.  How can somebody pick somebody out?  And I thought about this on my way down here this morning.  When it's somebody you don't know, that might be hard.  But change it a little bit.  Say the person on the video was somebody you knew:  Your best friend, your wife, your dad.  I could see my dad in this video.  I would pick him out in two seconds.  If it was somebody you knew, I think it would be a whole different story.  And granted, I concede it's been a long time since [Burchett] saw [appellant].  But he is also somebody he has known, spoke to, he's seen his mannerisms.  I think that's different than just looking at a stranger on these video tapes.

 

            The prosecutor may not express a personal opinion about witness credibility.  State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993).  A prosecutor's use of the phrase "I think" to begin a sentence, followed by a reference to evidence or a permissible inference from evidence, although wrong, is not always prejudicial.  State v. Prettyman, 293 Minn. 493, 495, 198 N.W.2d 156, 158 (1972).  The frequency and context of the use of this phrase is evaluated to determine whether the words are an idle cliché as opposed to a deliberate expression of personal opinion.  Id.  Here, the prosecutor's use of phrases like "I think" was always followed by a description of the evidence and was apparently attributable to carelessness rather than an effort to interject the prosecutor's personal opinion into the case.

            Appellant correctly argues that the prosecutor's statement about his personal experience in offering a $200 check went beyond the evidence in the record.  But the statement was irrelevant to appellant's guilt, and the prosecutor specifically noted that the personal story was not germane to the case.

            Any misconduct by the prosecutor did not constitute plain error.

            Affirmed in part and vacated in part.

[1] Schmidtbauer testified that he signed affidavits of forgery concerning checks 4711 and 4713 and that appellant did not have his permission to sign the checks or offer the checks at any banks.