State of Minnesota, Respondent, vs. Monique Nicole Alexander, Appellant.

State of Minnesota, Respondent, vs. Monique Nicole Alexander, Appellant. A05-1859, Court of Appeals Unpublished, January 9, 2007.

This opinion will be unpublished and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

A05-1859

 

State of Minnesota,

Respondent,

 

vs.

 

Monique Nicole Alexander,

Appellant.

 

Filed January 9, 2007

Affirmed

Lansing, Judge

 

Hennepin County District Court

File No. 04021662

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Mike Freeman, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

John Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Lansing, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            A jury found Monique Alexander guilty of two counts of theft by swindle and not guilty of another theft-by-swindle count.  In this appeal Alexander challenges her convictions on two grounds.  First, she argues that the jury instructions for count II violated her right to a unanimous verdict.  Second, she argues that the district court's response to a jury question effectively amended the complaint, in violation of the separation-of-powers doctrine.  Because the jury instructions did not allow a nonunanimous verdict, and the judge's answer to the jury question did not amend the complaint, we affirm.

F A C T S

            Monique Alexander was employed as a teller at the Soo Line Credit Union in Minneapolis from August 2001 until February 2004.  During an audit, the credit union discovered that Alexander had been involved in a number of suspicious transactions.  After further investigation, the credit union terminated Alexander's employment and provided its investigatory information to the police. 

            Alexander was charged with three counts of theft by swindle.  Count I alleged that she took more than $2,500 from JT, a vulnerable adult, in violation of Minn. Stat. § 609.52, subd. 2(4) and subd. 3(2).  Count II alleged that she "obtained property or services, of a value in excess of Two Thousand Five Hundred Dollars ($2,500.00), from Cyrilla Diers, Kenneth Brunner, John Swanstrom and Heidi Swanstrom, by swindling them using artifice, trick, device or other means" in violation of Minn. Stat. § 609.52, subd. 2(4), and subd. 3(2).  Count III alleged that she took more than $500 from Jane Chan and Karen Rodberg in violation of Minn. Stat. § 609.52, subd. 2(4) and subd. 3(3)(a).

            The state presented evidence that Alexander used her position to take money from credit union customers.  Specifically, the state presented testimony that, during December 2003 and January 2004, Alexander took about $900 once from Brunner's account, twice from John and Heidi Swanstrom's account, and four times from Diers's account.

            During deliberations, the jury sent the judge a question about count II.  Over a defense objection, the district court then instructed the jury as follows:

Good morning.  You say, do we need to find that the evidence for all four victims listed in Element One credible?  The answer to that is no.  Or your question is, or since the dollar amount for Brunner, or John and Heidi Swanstrom is greater than $2,500 is that sufficient?  And the answer to that is, if you find beyond a reasonable doubt that the defendant took property of a value in excess of $2,500 from any combination of the four named people that is sufficient to prove Element Two of Count Two, Theft by Swindle Over $2,500.

 

The jury then acquitted Alexander of count I and found her guilty of counts II and III.  She appeals her convictions.

D E C I S I O N

I

            The jury returned a verdict finding Alexander guilty of the charge stated in count II.  Alexander contends, however, that the jury instructions permitted improper factual disagreements among the jurors that violated her right to a unanimous verdict.

            We review jury instructions "in their entirety to determine whether they fairly and adequately explain the law [that applies] to the case."  State v. Peterson, 673 N.W.2d 482, 486 (Minn. 2004).  "A jury instruction is erroneous if it materially misstates the law."  State v. Goodloe, 718 N.W.2d 413, 421 (Minn. 2006).  A verdict in a criminal case must be unanimous.  Minn. R. Crim. P. 26.01, subd. 1(5).

            The district court instructed the jury that its verdict on each count must be unanimous.  Alexander contends that, in responding to the jury's question that arose during deliberations, however, the district court violated her right to a unanimous verdict by instructing the jury that it could select any combination of victims in order to reach the monetary threshold alleged in count II.  We disagree and conclude that the record does not provide factual support for a claim that the district court's response to the jury's question resulted in an instruction that permitted improper factual disagreement among the jurors.

            The district court's answer to the jury's question must be read in context.  When the district court instructed the jury that "any combination of the four named people . . . is sufficient," this instruction was based on a specific question from the jury.  The jurors  asked whether they could find Alexander guilty if they found that Alexander only swindled Brunner and the Swanstroms (three of the four named people).  The question did not pertain to whether individual jurors could disagree about who Alexander swindled.  To the contrary, the jury's question was predicated on agreement about which three victims had been swindled.  Taken in their entirety, the jury instructions correctly stated the law and required the jurors to unanimously agree that Alexander committed each of the thefts that the jury determined to be part of the aggregated $2,500 monetary threshold.

II

            Alexander's second ground for reversal is that the jury instructions constructively amended the complaint and that the district court therefore violated the separation-of-powers doctrine.  As charged, count II alleged that Alexander "obtained property or services, of a value in excess of Two Thousand Five Hundred Dollars ($2,500.00), from Cyrilla Diers, Kenneth Brunner, John Swanstrom and Heidi Swanstrom, by swindling them using artifice, trick, device or other means."

            The fundamental assumption underlying Alexander's argument on violation of the separation of powers is that count II, as it was originally charged, required the jury to find that Alexander swindled all four people.  Alexander contends that the complaint's use of "and" required the jury to find that all four of the people listed had been victims.  This argument is based on an implausible reading of the complaint.  Using the conjunction "and" indicates that multiple thefts are being aggregated.  In these circumstances, the conjunction "or" would incorrectly suggest that each theft was to be considered separately rather than aggregately.  But, in this context, the use of "and" does not require that the jury must find that Alexander swindled every person on the list so long as the jury finds that persons on the list who were swindled lost property or services that, in the aggregate, totaled more than $2,500.  Therefore, the original complaint permitted the jury to convict based on thefts from any combination of the four people named in count II, and the assumption underlying Alexander's separation of powers argument is inaccurate.

Because count II, as charged, did not require the jury to find that Alexander swindled all four people, the district court's response to the jury question did not constructively amend the complaint.  The district court's answer simply clarified the original charge.  Count III was similarly not constructively amended.  Because there was no constructive amendment of the complaint, Alexander's claim of violation of the separation-of-powers doctrine has no factual support in the record.

III

            Alexander's pro se supplemental brief states, in the issues section, that she was denied the right to a fair trial because the district court judge sang Happy Birthday to a prospective juror during jury selection.  Although we recognize that a trial on criminal charges is a grave circumstance that requires appropriate courtroom decorum, it is difficult to envision how a judge's recognition of a prospective juror's birthday would create prejudice or interfere with a fair trial.  

            In any event, we are unable to address the issue because Alexander has failed to submit authority or argument to address this claim.  An issue that is raised on appeal, but unsupported by any argument, is waived.  McKenzie v. State, 583 N.W.2d 744, 746 n.1 (Minn. 1998).  It is not enough to tangentially identify an issue.  In re Olson, 648 N.W.2d 226, 228 (Minn. 2002).  The absence of argument results in waiver. 

            Alexander does present argument on her claim that the charges against her were not supported by probable cause.  But an argument on probable cause that is not timely presented before trial is no longer relevant following conviction on the charges, when the jury has found proof beyond a reasonable doubt.

            Affirmed.