State v. Nelson

State of Minnesota, Respondent, v. Steven Douglas Nelson, Appellant.

A18-1482

STATE OF MINNESOTA IN COURT OF APPEALS

September 3, 2019

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed

Reyes, Judge

Pine County District Court

File No. 58-CR-16-1381

Keith Ellison, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St. Paul, Minnesota; and

Reese Frederickson, Pine County Attorney, Pine City, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Maria Villalva Lijó, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Bjorkman, Judge; and Rodenberg, Judge.

UNPUBLISHED OPINION

REYES, Judge

In a direct appeal from his convictions of second- and third-degree burglary, bribery, and fleeing a police officer, appellant argues that (1) his burglary convictions must be reversed because the state failed to present sufficient evidence to prove beyond a reasonable doubt that he intended to permanently deprive the victim of possession of her property; (2) the district court committed reversible error because its jury instructions amounted to a directed verdict; and (3) his attorney provided ineffective assistance of counsel by conceding appellant's guilt on an element of the offense without his consent or acquiescence. We affirm.

FACTS

In December 2016, N.O. came home one evening to discover that her house had been rummaged through. When law enforcement arrived at N.O.'s house, a man, unknown to N.O., drove in at the same time. Deputies identified him as appellant Steven Douglas Nelson. Appellant informed law enforcement that he had broken into the house to pick up communication equipment for his work with the Drug Task Force, though he has never worked with the agency in any capacity.

On appellant's person, deputies found a fake sheriff's badge, a collapsible baton, and a key for N.O.'s house. Deputies also found an employee badge belonging to N.O.'s sister in appellant's vehicle. When Deputy Pepin told appellant he was under arrest, appellant offered to perform oral sex if Deputy Pepin agreed to let him go.

After a trial, a jury found appellant guilty of second- and third-degree burglary, fleeing a police officer, and bribing a public officer. The district court sentenced appellant to 57 months in prison with the Commissioner of Corrections. This appeal follows.

DECISION

I. The state presented sufficient evidence to sustain appellant's convictions of second- and third-degree burglary.

Appellant argues that the state failed to present sufficient evidence to sustain his convictions because it did not prove that he intended to permanently deprive N.O. of the possession of her property. We are not persuaded.

When reviewing a claim of insufficient evidence, we carefully review the record "to determine whether the evidence and reasonable inferences drawn therefrom, viewed in a light most favorable to the verdict, were sufficient to allow the jury to reach its verdict." Lapenotiere v. State, 916 N.W.2d 351, 360-61 (Minn. 2018) (quotation omitted). Intent is a state of mind, based on inference, and is generally proved by circumstantial evidence. State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997). When the challenged conviction is based, at least in part, on circumstantial evidence, we apply a two-step analysis. State v. Harris, 895 N.W.2d 592, 598-601 (Minn. 2017). First, we identify the circumstances proved "by resolving all questions of fact in favor of the jury's verdict." Id. at 600. Second, we independently consider the "reasonable inferences that can be drawn from the circumstances proved." Id. at 601. The circumstances proved must, as a whole, "be consistent with a reasonable inference that the accused is guilty and inconsistent with any rational hypothesis except that of guilt." Id. We 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).

To convict appellant of second-degree burglary, the state needed to prove that appellant entered N.O.'s house without consent and either committed or intended to commit a crime while in the building. Minn. Stat. § 609.582, subd. 2(a) (2016). To convict appellant of third-degree burglary, the state needed to prove that appellant entered N.O.'s pole barn without her consent and with the intent to steal or commit any felony or gross misdemeanor or that he stole or committed any felony or gross misdemeanor. Id. at subd. 3. The state alleged that appellant committed the crime of theft while in N.O.'s house, which occurs when someone intentionally and without claim of right takes, uses, transfers, or retains possession of movable property of another without consent and with the intent to deprive the owner permanently of possession of the property. Minn. Stat. § 609.52, subd. 2(a)(1) (2016).

The circumstances proved are as follows. On December 21, 2016, N.O. arrived home and noticed some of her belongings piled up by her front door and in her living room. She called her father and the police to come to the house. When her father arrived, they saw that someone had been in her pole barn and had left piles of items in there.

As the police arrived at N.O.'s farm, a man who police identified as appellant drove into the driveway at the same time. Neither N.O. nor her father knew appellant or why he was there. Appellant got out of his truck and told officers that he was there to pick up some communication equipment from the property because he had just recently started working with the Drug Task Force. Deputy Pepin patted appellant down and found a collapsible baton, a toy sheriff's deputy badge, and a key for N.O.'s house. Deputy Pepin handcuffed appellant while he and another deputy searched the house.

In the house, the deputies observed all the drawers rummaged through, a broken door with the windows shattered out of it, a pile of N.O.'s belongings by the front door, and the house in disarray. They also found a set of keys that they later determined belonged to appellant.

Back outside, appellant told Deputy Pepin that he broke the window of one of the doors to get in, piled up belongings, and found a key to get back into the house to get the belongings. Deputy Pepin brought appellant to the car in the pole barn and saw that appellant had piled more items.

Deputy Pepin placed appellant under arrest and tried to walk appellant out of the pole barn to his squad car. Appellant began resisting. He then offered to perform oral sex if Deputy Pepin let him go. Deputy Pepin put him in the back of another deputy's squad car but decided to transfer appellant to his own squad to transport him to jail. Appellant took off running but Deputy Pepin detained him. The deputies performed an inventory search on appellant's vehicle and found an employee badge belonging to N.O.'s sister that had been in N.O.'s vehicle in the pole barn.

Appellant previously reached out to an agent with the Drug Task Force about working as an informant but has never worked with them in any capacity. The agent told appellant specifically not to do anything until he could meet with appellant and until he formally became part of the informant program. The Drug Task Force never designated N.O.'s home as part of any sort of training for appellant as an informant.

The circumstances proved support a reasonable inference that appellant committed theft.

Appellant contends that the circumstances support a rational theory that he returned to N.O.'s house to explain himself, repair the window, and return the property.¹ But appellant told the officers that he came back to N.O.'s house to retrieve the rest of the property that he had left in piles, not to return the property he already took. Appellant's claimed intent to give N.O.'s property back to her is not a circumstance proved. Further, appellant spoke to N.O.'s father, and he made no attempt at returning the key or the employee badge or offer to repair the broken window. Appellant's alternative theory of innocence is not reasonable.

II. The district court's jury instruction on bribery did not amount to a directed verdict.

Appellant contends that, by instructing the jurors that, "the defendant offered, gave or promised to give Deputy Pepin oral sex," the district court relieved the state of having to prove that appellant's offer constituted "any benefit, reward, or consideration" under the bribery statute. We disagree.

Appellant did not object to the jury instruction at trial. We review unobjected-to jury instructions for plain error. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).² Weconsider three factors: (1) whether error exists, (2) that is plain, and (3) that affected the appellant's substantial rights. State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012). If all three prongs are met, we consider whether the error affected the "fairness and integrity of the judicial proceedings." Id. (quotation omitted). A district court has "considerable latitude" in selecting jury instructions. State v. Gatson, 801 N.W.2d 134, 147 (Minn. 2011). A jury instruction is erroneous if it materially misstates the law. State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).

A person is guilty of bribing a public officer if he "offers, gives, or promises to give, directly or indirectly, to any person who is a public officer or employee any benefit, reward or consideration to which the person is not legally entitled with intent thereby to influence the person's performance of the powers or duties as such officer or employee." Minn. Stat. § 609.42, subd. 1(1) (2016). The district court gave the following instructions to the jury:

The elements of bribery are: First, the defendant offered, gave, or promised to give Deputy Pepin oral sex. Second, Deputy Pepin was a public officer. A law enforcement officer is a public officer. Third, Deputy Pepin had no legal right to

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