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UNPUBLISHED CRIMINAL OPINIONS FROM THE MINNESOTA COURT OF APPEALSA07-1034Chao Yang, petitioner, Appellant, vs. State of Minnesota, Respondent. HARTEN, Judge In this postconviction proceeding, appellant Chao Yang challenges his two second-degree murder convictions, arguing that the postconviction court abused its discretion in denying his claim of newly-discovered evidence, that the translation of his trial was inadequate, and that his waiver of the right to testify was unknowing and involuntary. Because we see no abuse of discretion and conclude that the translation was adequate and that appellant knowingly and voluntarily waived his right to testify, we affirm. = = = = A07-0953 State of Minnesota, Respondent, vs. Craig Kennard Bahneman, Appellant. WRIGHT, Judge Appellant challenges the denial of his motion to suppress evidence, arguing that the district court erred by concluding that the hot-pursuit exception to the warrant requirement justified the police officers' warrantless entry into his residence. We affirm. = = = = A07-0855 State of Minnesota, Respondent, vs. Sally El-Bazi, Appellant. STONEBURNER, Judge Appellant challenges her convictions of first- and second-degree burglary, arguing that the evidence, which she asserts consisted only of the uncorroborated testimony of accomplices, is insufficient to sustain the convictions. Because the accomplice evidence was corroborated, we affirm. = = = = A07-0716 State of Minnesota, Respondent, vs. Daniel Lee Thurmer, Appellant. COLLINS, Judge On direct appeal from a conviction of third-degree burglary, appellant argues that he is entitled to withdraw his Alford plea because the factual basis developed at the plea hearing consisted only of his admission that the evidence was adequate to sustain a conviction, and the district court failed to independently analyze the sufficiency of the evidence to ensure the accuracy of the plea. We reverse and remand. = = = = A07-0571 State of Minnesota, Respondent, vs. Joseph Spencer Keller, Appellant. COLLINS, Judge Following a bench trial, appellant was convicted for violation of an order for protection. Appellant challenges the validity of his waiver of the right to a jury trial, arguing that the district court (1) did not first provide him an opportunity to consult with counsel, and (2) misinformed him that he had a "constitutional right" to a court trial. We affirm. = = = = A07-0474 State of Minnesota, Respondent, vs. Mitchell Neff, Appellant. COLLINS, Judge On direct appeal from the convictions of three counts of second-degree criminal sexual conduct, appellant argues that the district court erred in accepting his Alford plea and in denying his motion to withdraw his plea. Because the district court erred by accepting appellant's Alford plea without first establishing a sufficient factual basis on the record, appellant's plea was inaccurate and invalid. We reverse and remand. = = = = A07-0432 State of Minnesota, Respondent, vs. Thomas A. Isberg, Appellant. TOUSSAINT, Chief Judge Thomas A. Isberg appeals his conviction of fourth-degree driving while impaired. He disputes the existence of probable cause to support the request that he submit to chemical testing. Because we agree with the district court that probable cause existed, we affirm. = = = = A07-0406 State of Minnesota, Respondent, vs. M.A.D., Appellant. JOHNSON, Judge When he was 17 years old, M.A.D. pleaded guilty to first-degree criminal sexual conduct, and the district court designated him an extended jurisdiction juvenile (EJJ). The district court stayed his adult sentence of 144 months of imprisonment on the condition that he successfully complete a sex-offender treatment program at a juvenile correctional facility. He failed, however, to complete the program. As a result, the district court revoked the stay and executed the 144-month adult sentence. On appeal, M.A.D. challenges the district court's findings concerning the revocation and its ultimate decision to revoke the stay. We conclude that the district court did not err and, therefore, affirm. = = = = A07-0390 State of Minnesota, Respondent, vs. George Maurel Carroll, Appellant. MINGE, Judge Appellant challenges his conviction of theft by swindle, arguing that the evidence is insufficient to prove that he took his employer's property or that he intended to swindle his employer. We affirm. = = = = A07-0199 State of Minnesota, Respondent, vs. Adam Allen LaFountain, Appellant. WRIGHT, Judge Following a jury trial, appellant was convicted of third-degree criminal sexual conduct for having consensual sex with a 13-year-old girl. At the time of the offense, appellant was 19 years old. See Minn. Stat. § 609.344, subd. 1(b) (2004) (engaging in sexual penetration with person at least 13 but less than 16 years of age, when actor is more than 24 months older). On appeal, appellant argues that the evidence was insufficient to support the conviction because he proved by a preponderance of the evidence the affirmative defense of mistake of age. See id. (providing that "it shall be an affirmative defense, which must be proved by a preponderance of the evidence, that the actor believes the complainant to be 16 years of age or older"). Appellant also challenges the district court's rejection of his request for a downward dispositional departure and its imposition of the presumptive guidelines sentence of 36 months' imprisonment. We affirm. = = = = A07-0192 State of Minnesota, Respondent, vs. Anthony Baumgartner, Appellant. HUDSON, Judge On appeal from his conviction of second-degree burglary of a banking business, appellant argues that (1) a money-exchange business does not fall within the meaning of the statutory definition of the term "banking business" as used in Minn. Stat. § 609.582, subd. 2(b) (2004); (2) the evidence was insufficient to support the jury's verdict; and (3) the district court committed plain error by failing to sua sponte instruct the jury on an element of the offense. Because (1) a money-exchange business falls within the purview of Minn. Stat. § 609.582, subd. 2(b); (2) the evidence was sufficient to support the jury's verdict; and (3) appellant waived any argument regarding the jury instructions by failing to object at trial, we affirm. = = = = A07-0031 State of Minnesota, Respondent, vs. Johnny Urman, Appellant. WRIGHT, Judge Appellant challenges the district court's denial of his motion to suppress evidence obtained during the warrantless search of the vehicle he was driving, arguing that (1) the vehicle stop was unjustified and pretextual, and (2) the search was unsupported by probable cause. We affirm. = = = = A06-2481 State of Minnesota, Respondent, vs. Antone Owens, Appellant. WRIGHT, Judge Appellant challenges his conviction of receiving stolen property, arguing that (1) the district court abused its discretion by admitting testimony of appellant's subsequent bad act under Minn. R. Evid. 404(b), and (2) there is insufficient evidence in the record to support his conviction. We affirm. = = = = A06-2462 State of Minnesota, Respondent, vs. John Eric Simon, Appellant. MINGE, Judge Appellant challenges two convictions of first-degree criminal sexual conduct and concurrent 144-month sentences imposed for those convictions, alleging that (1) the prosecutor committed misconduct by eliciting vouching testimony from witnesses and improper prejudicial testimony from an expert witness; (2) the district court erred by admitting evidence of similar acts; and (3) his conviction for count one (first-degree criminal sexual conduct: single act, position of authority) is an included offense of count two (first-degree criminal sexual conduct: multiple acts, significant relationship). We affirm with respect to the evidentiary questions. However, because we conclude that, as charged, appellant's conviction for count one (single act) was included in count two (multiple acts), we reverse and vacate appellant's conviction for count one and remand for resentencing. = = = = A06-1970 State of Minnesota, Respondent, vs. Alexander Mayers, Appellant ROSS, Judge This appeal arises from a near-fatal shooting in a Burnsville apartment after three men looking for a resident who owed one of them money apprehended the resident's roommate, beat him at gunpoint, then shot him in the chest at point-blank range. Alexander Mayers was tried for first-degree attempted murder, first-degree assault, aiding and abetting first-degree burglary, aiding and abetting attempted aggravated robbery, and aiding and abetting second-degree assault. The jury found Mayers guilty of aiding and abetting second-degree attempted murder, first-degree assault, aiding and abetting first-degree burglary, and aiding and abetting second-degree assault. Mayers appeals his conviction, contending that the district court violated the Minnesota Rules of Criminal Procedure and his due process rights when it instructed the jury on aiding and abetting, and he argues that the evidence was insufficient to convict him. Because the additional aiding-and-abetting instruction did not violate the Minnesota Rules of Criminal Procedure or Mayers's due process rights and the evidence supports the jury's verdict, we affirm. = = = = A06-1590 State of Minnesota, Respondent, vs. Joshua A. Krueth, Appellant. HARTEN, Judge Appellant Joshua Krueth challenges his conviction of second-degree intentional murder, asserting that the district court abused its discretion in admitting evidence of a second homicide for the purpose of identification, in denying his requests for a Frye-Mack hearing on bullet trajectory analysis, and in not instructing the jury on the lesser-included offense of unintentional felony murder. Appellant also challenges his sentence, asserting that the district court abused its discretion in departing from the presumptive sentence because the aggravating factors are inadequate to support the upward departure. There being no abuse of judicial discretion in the conviction or the sentence, we affirm. = = = = A06-0084 State of Minnesota, Respondent, vs. Seta Samarea Hines, Appellant. LANSING, Judge Seta Hines was convicted of third-degree controlled substance crime for the sale of cocaine. In a petition for postconviction relief, Hines raised an equal-protection challenge that is based on her argument that the sale of cocaine is also proscribed by the fourth-degree controlled-substance-crime statute. We conclude that the statutes do not overlap. In addition, we conclude that, independent of our determination that the statutes do not overlap, Hines was not denied equal protection. Accordingly, we affirm. = = = = A07-1904 In the Matter of the Welfare of: L.L.K., Appellant. ROSS, Judge This appeal concerns whether the district court appropriately certified 17-year-old L.L.K. to stand trial as an adult for first-degree aggravated robbery and attempted first-degree criminal sexual conduct after he allegedly cornered, detained, and robbed a woman in her car and then attempted to force her to perform oral sex on him at gun point. L.L.K. appeals the district court's certification decision, highlighting that he has attention deficit hyperactivity disorder and arguing that his minimal programming history and the adequacy of both punishment and programming under extended juvenile jurisdiction prohibit him from being prosecuted as an adult. He argues that the district court erroneously concluded that he failed to rebut the presumption of adult certification and that it abused its discretion by considering unduly prejudicial evidence. Because the district court thoroughly and properly applied the statutory factors for certification for prosecution as an adult and because L.L.K. did not rebut the presumption of adult certification, we affirm. = = = = A07-0852 In the Matter of the Welfare of: B.M.K., Child. COLLINS, Judge On appeal from an adjudication of delinquency for first-degree criminal damage to property based on stipulated facts, appellant argues that the district court erred in denying his motion to suppress his statement to a police officer because (1) appellant was in custody at the time that he made the statement and did not receive a Miranda warning; and (2) even if he was not in custody, appellant's statement was involuntary. We affirm = = = = A07-0797 In the Matter of the Welfare of: R. S. B. PORITSKY, Judge Appellant R.S.B. was adjudicated delinquent on one count of possession of a dangerous weapon on school property and one count of underage possession of a pistol, both felonies. See Minn. Stat. §§ 609.66, subd. 1d(a), 624.713, subds. 1(a), (2) (2006). The court's dispositional order included the following conditions, among others: R.S.B. was placed on probation, he was ordered to complete a six-week out-of-home placement, and he was required to complete a gun-offender program. On appeal, R.S.B. contends: (1) the out-of-home placement is not supported by either the record or the court's findings; (2) the out-of-home placement was error because it was "dictated" by executive-branch policy; and (3) the court erred in adjudicating R.S.B. delinquent and imposing dispositional orders on both offenses charged in the petition. We conclude: (1) the court's out-of-home placement is supported by the record, but the court's written findings are insufficient; (2) the record is insufficient to address R.S.B.'s argument that the disposition was dictated by the executive branch; and (3) the court properly adjudicated R.S.B. delinquent and imposed a dispositional order on both offenses. Therefore, we affirm in part, reverse in part, and remand. = = = = A07-640 Daniel Stephen Kaine, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent. JOHNSON, Judge Daniel Stephen Kaine's driver's license was revoked after he was arrested for driving while impaired and failed a breath test. Kaine sought judicial review, arguing that he was denied his right to counsel before he submitted to the breath test. The district court sustained the revocation of his license based on its finding that Kaine did not make a good-faith and sincere effort to contact counsel. The district court's finding was supported by evidence that, despite being given access to a telephone and two telephone books for 20 minutes, Kaine did not place a telephone call or make any effort to do so. We conclude that the district court's finding is not clearly erroneous and that the district court's legal conclusion is correct. Therefore, we affirm. = = = = A07-0626 David Leroy Burandt, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent. HALBROOKS, Judge Appellant challenges the revocation of his driver's license, arguing that the district court erred in concluding that probable cause existed for his arrest. Because we conclude that the district court did not err, we affirm. |
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