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UNPUBLISHED CRIMINAL OPINIONS FROM THE MINNESOTA COURT OF APPEALSA06-1556State of Minnesota, Respondent, vs. Emmanuel Gordon Anim, Appellant. WRIGHT, Judge In this challenge to his conviction of driving while impaired (test refusal), appellant contends that the constitutional standard established by the United States Supreme Court in Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769 (1996), has proven ineffective in combating discriminatory police tactics, and he urges us to adopt a different legal standard. We affirm. = = = = A06-2219 State of Minnesota, Respondent, vs. Darryl W. Lidel, Appellant. PORITSKY, Judge Appellant Darryl Wayne Lidel challenges his convictions of second-degree assault and three counts of aiding and abetting first-degree burglary. Because the district court erred by failing to define the term “assault” in its jury instructions, thereby failing to instruct the jury that intent is an element of assault, we reverse appellant’s convictions and remand for a new trial. = = = = A06-2319 State of Minnesota, Respondent, vs. Robert Floyd Welch, Appellant. PORITSKY, Judge Appellant Robert Floyd Welch challenges his convictions of six counts of felony harassment, arguing that: (1) the district court abused its discretion by admitting Spreigl evidence of three prior criminal-sexual-conduct convictions; (2) the prosecution committed prejudicial misconduct; and (3) the district court abused its discretion by imposing three consecutive sentences. Because we conclude that the district court abused its discretion by admitting Spreigl evidence and that Welch was thereby prejudiced, we reverse and remand. = = = = A07-174 State of Minnesota, Respondent, vs. Lamar Lance Hamilton, Appellant. JOHNSON, Judge A Hennepin County jury found Lamar Lance Hamilton guilty of third-degree criminal sexual conduct for raping his 17-year-old niece. On appeal, Hamilton argues that the district court erred by (1) refusing to grant his motion to dismiss on the basis of his Sixth Amendment right to a speedy trial; (2) admitting DNA testimony; (3) striking a juror for cause; and (4) answering a question from the jury when Hamilton was absent from the courtroom. We conclude that there was no error with respect to any of these contentions and, therefore, affirm. = = = = A07-0487 State of Minnesota, Respondent, vs. Varney J. Kiazolu, Appellant. KALITOWSKI, Judge Following his conviction of domestic assault by strangulation in violation of Minn. Stat. § 609.2247 (Supp. 2005), appellant Varney J. Kiazolu argues that the district court’s failure to give the jury a cautionary instruction regarding two incidents of “relationship evidence” admitted at trial constituted plain error entitling him to a new trial. We affirm. = = = = A07-0587 State of Minnesota, Respondent, vs. Louis T. Kyte, Appellant. MINGE, Judge Appellant challenges his conviction of one count of possession of child pornography, claiming that the district court erred by denying his motion to suppress evidence seized from his home computer because he did not voluntarily consent to the search and seizure, and even if he did consent, police exceeded the scope of any consent given. Appellant also contends that his conviction should be reversed because the district court relied on the burden-shifting provision of Minn. Stat. § 617.247, subd. 8 (2004), which has been held unconstitutional. Because we conclude that (1) appellant voluntarily consented to the search and seizure of hard drives from his home computer; (2) police did not exceed the scope of the consent given; and (3) the district court did not improperly rely on section 617.247, subdivision 8; we affirm. = = = = A07-0602 State of Minnesota, Respondent, vs. Walter Davis, Appellant. SHUMAKER, Judge Appellant challenges the manner in which the district court inquired into and accepted his waiver of his right to counsel, arguing that the absence of a written waiver and the deficient on-the-record oral waiver was error and requires reversal of his convictions. Appellant also raises pro se issues. We affirm. = = = = A07-0656 Jamie Lee Steele, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent. HUDSON, Judge Appellant Jamie Lee Steele challenges the district court order sustaining the revocation of his driver’s license under the implied-consent law. Because the district court’s factual finding was not clearly erroneous, and because the totality of the circumstances demonstrated a reasonable basis for the investigatory stop of appellant’s vehicle, we affirm. = = = = A07-0709 State of Minnesota, Respondent, vs. Daniel Lee Nyssen, Appellant. SCHELLHAS, Judge Appellant challenges his conviction for driving after cancellation as inimical to public safety, arguing that his right to a speedy trial was violated. We find no violation and affirm. = = = = A07-0719 State of Minnesota, Respondent, vs. Jerry Lee Pilsner, Appellant. HALBROOKS, Judge Appellant challenges his convictions of second- and fourth-degree criminal sexual conduct in violation of Minn. Stat. §§ 609.343, subd. 1(g), (h)(iii), .345, subd. 1(b) (2004), on the ground of insufficient evidence. Because we conclude that the evidence is sufficient to support the convictions, we affirm. = = = = A07-0908 State of Minnesota, Respondent, vs. Matthew Nesmith, Appellant. PETERSON, Judge In this appeal from a conviction of second-degree assault, appellant argues that his guilty plea was not valid because the factual basis for the plea elicited at the guilty-plea hearing lacked facts that showed that he did not act in self-defense. We affirm. = = = = A07-1151 State of Minnesota, Plaintiff, vs. Brent Ross Wicklund, Defendant. TOUSSAINT, Chief Judge Defendant Brent Ross Wicklund was charged with two counts of criminal vehicular homicide after the truck he was driving lost its brakes, jumped a center median, and struck a motorcyclist, who died 20 days later. Police obtained a urine sample from Wicklund that revealed Wicklund had both amphetamine and methamphetamine in his system at the time of the accident. After denying Wicklund’s motion to suppress the urine sample, the district court answered the following question in the affirmative and then certified it to this court: In the course of an investigation for vehicular homicide, may a law enforcement officer obtain a non-consensual blood or urine sample from a defendant when there [are] no indicia of intoxication exhibited by the defendant? Because this question is not important or doubtful and because Wicklund has not shown sufficient reason for this court to grant discretionary review, we dismiss this appeal. = = = = A07-1180 In the Matter of the Welfare of: R.A., Jr., Child. HARTEN, Judge Appellant R.A. challenges his delinquency adjudication after being found to have committed second-degree and fifth-degree criminal sexual conduct with R, a female child. Because the district court did not abuse its discretion in excluding evidence of an order for protection (OFP) or in denying appellant’s motion for a hearing to determine if an improper interview of R tainted her evidence, we affirm those decisions; because the district court erred by failing to determine R’s competency before trial and to require on the record R’s declaration that she would testify truthfully, we reverse and remand for a new trial. |
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