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UNPUBLISHED CRIMINAL OPINIONS FROM THE MINNESOTA COURT OF APPEALSA07-0195State of Minnesota, Respondent, vs. Sean M. Ancel, Appellant. JOHNSON, Judge Lakeville police officers followed Sean M. Ancel and his cousin, Joshua, as they broke into two homes in one evening. Officers arrested the two men shortly thereafter and found stolen property in their possession. Because it was dark at the time of the burglaries, however, the officers could not see which of the two men actually entered the homes. At Ancel's trial, his cousin testified for the prosecution that Ancel was the one who had entered the homes and taken the stolen property. A Dakota County jury found Ancel guilty. On appeal, Ancel raises two issues. He argues that the district court erroneously admitted evidence of his prior contacts with police officers, evidence that he was under surveillance, and evidence of his prior incarceration. He also argues that he is entitled to a new trial because the district court judge was improperly involved in plea negotiations. Although the plea negotiations did not result in a guilty plea, Ancel argues that the district court judge became angry with him in the process and, thus, was biased against him. We conclude that the evidence of Ancel's prior contacts with police and the police surveillance was admitted in error. Therefore, we reverse and remand for a new trial. = = = = A07-0235 State of Minnesota, Respondent, vs. Anthony Carmen Masso, III, Appellant. WRIGHT, Judge Appellant challenges his conviction of aiding and abetting a sale of crack cocaine, arguing that (1) the admission of a lab report as testimonial hearsay violated his confrontation rights; (2) the admission of the unredacted audio recording of the controlled buy was plain error; (3) the evidence was insufficient to support the guilty verdict; and (4) the prosecutor committed prejudicial misconduct by referring to an uncharged offense. We affirm. = = = = A07-0281 State of Minnesota, Respondent, vs. Xang Yang, Appellant. SHUMAKER, Judge Appellant Xang Yang challenges his convictions of possession of a firearm by an ineligible person and possession of methamphetamine, a fifth-degree controlled-substance offense, arguing that the district court erred in denying his motion to suppress evidence obtained as a result of a warrantless entry, that the district court erred by limiting the testimony of defense witnesses, that the prosecutor committed misconduct constituting plain error during closing arguments, and that the conviction of possession of a firearm by an ineligible person violated his right to due process. Because we conclude the evidence obtained as a result of the warrantless entry should have been suppressed, we reverse. It is not necessary to reach the other issues. = = = = A07-0290 State of Minnesota, Respondent, vs. Perry Shawn Hardesty, Appellant. STONEBURNER, Judge Appellant challenges his conviction of and sentence for first-degree attempted aggravated robbery, arguing that: 1) the prosecutor committed prejudicial misconduct; 2) he was denied his rights to represent himself and to a speedy trial; 3) the district court abused its discretion by denying his motion for a new trial based on newly discovered evidence; and 4) the evidence does not support the jury's finding that he is a career offender. Appellant also argues that his attorney was ineffective. Because the record on appeal is not sufficient to permit review of appellant's ineffective-assistance-of-counsel claim, we preserve that issue for a postconviction proceeding. Because appellant's other claims do not warrant reversal or a new trial, we affirm. = = = = A07-0467 State of Minnesota, Respondent, vs. Dawn Marie Daniel, Appellant. CONNOLLY, Judge Appellant challenges her theft convictions, arguing that (1) the evidence is insufficient, (2) it was reversible error to admit evidence of a prior conviction for impeachment purposes, and (3) the district court erred in calculating her sentence. Because the evidence is sufficient to support her convictions and because it was not reversible error to admit evidence of her prior felony conviction for impeachment purposes, we affirm her convictions. But because the circumstances surrounding the imposition of appellant's sentence are too ambiguous to allow meaningful review by this court, we remand to the district court for clarification. = = = = A07-0476 State of Minnesota, Respondent, vs. Cheri Facchin, Appellant. PETERSON, Judge In this appeal from a conviction of offering a forged check, appellant argues that (1) the district court erred in admitting for impeachment purposes evidence of prior convictions for controlled-substance offenses and receiving stolen property; (2) the prosecutor committed misconduct by shifting the burden of proof, disparaging appellant's defense, giving a personal opinion of appellant's guilt, and attacking appellant's character; and (3) the evidence was insufficient to prove the element of intent to defraud. We affirm. = = = = A07-0534 State of Minnesota, Respondent, vs. Thomas Mackrell, Appellant. SCHELLHAS, Judge Appellant challenges his conviction of refusal to submit to a chemical test and driving after cancellation, arguing that the stop of his vehicle violated his Fourth Amendment rights and that he received ineffective assistance of counsel at his trial. Because we conclude that there was reasonable articulable suspicion to stop appellant's vehicle and that appellant has failed to show that he received ineffective assistance of counsel, we affirm. = = = = A07-0544 State of Minnesota, Respondent, vs. Todd Sutton, Appellant. SCHELLHAS, Judge Appellant challenges his conviction of and sentence for second-degree assault. Appellant argues that there is insufficient evidence to support the jury's finding that he intended to cause the victim fear of immediate bodily harm and that the district court failed to fully exercise its discretion when it denied appellant's motion for a downward dispositional departure and did not consider the possibility that appellant's physical impairment might make him more likely to be victimized in prison. Because the evidence supporting the jury's finding of intent is sufficient and the district court did not abuse its discretion in sentencing appellant, we affirm. = = = = A07-0706 State of Minnesota, Respondent, vs. Marc Wade Fylstra, Appellant. SCHELLHAS, Judge Appellant challenges a probation condition that prevents all contact with children, including appellant's own children, except as approved by appellant's probation officer in conjunction with his sex-offender treatment. Appellant asserts three challenges to the probation condition: (1) the district court abused its discretion by imposing a probation condition that is not reasonably related to the purposes of sentencing and unduly restricts his liberty; (2) his right to procedural due process was violated; and (3) the district court abused its discretion by imposing a probation condition that was defined by a non-judicial officer. We conclude that the district court did not err and affirm. = = = = A07-707 State of Minnesota, Respondent, vs. Trevor Schroepfer, Appellant. WILLIS, Judge Appellant challenges his conviction of second-degree driving while impaired, arguing that the evidence was insufficient to support the conviction. We affirm. = = = = A07-0791 State of Minnesota, Respondent, vs. James J. Bookwalter, Appellant. CONNOLLY, Judge Appellant challenges his convictions, arguing that (1) appellant's conduct that the district court relied on to support its finding of guilt on the kidnapping charge was "merely incidental" to the conduct that the district court relied on to support its finding of guilt on the first-degree-assault charge and (2) he received ineffective assistance of counsel because his trial counsel inaccurately advised him that he could not be subject to consecutive sentencing if convicted. We affirm. = = = = A07-0845 In the Matter of the Welfare of: A. X. T., Child. COLLINS, Judge On appeal from his conviction of theft from person and his adjudication as delinquent, A.X.T. argues that the district court (1) was biased and thus violated A.X.T.'s right to a fair trial, (2) received inadmissible evidence, (3) refused to appoint an interpreter for a witness, and (4) erred by imposing and staying an out-of-home placement. A.X.T. also challenges the sufficiency of the evidence. Because the district court did not exhibit bias or abuse its discretion and the evidence was sufficient to convict A.X.T., we affirm. = = = = A07-1007 Troy Wade Breckenridge, petitioner, Appellant, vs. State of Minnesota, Respondent. PETERSON, Judge In this appeal from the summary denial of his petition for postconviction relief, appellant argues that he is entitled to (1) a Schwartz hearing, (2) an evidentiary hearing on his claim that his counsel's failure to request a Schwartz hearing was ineffective assistance, and (3) a new trial because the prosecutor engaged in misconduct during trial. We affirm. = = = = A07-1163 State of Minnesota, Respondent, vs. Christopher Michael Walsh, Appellant. SHUMAKER, Judge On appeal from denial of his petition for postconviction relief, appellant argues that he should have received a downward departure from the presumptive sentence and contends, in his pro se supplemental brief, that he did not receive effective assistance of counsel. Because there are no substantial and compelling circumstances to support a departure from the presumptive sentence and because appellant has failed to demonstrate any merit to his ineffective-assistance-of-counsel claim, we affirm. = = = = A07-1186 State of Minnesota, Respondent, vs. Lamiea Kerschbaum, Appellant. WORKE, Judge Appellant challenges the district court's denial of her motion to withdraw her guilty pleas to two counts of kidnapping and one count of solicitation of prostitution, arguing that (1) she was not properly represented by counsel, (2) the district court was not objective in considering her motion, and (3) the state failed to show that it would be prejudiced by having to prosecute her. We affirm. |
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