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UNPUBLISHED CRIMINAL OPINIONS FROM THE MINNESOTA COURT OF APPEALSA07-0454State of Minnesota, Respondent, vs. Gary L. Underdahl, Appellant. WRIGHT, Judge Appellant challenges the district court's decision to depart durationally from the presumptive guidelines sentence, arguing that the aggravating factors submitted to the jury are not appropriate bases for departure. Appellant also challenges his underlying felon-in-possession-of-a-firearm conviction, arguing that the district court committed reversible error by (1) ordering a unitary trial on the issue of guilt and the existence of aggravating factors for sentencing; (2) improperly admitting certain unobjected-to evidence; and (3) depriving him of the right to counsel with respect to his new-trial motion. In a pro se supplemental brief, appellant challenges the sufficiency of the evidence. We affirm the conviction, reverse the sentence, and remand. A07-0603 State of Minnesota, Respondent, vs. Jason Edward Roach, Appellant. ROSS, Judge Jason Roach appeals from his conviction of interfering with an emergency call. Roach argues that the testimonial evidence was insufficient to support the conviction in light of the chaotic and emotional atmosphere in which the witnesses perceived the incident and the large amount of alcohol that they had consumed. Because the evidence, viewed in the light most favorable to the conviction, is sufficient to allow a jury to find Roach guilty, we affirm. A07-0750 State of Minnesota, Respondent, vs. Julious Holly, Appellant. ROSS, Judge Julious Holly appeals his conviction of fifth-degree controlled substance crime, challenging the denial of his pretrial motion to suppress evidence of cocaine that officers obtained during his arrest. Holly argues that the evidence of cocaine recovered after his arrest should have been suppressed because the officers lacked probable cause to arrest him for misdemeanor loitering with intent to sell drugs. Although the district court was correct that the officers had a reasonable, articulable suspicion to stop Holly and investigate, the record establishes that the officers did not stop and investigate but instead immediately arrested Holly. Because the officers lacked probable cause to arrest Holly for misdemeanor loitering with intent to sell drugs, we reverse the denial of his motion to suppress, and we remand. A07-0761 State of Minnesota, Respondent, vs. Marion Joseph Ash III, Appellant. HALBROOKS, Judge Appellant challenges his conviction of two counts of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(d) (2006), on the ground that the evidence is insufficient to support his conviction. In addition, appellant argues that his conviction should be reversed because (1) the district court refused to allow him to present evidence of the victim's prior sexual conduct, (2) the district court abused its discretion by allowing the victim's special-education teacher to testify about the victim's IQ, and (3) the prosecutor committed prosecutorial misconduct. We affirm. A07-0836 State of Minnesota, Respondent, vs. Michael Dale Benson, Appellant. MUEHLBERG, Judge On appeal from his convictions for escape from custody, criminal damage to property, burglary, and theft of a motor vehicle, appellant argues that he is entitled to a new trial because of repeated references to his status as a person subject to civil commitment as a sexual psychopathic personality. He also argues that he should be resentenced because the district court improperly applied the Hernandez method to enhance his criminal history score for each successive offense, but all of his convictions arose from a single behavioral incident or course of conduct. Appellant raises other pro se issues, including a mental illness defense. Because appellant stipulated to his status as a sexual psychopathic personality and references to this status would not have changed the trial outcome under the plain error test, the district court did not err by failing to exclude references to appellant's status, and we affirm on this issue. Because appellant has not raised pro se issues that merit action by this court, we also affirm as to those issues. However, because appellant's burglary conviction should not be used to enhance his criminal history score for the theft of a motor vehicle conviction when the burglary was committed for the sole purpose of accomplishing the theft, we reverse his theft sentence and remand for resentencing. A07-0838 State of Minnesota, Respondent, vs. Dorsey Howard, Appellant. LANSING, Judge The district court determined, on stipulated facts, that Dorsey Howard was guilty of illegal possession of a firearm. On appeal, Howard argues that the district court erred by denying his pretrial motion to suppress the firearm because the search-warrant application that police were executing when they saw the firearm in plain view relied on information obtained under a previous invalid warrant. Because the district court judge who issued the initial search warrant had a substantial and valid basis for concluding that probable cause existed and Howard has failed to establish an adequate legal or evidentiary basis for his alternative challenges to the warrants, we affirm. A07-0968 State of Minnesota, Respondent, vs. Steven Todd Parker, Appellant. MINGE, Judge Appellant challenges his convictions of first-degree burglary, second-degree burglary, theft of motor vehicle, and fleeing a police officer in a motor vehicle and the sentences for those convictions. Appellant argues that (1) insufficient evidence supports his conviction of first-degree burglary; (2) the district court erroneously sentenced him to consecutive maximum prison terms on each conviction; and (3) the sentences were manifestly excessive. In his pro se supplemental brief appellant repeats the arguments of his counsel and raises additional issues including ineffective assistance of counsel. We affirm in part, reverse in part, and remand. A07-1126 State of Minnesota, Respondent, vs. David Devon Bryant, Appellant. A07-1126 State of Minnesota, Respondent, vs. David Devon Bryant, Appellant. WILLIS, Judge Appellant challenges his conviction of terroristic threats, arguing that the evidence was insufficient to support the conviction because he did not make the threat with the intent to cause extreme fear. We affirm. A07-1250 James Edgar Austin, petitioner, Appellant, vs. State of Minnesota, Respondent. HALBROOKS, Judge In this postconviction proceeding, appellant challenges the district court's refusal to allow him to withdraw his guilty plea to two counts of criminal sexual conduct. He contends that the failure to inform him of the statutorily mandated five-year conditional-release period that accompanies conviction of such a crime rendered his decision to plead guilty invalid. We affirm. A07-1303 State of Minnesota, Respondent, vs. Daniel Lee Thurmer, Appellant. KALITOWSKI, Judge Pursuant to a plea agreement in which he agreed to be sentenced based on the presentence investigation report, appellant Daniel Lee Thurmer pleaded guilty to first-degree DWI and driving after cancellation in 2004. Appellant was subsequently sentenced to the presumptive 36-month term, but his sentence was stayed for seven years and he was placed on supervised probation. In 2007, while incarcerated on an unrelated offense, appellant requested execution of his sentence. The district court executed the sentence and informed appellant that he would be subject to five years of conditional release following his release from incarceration. Appellant now challenges the imposition of the conditional-release term, arguing that, because it was not included in the presentence investigation report from which his sentence was to derive, he is entitled to either withdraw his plea or have his sentence modified to conform to the recommended sentence. We affirm. A07-1405 In the Matter of the Welfare of: C. P. T. CONNOLLY, Judge Appellant challenges the district court's decision to adjudicate him delinquent for an offense of criminal sexual conduct in the third degree. Appellant also challenges the constitutionality of the statute requiring the lifetime registration of predatory sex offenders as applied to juveniles, arguing that it violates due process and the doctrine of the separation of powers. Because the district court did not abuse its discretion and because the statute is constitutional, we affirm. A07-1480 State of Minnesota, Respondent, vs. David Johnson, Appellant. WILLIS, Judge Following remand from this court and resentencing by the district court, appellant challenges his sentence, arguing that the district court exceeded the scope of our mandate on remand and that his sentence exaggerates the criminality of his conduct and violates the principles of proportionality, equity, and consistency in sentencing. The state has moved to strike documents from appellant's appendix. We affirm appellant's sentence and deny the state's motion as moot. A07-1484 Jerry J. Duwenhoegger, Sr., petitioner, Appellant, vs. State of Minnesota, Respondent. TOUSSAINT, Chief Judge In this appeal from a denial of postconviction relief, appellant Jerry J. Duwenhoegger, Sr. challenges his sentences for two counts of conspiracy to commit first-degree murder. He argues that the district court erred by (1) imposing separate sentences for each count of conspiracy because his actions constituted a single behavioral incident with a single criminal objective and (2) failing to make written findings. Because the district court did not abuse its discretion in sentencing appellant and because no written findings were necessary, we affirm. A07-1494 State of Minnesota, Respondent, vs. Craig Louis Johnson, Appellant. WORKE, Judge Appellant challenges his convictions of two counts of making harassing phone calls, arguing that the evidence is insufficient to show that he acted with specific intent to harass his former girlfriend. He also argues that he is entitled to a new trial because the district court failed to make written findings and because the court's oral remarks showed that it required the state to prove only general intent. We affirm. A07-1503 Ger Thao, petitioner, Appellant, vs. State of Minnesota, Respondent. WILLIS, Judge Appellant challenges the denial of his petition for postconviction relief, in which he claims prosecutorial misconduct and insufficiency of the evidence. We affirm. A07-1570 State of Minnesota, Respondent, vs. Curtis Allen Anderson, Appellant. KLAPHAKE, Judge Appellant Curtis Anderson challenges the postconviction court's denial of his petition to withdraw a guilty plea. Because the postconviction court did not abuse its discretion in finding that appellant's guilty plea was accurate, voluntary, and intelligent, we affirm. A07-1607 Stacey Lynn Mullen, petitioner, Appellant, vs. State of Minnesota, Respondent. SCHELLHAS, Judge Appellant challenges a sentence imposed for second-degree murder. She argues that the upward durational departure in the sentence was not justified by her plea agreement or the participation of three or more people in the crime. We agree that the plea agreement did not support the departure, but conclude that the district court did not abuse its discretion in relying on the participation of three or more people and affirm. A07-1804 State of Minnesota, Respondent, vs. David J. Julkowski, Appellant. KLAPHAKE, Judge Appellant David Julkowski challenges the district court's decision to revoke his probation instead of imposing an intermediate sanction. Because this court recently determined that the sentencing statute does not restrict the cumulative amount of local jail time a district court may impose as a consequence of probation violations, we agree the district court erred by concluding that it did not have discretion to impose additional local jail time as an intermediate sanction. See State v. Johnson, 743 N.W.2d 622 (Minn. App. 2008). Accordingly, we reverse and remand. A07-2426 State of Minnesota, Appellant, vs. James Anthony Smith, Respondent. MINGE, Judge The state brings this pretrial appeal to challenge the suppression of evidence, arguing that the officer's investigatory stop was justified based on the commission of what an officer believed to be a traffic violation and based on an outstanding warrant for respondent's son. Because the district court did not clearly err in determining that the stop was impermissible, we affirm. |
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