State of Minnesota v. Terry Ross Johnson ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0621
State of Minnesota,
Respondent,
vs.
Terry Ross Johnson,
Appellant.
Filed January 12, 2015
Affirmed in part, reversed in part, and remanded
Johnson, Judge
Lac Qui Parle County District Court
File No. 37-CR-12-329
Lori Swanson, Attorney General, John Galus, Assistant Attorney General, St. Paul,
Minnesota; and
Richard G. Stulz, Lac Qui Parle County Attorney, Madison, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Reyes,
Judge.
UNPUBLISHED OPINION
JOHNSON, Judge
A Lac Qui Parle County jury found Terry Ross Johnson guilty of four counts of
criminal sexual conduct. The district court imposed four concurrent prison sentences, the
longest of which is 360 months. We conclude that the district court erred by submitting
count 3 to the jury as a second-degree offense after Johnson was acquitted of the first-
degree offense that was charged in count 3 of the complaint. We also conclude that the
district court did not err by denying Johnson’s request for appointment of a different
attorney to represent him at trial. Therefore, we affirm in part, reverse in part, and
remand for vacatur of Johnson’s sentence on count 3 and for resentencing on count 1
without consideration of the vacated prior conviction.
FACTS
In the fall of 2012, Johnson lived in Dawson with his wife and their ten children.
A local school received reports that two of Johnson’s daughters, A.R.J. and A.K.J., had
been sexually abused. The investigation led to information that Johnson’s step-daughter,
V.D., also had been sexually abused.
In December 2012, the state charged Johnson with one count of criminal sexual
conduct. The state amended the complaint four times before the case went to trial in
December 2013. The fourth amended complaint alleged four counts: (1) first-degree
criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(g) (2014), for
engaging in sexual contact with A.R.J., in 2012, when she was 15 years old; (2) second-
degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(b) (2014),
for engaging in sexual contact with V.D. between 2000 and 2002, when she was 12 to 15
years old; (3) first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342,
subd. 1(a), for engaging in sexual contact with A.K.J., between 2011 and 2012, when she
was 9 to 10 years old; and (4) first-degree criminal sexual conduct, in violation of Minn.
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Stat. § 609.342, subd. 1(a), for engaging in sexual contact with A.R.J. between 2004 and
2010, when she was 8 to 12 years old.
At trial, the state presented the testimony of A.R.J., V.D., A.K.J., and Johnson’s
wife. A.K.J. testified that Johnson touched her “private parts” with the palm of his hand,
but she did not testify that Johnson sexually penetrated her, as the state was required to
prove based on the offense alleged in count 3. See Minn. Stat. § 609.342, subd. 1(a).
After the state rested, the district court judge and counsel met in chambers. Johnson’s
attorney indicated that he did not intend to call any witnesses. The prosecutor conceded
that count 3 should be dismissed for insufficient evidence. The district court judge asked
the prosecutor, “Are you asking for any lesser included?” The prosecutor responded, “I
guess I never thought of that. I probably would ask for a lesser included.”
Later, after the defense rested, Johnson’s attorney moved to dismiss count 3. The
prosecutor conceded that there was no evidence of penetration. But the prosecutor asked
the district court to give a jury instruction on count 3 on the lesser-included offense of
second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(a).
Johnson’s attorney did not assert a double-jeopardy objection to the requested instruction
on a second-degree offense. He responded only by arguing that the evidence is
insufficient to prove the second-degree offense. The district court granted Johnson’s
motion to dismiss count 3 and, accordingly, did not instruct the jury on the first-degree
offense alleged in count 3 of the complaint. But the district court granted the state’s
request for a lesser-included instruction and submitted count 3 to the jury as a second-
degree offense.
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The jury found Johnson guilty on all four counts. The district court imposed
concurrent prison sentences of 21 months on count 2, 144 months on count 4, 91 months
on count 3, and 360 months on count 1. Johnson appeals.
DECISION
I. Double Jeopardy
Johnson argues that the district court erred by submitting count 3 to the jury as a
charge of second-degree criminal sexual conduct after dismissing the charge of first-
degree criminal sexual conduct that was alleged in count 3 of the complaint. Johnson
argues that the district court’s submission of the second-degree charge, and his resulting
conviction, violates the double-jeopardy provisions of the United States Constitution and
the Minnesota Constitution.
Because Johnson did not assert a double-jeopardy objection at trial, this court
reviews for plain error. See Minn. R. Crim. P. 31.02. Under the plain-error standard, an
appellant is not entitled to relief on an issue to which he did not object unless (1) there is
an error, (2) the error is plain, and (3) the error affects the appellant’s substantial rights.
State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). An error is “plain” if it is clear or
obvious under current law, and an error is clear or obvious if it “contravenes a rule, case
law, or a standard of conduct, or when it disregards well-established and longstanding
legal principles.” State v. Brown, 792 N.W.2d 815, 823 (Minn. 2011). An error affects
the defendant’s substantial rights “if the error was prejudicial and affected the outcome of
the case.” Griller, 583 N.W.2d at 741. If the first three requirements of the plain-error
test are satisfied, this court then considers the fourth requirement, whether the error
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“seriously affects the fairness, integrity or public reputation of judicial proceedings.”
State v. Washington, 693 N.W.2d 195, 204 (Minn. 2005) (quotation omitted).
The Fifth Amendment to the United States Constitution, which applies to the
states through the Fourteenth Amendment, declares that no person shall be “subject for
the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The
Minnesota Constitution likewise declares that “no person shall be put twice in jeopardy
of punishment for the same offense.” Minn. Const. art. I, § 7. The Minnesota Supreme
Court has “interpreted Minnesota’s Double Jeopardy Clause to be coextensive with its
federal counterpart.” Rew v. Bergstrom, 845 N.W.2d 764, 796 (Minn. 2014). Both
double-jeopardy clauses prohibit the state from re-prosecuting a person for an offense
after the person has been acquitted of that offense. See, e.g., Sanabria v. United States,
437 U.S. 54, 64, 98 S. Ct. 2170, 2179 (1978); Hankerson v. State, 723 N.W.2d 232, 236-
37 (Minn. 2006); State v. Large, 607 N.W.2d 774, 778 (Minn. 2000). Whether re-
prosecution is barred by the double-jeopardy doctrine is a question of law. State v.
Chavarria-Cruz, 839 N.W.2d 515, 520 (Minn. 2013).
In this case, it is undisputed that the first-degree charge that was alleged in the
complaint and the second-degree charge of which Johnson later was convicted are the
“same offense” for purposes of double jeopardy. See, e.g., Brown v. Ohio, 432 U.S. 161,
166, 97 S. Ct. 2221, 2225-26 (1977) (quoting Blockburger v. United States, 284 U.S. 299,
304, 52 S. Ct. 180, 182 (1932)). The double-jeopardy analysis thus turns on the question
whether Johnson was “acquitted” of the first-degree charge. Johnson relies on State v.
Sahr, 812 N.W.2d 83 (2012), in arguing that the district court’s grant of his mid-trial
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motion to dismiss was an acquittal. The facts of Sahr are fairly similar to the facts of this
case. In Sahr, the district court dismissed a charge of first-degree criminal sexual
conduct because the evidence available to the state was insufficient. Id. at 86-87. The
state requested an instruction on the lesser-included offense of second-degree criminal
sexual conduct, but the district court denied the request, thereby refusing to allow the
prosecution to proceed. Id. The supreme court upheld the district court’s rulings and
concluded that the district court’s dismissal of the first-degree charge was an acquittal on
the merits. Id. at 92. The supreme court stated, “A finding of insufficient evidence to
convict amounts to an acquittal on the merits because such a finding involves a factual
determination about the defendant’s guilt or innocence.” Id. at 90 (citing Sanabria, 437
U.S. at 59, 68-69, 98 S. Ct. at 2176, 2180-81). In this case, the state did not address Sahr
in its responsive brief.
Also relevant to the analysis are Smith v. Massachusetts, 543 U.S. 462, 125 S. Ct.
1129 (2005), and State v. Vang, 700 N.W.2d 491 (Minn. App. 2005). In each case, a trial
court granted a defendant’s motion for a directed verdict after the state had rested its
case-in-chief because the state’s evidence was insufficient. Smith, 543 U.S. at 464-66,
125 S. Ct. at 1132-33; Vang, 700 N.W.2d at 493. In each case, the trial court later
reconsidered its ruling and reinstated the previously dismissed charge after the defendant
had rested. Smith, 543 U.S. at 465-66, 125 S. Ct. at 1133; Vang, 700 N.W.2d at 493. In
each case, the jury found the defendant guilty of the reinstated charge. Smith, 543 U.S. at
466, 125 S. Ct. at 1133; Vang, 700 N.W.2d at 493. The Supreme Court held in Smith that
the mid-trial acquittal on the merits must be considered final, even if it was erroneous.
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Smith, 543 U.S. at 473, 125 S. Ct. at 1137. The Supreme Court reasoned, “any
contention that the Double Jeopardy Clause must itself (even absent provision by the
State) leave open a way of correcting legal errors is at odds with the well-established rule
that the bar will attach to a preverdict acquittal that is patently wrong in law.” Id. at 473,
1137. In Vang, this court applied Smith and reached the same result. Vang, 700 N.W.2d
at 496. Smith and Vang illustrate that a trial court may not reinstate a charge after the
trial court has ordered an acquittal on the merits and the defendant has rested. Smith, 543
U.S. at 472-73, 125 S. Ct. at 1136-37; Vang, 700 N.W.2d at 496.
In this case, the district court granted Johnson’s motion to dismiss count 3 of the
complaint because it determined that the state’s evidence was insufficient to support a
conviction of first-degree criminal sexual conduct. The district court’s ruling is similar to
the rulings at issue in Smith, Sahr, and Vang, which indicates that Johnson was acquitted
of count 3 when the district court granted his motion to dismiss. See Smith, 543 U.S. at
466-67, 125 S. Ct. at 1133; Sahr, 812 N.W.2d at 88; Vang, 700 N.W.2d at 493; see also
Evans v. Michigan, 133 S. Ct. 1069, 1074-75 (2013). Furthermore, the district court
allowed the state to proceed with its prosecution of count 3 after Johnson had rested,
which is similar to the procedural history of Smith and Vang. Smith, 543 U.S. at 465-66,
125 S. Ct. at 1133; Vang, 700 N.W.2d at 493. In light of these cases, Johnson’s
conviction on count 3 was obtained in violation of the Double Jeopardy Clause because
he was acquitted of count 3 when the district court granted his motion to dismiss and,
furthermore, because the district court reinstated count 3 after Johnson had rested. In
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Vang, this court identified three possible exceptions to the double-jeopardy bar after a
mid-trial dismissal:
a midtrial dismissal ruling will be considered final unless it
was (a) expressly qualified, or only tentatively stated, at the
time it was made, or (b) made subject to a rule or case
authority allowing the court to reconsider it [or (c)] was
reconsidered before the trial proceeded, particularly to the
defense’s presentation of its case.
Id. at 495 (citing Smith, 543 U.S. at 472-73, 125 S. Ct. at 1136-37). None of the three
exceptions applies in this case.
In its responsive brief, the state mostly avoids the issues that are necessarily part
of the double-jeopardy analysis. For example, the state argues that the district court’s
action is permitted by a rule of procedure, which states, “The court may permit an
indictment or complaint to be amended at any time before verdict or finding if no
additional or different offense is charged and if the defendant’s substantial rights are not
prejudiced.” Minn. R. Crim. P. 17.05. The state also argues that the district court’s
action is permitted by a statute that states, “Upon prosecution for a crime, the actor may
be convicted of either the crime charged or an included offense, but not both.” Minn.
Stat. § 609.04, subd. 1 (2012). The second argument is without merit because the next
subdivision of the statute expressly bars re-prosecution in the present circumstances: “A
conviction or acquittal of a crime is a bar to further prosecution of any included offense,
or other degree of the same crime.” Id., subd. 2. Both of the state’s arguments are
without merit because they fail to acknowledge that the right against serial prosecution
that Johnson is asserting is a constitutional right, which would supersede any rule or
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statute that might authorize the district court’s actions. See Dickerson v. United States,
530 U.S. 428, 437, 120 S. Ct. 2326, 2332-33 (2000). The state has not cited any case in
which re-prosecution was permitted after a mid-trial dismissal for insufficient evidence.
Thus, we conclude that the district court erred and that its error is plain in light of Smith,
Sahr, and Vang.
The third requirement of the plain-error test asks whether a district court’s plain
error affected the defendant’s substantial rights. Griller, 583 N.W.2d at 740. In this
case, Johnson would have been acquitted of count 3 if the district court had not given the
jury an instruction on second-degree criminal sexual conduct. But he was convicted of
count 3 after the district court gave the instruction in violation of the Double Jeopardy
Clause. The district court’s plain error affected Johnson’s substantial rights because he
was convicted of a criminal charge of which he previously had been acquitted.
Furthermore, Johnson’s conviction on count 3 added criminal-history points to the
sentencing calculation on his subsequent conviction on count 1. It appears that, without a
prior conviction on count 3, the presumptive guidelines sentence for count 1 would be
considerably shorter than the guidelines range that the district court considered. See
generally Minn. Sent. Guidelines § 4.B (2012). In light of the significant reduction in the
applicable presumptive guidelines sentence, we further conclude that Johnson has
satisfied the fourth requirement of the plain-error test. See State v. Little, 851 N.W.2d
878, 886 (Minn. 2014); see also United States v. Davenport, 519 F.3d 940, 947-48 (9th
Cir. 2008) (concluding that appellant satisfied fourth requirement of plain-error test with
respect to double-jeopardy argument).
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In sum, Johnson is entitled to a remedy for the district court’s plain error in
submitting count 3 to the jury after he was acquitted of the same offense. We therefore
reverse his conviction on count 3, and we remand to the district court for vacatur of his
conviction and his sentence on count 3 and for resentencing on count 1 without
consideration of the vacated prior conviction on count 3. In light of this relief, we need
not consider Johnson’s alternative argument that the district court erred by suggesting a
lesser-included-offense instruction to the prosecutor.
II. Appointment of New Counsel
Johnson also argues that the district court erred by denying his request for
appointment of a different attorney to represent him at trial.
In October 2013, Johnson wrote a letter to the district court in which he asked for
the appointment of a new public defender. His letter enumerated five reasons for his
request: (1) his public defender had not visited him during the nine months he had been in
jail, (2) his public defender had not given him a chance to submit a statement to the
district court, (3) his public defender had failed to help him with certain unspecified
issues, (4) he did not trust his public defender, and (5) he was “just not happy” with his
public defender. Approximately a week later, the district court judge responded in a short
letter. The district court stated that “[t]he court does not supervise the public defenders”
and provided Johnson with the mailing address of the chief public defender for the Eighth
District. Two days later, Johnson wrote another letter to the district court judge, again
requesting a new public defender.
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“When a defendant raises complaints about the effectiveness of appointed
counsel’s representation and requests substitute counsel, the district court must grant such
a request only if exceptional circumstances exist and the demand is timely and reasonably
made.” State v. Munt, 831 N.W.2d 569, 586 (Minn. 2013) (quotation omitted).
“[E]xceptional circumstances are those that affect a court-appointed attorney’s ability or
competence to represent the client.” State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001).
“When the defendant voices serious allegations of inadequate representation, the district
court should conduct a searching inquiry before determining whether the defendant’s
complaints warrant the appointment of substitute counsel.” Munt, 831 N.W.2d at 586
(quotation omitted). This court applies an abuse-of-discretion standard of review to a
district court’s denial of a request for appointment of new counsel. Id.
Johnson’s letter complaining about his public defender was very general and
lacking in specifics. The letter did not contain enough detail to indicate a significant
issue concerning his public defender’s competence. See Gillam, 629 N.W.2d at 449-50;
State v. Fagerstrom, 286 Minn. 295, 299-300, 176 N.W.2d 261, 265 (1970). Without
details and specifics, Johnson’s letter did not suggest “serious allegations” of the type that
are necessary to trigger a district court’s obligation to inquire further. Munt, 831 N.W.2d
at 587. Thus, Johnson has not shown that he was entitled to the appointment of a new
attorney.
III. Pro Se Arguments
Johnson has filed a five-page pro se supplemental brief. He does not make any
specific legal arguments for reversal. He seeks to draw the court’s attention to certain
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types of evidence. He also seeks to obtain additional forms of evidence, which is beyond
the relief that this court can provide on a direct appeal from his conviction. We have
thoroughly reviewed his pro se supplemental brief, and we conclude that it does not
contain any grounds for reversal.
Affirmed in part, reversed in part, and remanded.
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