State of Minnesota v. Ian Christopher Mitchell , 2016 Minn. App. LEXIS 40 ( 2016 )

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0982
State of Minnesota,
Respondent,
vs.
Ian Christopher Mitchell,
Appellant.
Filed May 31, 2016
Affirmed in part and remanded
Schellhas, Judge
Hennepin County District Court
File No. 27-CR-03-085208
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Stauber,
Judge.
SYLLABUS
Minnesota Statutes section 609.585 (2002), which provides that “a prosecution for
or conviction of the crime of burglary is not a bar to conviction of or punishment for any
other crime committed on entering or while in the building entered,” does not authorize a
district court to enter convictions or impose sentences on multiple counts of burglary
arising from a single course of conduct.
OPINION
SCHELLHAS, Judge
Appellant argues that the district court abused its discretion by denying his mistrial
motion and seeks a new trial on charges of first-degree burglary. He also makes pro se
arguments, including that the district court erred by entering convictions and imposing
sentences on multiple counts of burglary arising from a single course of conduct. We affirm
in part and remand.
FACTS
Appellant Ian Christopher Mitchell began a dating relationship with K.K. in October
2003, which K.K. ended on November 29 in part because of conflicts about sex.1 Around
2 a.m. on November 30, Mitchell entered K.K.’s residence without her permission; when
K.K. confronted Mitchell, he physically assaulted her and fled, leaving lacerations on her
scalp and abrasions on her shoulder and knee. Within the hour, police arrested Mitchell as
he started to drive away from his residence. He had a knife in his vehicle.
Respondent State of Minnesota charged Mitchell with one count of first-degree
burglary (assault) and one count of first-degree burglary (dangerous weapon). Mitchell’s
trial resulted in a hung jury. At his second trial on both counts of first-degree burglary,
Mitchell moved for a mistrial during a break in the state’s direct examination of K.K. He
argued that K.K.’s nonresponsive answer to a question by the prosecutor resulted in
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K.K. testified that Mitchell did not respect her expressed preferences against “spanking,”
“vulgar” talk, and “being physically handled in a rough manner” during sex.
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irreparable prejudice to him. The district court denied the mistrial motion, and the jury
found Mitchell guilty as charged.
Mitchell failed to appear for sentencing in January 2005, and sentencing was
delayed for more than ten years. Mitchell appeared for sentencing in March 2015, and the
district court entered convictions on both counts of first-degree burglary and sentenced
Mitchell to 52 months’ imprisonment for each count of first-degree burglary, to be served
concurrently.
This appeal follows.
ISSUES
I. Did the district court abuse its discretion by denying Mitchell’s motion for a
mistrial?
II. Did the district court err by entering convictions and imposing sentences on
multiple counts of burglary arising from a single course of conduct?
III. Do Mitchell’s pro se arguments have merit?
ANALYSIS
I. Mistrial motion
“A mistrial should not be granted unless there is a reasonable probability that the
outcome of the trial would be different if the event that prompted the motion had not
occurred.” State v. Mahkuk, 736 N.W.2d 675, 689 (Minn. 2007) (quotation omitted).
“[Appellate courts] review the denial of a motion for a mistrial for an abuse of discretion
because the district court is in the best position to evaluate the prejudicial impact, if any,
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of an event occurring during the trial.” State v. Bahtuoh, 840 N.W.2d 804, 819 (Minn.
2013).
Mitchell’s mistrial motion was based on the following testimonial exchange:
PROSECUTOR: Now, your relationship [with Mitchell] to
[November 21, 2003,] had involved sexual relations?
K.K.: Yes, it had.
PROSECUTOR: And you were okay with that?
K.K.: Okay with what?
PROSECUTOR: You were agreeable in the course of your
relationship to have sexual relations?
K.K.: We might want to discuss this before I answer that.
PROSECUTOR: Did you have sexual relationships—
K.K.: Yes.
PROSECUTOR: —with Mr. Mitchell prior to [November 21,
2003]?
K.K.: Yes.
Mitchell argues that irreparable prejudice resulted from K.K.’s nonresponsive answer to
the prosecutor’s question whether K.K. was “agreeable in the course of [her] relationship
to have sexual relations” with Mitchell. Mitchell contends that the nonresponsive answer
“left the jury with a clear impression that the sexual encounters [between K.K. and
Mitchell] were not always consensual.” He also claims that “there was no way to minimize
the impact this had on the jury.”
But as noted by the state, a juror would not necessarily infer from K.K.’s
nonresponsive answer that Mitchell sexually assaulted K.K. during the course of their
relationship. “Agreeable” may mean “[r]eady to consent or submit,” but it may also mean
“[t]o one’s liking” or “pleasing.” The American Heritage Dictionary of the English
Language 35 (4th ed. 2006) [hereinafter American Heritage Dictionary]. Moments after
giving her nonresponsive answer, K.K. testified that sex with Mitchell included activities
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that she found disagreeable. In this context, the nonresponsive answer appears to have been
innocuous. Even if we accept Mitchell’s argument that K.K.’s nonresponsive answer
created a risk that the jury improperly considered an implied prior bad act by Mitchell, such
a risk is not grounds for a mistrial unless it is tantamount to “a reasonable probability that
the outcome of the trial would be different” in the absence of the question and answer.
Mahkuk, 736 N.W.2d at 689 (quotation omitted).
The state did not pursue a theory that Mitchell entered K.K.’s residence with an
intent to sexually assault her. Instead, the prosecutor asserted that Mitchell was “angry,
frustrated, [and] bitter” about the breakup and hypothesized that Mitchell’s motive was to
“confront,” “scare,” “threaten,” or “assault” K.K. At trial, K.K. testified that on
November 29, 2003, she ended her dating relationship with Mitchell in “a very escalated,
argumentative, accusatory conversation that ended pretty poorly.” After falling asleep that
night, K.K. awoke to see Mitchell standing in her bedroom doorway. Mitchell did not have
K.K.’s permission to enter her residence. K.K. confronted Mitchell, first verbally and then
by following him when he walked away. Mitchell then “started to come after [K.K.],”
grabbed her arm, knocked her to the ground, and hit her on the head three or four times
before fleeing. K.K. did not know whether Mitchell used an object to hit her. When the
police arrested Mitchell a short time later, they found a knife in his vehicle. The knife
belonged to K.K.’s father, with whom K.K. resided; just hours before the burglary, the
knife was in K.K.’s kitchen, and it was not in K.K.’s kitchen following the burglary. The
knife had a small smear of Mitchell’s blood on or near the handle. A sharp object consistent
with the knife caused the lacerations to K.K.’s head.
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In light of the state’s theory of the crime and the ample evidence of Mitchell’s guilt,
we conclude that no reasonable probability exists that Mitchell would have been acquitted
absent the prosecutor’s question and K.K.’s nonresponsive answer. We defer to the district
court’s evaluation of prejudicial impact, Bahtuoh, 840 N.W.2d at 819, and conclude that
the district court did not abuse its discretion by denying Mitchell’s motion for a mistrial.
II. Multiple convictions and sentences
In his pro se supplemental brief, Mitchell argues that his convictions violate section
609.04 (2002) because first-degree burglary (dangerous weapon) is an included offense of
first-degree burglary (assault). He also argues that the district court violated section
609.035 (2002) by imposing a sentence for each conviction because each conviction arose
from a single course of conduct. Although Mitchell did not argue against his multiple
convictions and sentences in district court, we address his arguments here. See Spann v.
State, 740 N.W.2d 570, 573 (Minn. 2007) (“[The supreme court] ha[s] held that an
appellant does not waive claims of multiple convictions or sentences by failing to raise the
issue at the time of sentencing.” (citing Ture v. State, 353 N.W.2d 518, 523 (Minn. 1984))).
“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. “A crime
necessarily proved if the crime charged were proved” is an “included offense.” Id. “To
determine whether an offense is an included offense falling under [section 609.04], a court
examines the elements of the offense instead of the facts of the particular case.” State v.
Bertsch, 707 N.W.2d 660, 664 (Minn. 2006).
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The elements of first-degree burglary (dangerous weapon) are (1) entry of a building
without consent; (2) entry with intent to commit a crime, or commission of a crime while
in the building; and (3) possession of a dangerous weapon “when entering or at any time
while in the building.” Minn. Stat. § 609.582, subd. 1 (2002). The elements of first-degree
burglary (assault) are (1) entry of a building without consent; (2) entry with intent to
commit a crime, or commission of a crime while in the building; and (3) assault of a person
“within the building or on the building’s appurtenant property.” Id. Since each crime
requires proof of an element that the other does not, neither crime necessarily is proved
when the other is proved. First-degree burglary (dangerous weapon) is not a lesser-included
offense of first-degree burglary (assault).
But section 609.04 does more than preclude conviction of both an offense and an
included offense. “[S]ection 609.04 bars multiple convictions under different sections of a
criminal statute for acts committed during a single behavioral incident.”2 State v.
Chavarria-Cruz, 839 N.W.2d 515, 523 (Minn. 2013) (quotation omitted). And unless a
statutory exception applies, “if a person’s conduct constitutes more than one offense under
the laws of this state, the person may be punished for only one of the offenses.” Minn. Stat.
§ 609.035, subd. 1. “[D]eciding whether the district court’s imposition of two sentences
was barred by section 609.035, subdivision 1, requires [an appellate court] to determine
first whether the conduct underlying the offenses involved a single course of conduct.”
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“Legal authorities use the terms ‘single course of conduct’ and ‘single behavioral
incident’ interchangeably.” State v. Drljic, 876 N.W.2d 350, 353 n.1 (Minn. App. 2016)
(quotation omitted).
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State v. Jones, 848 N.W.2d 528, 533 (Minn. 2014). “If so, [the appellate court] then
consider[s] whether an exception to section 609.035, subdivision 1, applies.” Id.
Here, one of Mitchell’s burglary convictions was based on Minn. Stat. § 609.582,
subd. 1(b) (dangerous weapon), and the other burglary conviction was based on Minn. Stat.
§ 609.582, subd. 1(c) (assault). The state does not contest that both convictions arose from
a single course of conduct, arguing instead that a statutory exception to the general rule
permits Mitchell’s multiple convictions and sentences. That exception provides that “a
prosecution for or conviction of the crime of burglary is not a bar to conviction of or
punishment for any other crime committed on entering or while in the building entered.”
Minn. Stat. § 609.585 (emphasis added). The state reads section 609.585 to mean that
conviction and punishment on one count of burglary does not preclude conviction or
punishment on another count of burglary arising from the same course of conduct, so long
as the two counts of burglary involve different statutory elements, i.e., each is an “other
crime.”
But the state offers little to support its reading of the statute, and we have found no
Minnesota authority that directly answers the question whether “any other crime,” as used
in section 609.585, includes another burglary crime. Existing caselaw that is not directly
on point seems to contradict the state’s reading of section 609.585. See, e.g., State v.
Holmes, 778 N.W.2d 336, 341 (Minn. 2010) (“The phrase ‘any other crime’ means a crime
that requires proof of different statutory elements than the crime of burglary.” (quoting
section 609.585)); State v. Jackson, 749 N.W.2d 353, 358 (Minn. 2008) (“Burglary is a
serious crime, and punishment is allowed for both the burglary and the crime committed in
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the dwelling.” (citing section 609.585)); State v. Hartfield, 459 N.W.2d 668, 670 (Minn.
1990) (stating that section 609.585 “contains an exception allowing sentencing for both a
burglary and one of the offenses committed during a burglary even if it could otherwise be
said that they were both committed as part of a single behavioral incident”).
In one published opinion, we affirmed multiple convictions of and sentences for
single-course-of-conduct first-degree burglary (occupied dwelling) and first-degree
burglary (assault). State v. Hodges, 384 N.W.2d 175, 178 n.1, 182–83 (Minn. App. 1986),
aff’d as modified, 386 N.W.2d 709 (Minn. 1986). We affirmed the multiple convictions
based on the multiple-victims exception to section 609.04. Id. at 182. And we affirmed the
multiple sentences without analysis, merely stating that “defendant is not entitled to
vacation of [the] sentences because burglary under section 609.585 is expressly exempted
from the provisions of section 609.035.” Id. at 183. On review, the supreme court vacated
one of the convictions, reasoning that “the [multiple-victims] exception does not allow
[multiple] burglary convictions simply because [multiple] people were present in the house
when it was burglarized.” 386 N.W.2d at 711. The supreme court did not address our
multiple-sentences decision or consider whether the multiple convictions or sentences
could be affirmed under section 609.585. Similarly, in State v. Crockson, we held that “the
district court erred by adjudicating guilt on both [counts of first-degree burglary] when they
arose from the same course of criminal conduct,” pointing to section 609.04’s bar against
multiple convictions but making no mention of section 609.585’s burglary exception. 854
N.W.2d 244, 246, 248 (Minn. App. 2014), review denied (Minn. Dec. 16, 2014).
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Focusing on the language “any other crime” in section 609.585, our independent
statutory interpretation confirms what the caselaw suggests. In interpreting a statute, “[t]he
first step is to examine the language of the statute to determine if it is ambiguous. Statutory
language is ambiguous only if, as applied to the facts of the particular case, it is susceptible
to more than one reasonable interpretation.” Dupey v. State, 868 N.W.2d 36, 39 (Minn.
2015) (citation omitted). “Other” may mean “[d]ifferent from that or those implied or
specified.” American Heritage Dictionary, supra, at 1246. Here, burglary is the crime
specified. We conclude that the only reasonable interpretation of “any other crime” is a
crime different from burglary. We therefore enforce the plain language of the statute and
remand for the district court to vacate Mitchell’s conviction and sentence as to one of the
two counts of first-degree burglary. See Dupey, 868 N.W.2d at 39 (“If the statutory
language is unambiguous, [the court] must enforce the plain meaning of the statute and not
explore the spirit or purpose of the law.”).
III. Other pro se arguments
Mitchell argues that the district court judge “impermissibly injected his personal
opinion as to what the evidence showed” by speculating that K.K.’s nonresponsive answer
indicated that “maybe she was confused about . . . whether she had ever consented to
spanking or rough talk or something like that” and by stating that “that’s how I took the
testimony.” Mitchell does not appear to argue that the judge’s statement indicated bias;
rather, his argument is that the judge improperly “expressed [his] personal opinion to the
jury as to what [K.K.] was thinking” when she gave the nonresponsive answer. But the
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record shows that the judge’s comments were made outside the presence of the jury, and
Mitchell’s complaint about the judge therefore is meritless.
Mitchell also appears to argue that the constitutional prohibition against double
jeopardy is violated by statutory exceptions to the general rule against multiple convictions
and sentences, that prosecutorial misconduct requires reversal of his convictions, and that
insufficient evidence supports his conviction of first-degree burglary (dangerous weapon).
Mitchell’s double-jeopardy and prosecutorial-misconduct arguments are forfeited as
wholly unsupported by briefing. See State v. Sontoya, 788 N.W.2d 868, 876 (Minn. 2010)
(declining to consider pro se argument where appellant cited neither record nor legal
support of argument). Any sufficiency-of-the-evidence argument is based on Mitchell’s
attempt to deny the existence of record evidence that he possessed a knife during the
burglary. But the state presented evidence that Mitchell possessed a knife when he was
arrested shortly after the burglary. The evidence also showed that the knife belonged to
K.K.’s father, with whom K.K. resided; it was in K.K.’s kitchen just hours before the
burglary, and it was not in K.K.’s kitchen after the burglary. We assume that the jury
believed the state’s evidence and view the evidence in the light most favorable to the guilty
verdict. State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014.) So viewed, the circumstantial
evidence is sufficient to prove that Mitchell possessed the knife at some point during the
burglary, because “the circumstances proved are consistent with guilt and inconsistent with
any rational hypothesis except that of guilt.” Id. (quotations omitted).
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DECISION
Because “any other crime,” as used in section 609.585, does not include another
burglary crime, the district court erred by entering convictions and imposing sentences on
multiple counts of burglary arising from a single course of conduct.
Affirmed in part and remanded.
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