State of Minnesota v. Paris Pierre Pollard ( 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This opinion will be unpublished and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
A14-1087
State of Minnesota,
Respondent,
vs.
Paris Pierre Pollard,
Appellant.
Filed June 15, 2015
Affirmed
Ross, Judge
Ramsey County District Court
File No. 62-CR-13-9061
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St.
Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Johnson,
Judge.
UNPUBLISHED OPINION
ROSS, Judge
Paris Pollard shoved his way into the apartment of a woman who had just argued
with Pollard’s mother. He learned which one of two occupants was the woman he sought,
and he chased her outside to her car and beat her head against the ground. The state
charged Pollard with first-degree burglary, and a district court found him guilty after a
bench trial. Pollard argues that we must reverse his conviction because the evidence was
insufficient to convict him of first-degree burglary and because he never properly waived
his right to a jury trial. Neither argument persuades us to reverse.
FACTS
St. Paul police officers learned of a break-in and assault at an apartment on an
evening in October 2013. Police arrived and spoke to J.K., who was injured and bleeding
from her head. J.K. said that Paris Pollard, along with two other men and Pollard’s
mother, Tracey Pollard, had barged into the apartment she shared with her roommate,
T.T. In barging in, Pollard knocked T.T. into the refrigerator. J.K. explained that she
fled and that Pollard pursued her outside, where he pushed her to the ground and
slammed her head into the concrete. Police arrested Pollard and Ramsey County charged
him with first-degree burglary. See Minn. Stat. § 609.582, subd. 1(c) (2012).
The district court conducted a bench trial. The record includes no formal waiver of
Pollard’s constitutional right to a jury trial. At a hearing two weeks before the trial,
Pollard’s attorney told the district court that Pollard had “indicated to [him] that it would
be [Pollard’s] intent to try this case to the Court and not to a jury.” The only other time a
jury-trial waiver was discussed was on the first day of the bench trial. The district court
judge then stated, “And we are here for trial. As I understand it, Mr. Pollard is waiving
the jury. We’re anticipating a Court trial this afternoon.” The parties agreed with the
judge’s assessment, and Pollard never objected.
2
J.K. testified that she was taking trash to the garbage dumpsters behind her
apartment building when she encountered her neighbor, Tracey. J.K. and Tracey started
to argue. The argument escalated. Tracey was still screaming at J.K. when J.K. went back
inside.
J.K. testified that she told T.T. about the argument. Tracey and three men soon
started knocking on the back door of J.K.’s apartment. One of the men was Tracey’s son,
Paris Pollard. As T.T. approached the door, the group opened it themselves and pushed
T.T. aside. T.T. started to call the police but Tracey grabbed the phone from her. J.K.
testified that Pollard approached and confronted her about the argument with his mother.
J.K. ran downstairs with her cell phone, got into her car, and dialed 9-1-1. Pollard
followed after her, pulled her from the car, took her cell phone, and pushed her to the
ground. Pollard repeatedly smashed J.K.’s head into the pavement, and he kicked her in
the face. T.T. went outside and yelled at Pollard, and he fled the area. J.K. and T.T.
called the police. Police arrived and an ambulance took J.K. to the hospital with head
injuries.
T.T. also testified. She said that after J.K. returned from taking out the trash she
told T.T. about her argument with Tracey. Within twenty minutes, she heard the voices of
people coming up the stairs toward their apartment. Pollard knocked on the door but then
“kind of shoved the door to come in without [T.T.’s] permission,” and he pushed her out
of the way, knocking T.T. into the refrigerator. The state introduced a photo taken after
the incident showing that the refrigerator was askew, appearing to be several inches out
of place. Pollard was followed into the apartment by his mother and two men. He
3
confronted T.T. about being disrespectful to his mother, but Tracey interrupted and
pointed out J.K. as the one she argued with. J.K. fled the apartment and Pollard followed
her downstairs. Still in the apartment, T.T. fought to retrieve her phone from Tracey. She
succeeded and she left the apartment and headed downstairs. She saw Pollard beating
J.K. T.T. testified that she screamed, and Pollard and the two other men then ran off. She
and J.K. called the police and J.K. was taken to the hospital.
The district court found Pollard guilty of first-degree burglary. It found that the
state had proven beyond a reasonable doubt that, after Pollard entered the apartment
without consent, he committed an assault. The judge stated:
[T]hat conclusion can be arrived at -- by the evidence the
State submitted about what Mr. Pollard did immediately after
entry . . . in essence, that he shoved [T.T.] out of the way, that
he shoved her so hard that he knocked her into the refrigerator
and displaced the refrigerator, and that at the time that he did
that he thought that she was a person who had disrespected
his mother.
The district court sentenced Pollard to 66 months in prison. Pollard appeals.
DECISION
Pollard challenges his conviction on two grounds. He argues that the evidence is
insufficient to sustain the conviction of first-degree burglary because the state did not
present evidence that he assaulted T.T. when he pushed her into the refrigerator. Pollard
contends alternatively that we must reverse his conviction because the district court failed
to obtain a valid waiver of his constitutional right to a trial by jury.
4
I
The state charged Pollard with first-degree burglary under Minnesota Statutes
section 609.582, subdivision 1(c) (2012). For the court to convict Pollard under this
statute, the state needed to prove that Pollard entered a building without consent with the
intent to commit a crime or that he entered a building without consent and committed a
crime while he was in the building. Minn. Stat. § 609.582, subd. 1 (2012). Because the
underlying crime alleged was assault, the state also needed to prove that Pollard assaulted
a person “within the building or on the building’s appurtenant property.” Id., subd. 1(c).
Pollard questions the sufficiency of the state’s evidence supporting the second element—
the assault—because, he argues, the state failed to present any evidence that T.T. suffered
bodily harm from his conduct. We review Pollard’s conviction to determine whether,
considering the evidence in the light most favorable to the verdict, a fact finder could
reasonably conclude that he was guilty of the offense charged. Bernhardt v. State, 684
N.W.2d 465, 476–77 (Minn. 2004).
An assault can take two forms. One form is “an act done with intent to cause fear
in another of immediate bodily harm.” Minn. Stat. § 609.02, subd. 10(1) (2012). The
other form is “the intentional infliction of or attempt to inflict bodily harm upon another.”
Id., subd. 10(2) (2012). The district court determined that Pollard assaulted T.T. when he
“shoved her so hard that he knocked her into the refrigerator and displaced the
refrigerator.” The state contends that the evidence of Pollard’s shoving T.T. is more than
sufficient to establish that Pollard intended to cause T.T. fear of bodily harm.
5
The evidence viewed in the light most favorable to the verdict supports the
conclusion that, at the very least, Pollard intended to cause T.T. to fear bodily harm when
he shoved her into the refrigerator while forcing his way into the apartment. “Intent may
be proved by circumstantial evidence, including drawing inferences from the defendant’s
conduct, the character of the assault, and the events occurring before and after the crime.”
In re Welfare of T.N.Y., 632 N.W.2d 765, 769 (Minn. App. 2001). Pollard was physically
aggressive and extremely confrontational when he entered the apartment by force, openly
angry. His conduct resulted in T.T. immediately attempting to call police. After he
pushed his way in and knocked T.T. into the refrigerator, Pollard confronted her about
disrespecting his mother—mistakenly believing that T.T. was the one who had argued
with her. When his mother told Pollard he had the wrong person, he immediately pursued
J.K., following her downstairs and violently assaulting her outside her car. These facts
support the district court judge’s reasonable conclusion that Pollard assaulted T.T. by
intentionally causing her to fear immediate bodily harm, establishing beyond a reasonable
doubt that he had committed a first-degree burglary.
The state presents alternative theories of assault to sustain the first-degree burglary
conviction, including its contention that Pollard intentionally inflicted bodily harm when
he shoved T.T. or when he beat J.K. outside. Because we conclude that the conviction
can be sustained on the district court’s finding that Pollard assaulted T.T. when he
entered the apartment and shoved her forcefully into the refrigerator, we need not reach
the alternative assault theories.
6
II
Pollard argues that his conviction should be reversed and the case remanded for a
new trial because the district court failed to obtain a valid waiver of his constitutional
right to a jury trial. A defendant can waive his right to a jury trial when the waiver occurs
“personally, in writing or on the record in open court, after being advised by the court of
the right to trial by jury, and after having had an opportunity to consult with counsel.”
Minn. R. Crim. P. 26.01, subd. 1(2)(a). The state concedes that there was no valid
personal waiver under rule 26.01, but it maintains that reversal is not required.
Because Pollard did not object to the lack of a proper jury-trial waiver before or
during his trial, we review only for plain error. See State v. Kuhlmann, 806 N.W.2d 844,
852 (Minn. 2011). To meet the plain-error standard, Pollard must show that the district
court’s decision was erroneous, that the error was plain, and that the error affected his
substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Even if Pollard
satisfies these three requirements, we will reverse his conviction only if necessary “to
ensure fairness and the integrity of the judicial proceedings.” Id.The state concedes the first two plain-error requirements, admitting that the
inadequate jury-trial waiver was plain error under State v. Little, 851 N.W.2d 878, 883–
84 (Minn. 2014). To meet the third requirement—that the error affected his substantial
rights—Pollard must show that the inadequate waiver “was prejudicial and affected the
outcome of the case.” Griller, 583 N.W.2d at 741. But Pollard argues that he is not
required to offer particularized facts to show prejudice under Little. It is true that the
Little court rejected the notion that the defendant in that case was required to offer
7
evidence “on whether he would have sought a jury trial had he been properly informed of
his rights.” 851 N.W.2d at 885. But the court did not declare that no defendant would
have to offer such evidence. Little is easily distinguished from this case. The defendant in
Little never properly waived his jury-trial right to an amended charge of first-degree
criminal sexual conduct, which “significantly increased the range of potential
punishment.” Id. at 884–85. It was unclear from the record that the defendant knew about
this charge at all before trial, and his defense counsel stated after trial that the defendant
“may not have had a full appreciation of what was happening in the days leading up to
trial because everything was moving at ‘laser light speed.’” Id. at 885. These unique facts
prevented the supreme court from assuming “that Little and his counsel fully discussed
the advantages and disadvantages of waiving a jury trial on the significantly more serious
charge of first-degree criminal sexual conduct.” Id. For this reason, the supreme court
reversed the first-degree criminal-sexual-conduct conviction and remanded the case. Id.
at 886.
Pollard’s circumstances are quite different and do not promote the same outcome.
The record does not suggest that Pollard was ever unaware of the charges he faced. Nor
does it include any circumstances that cast any doubt on the assumption that Pollard and
his attorney discussed Pollard’s constitutional right to a jury trial before he opted for a
bench trial. See State v. Fields, 279 Minn. 374, 377, 157 N.W.2d 61, 63 (1968) (“[I]n the
absence of contrary evidence, there is a presumption that appointed counsel consulted
with defendant and advised him of his rights.”). Pollard makes no other argument tending
to show that he would have chosen a jury trial if the district court had required an express
8
waiver of that right. Because Pollard did not show that the inadequate waiver affected his
substantial rights, he does not satisfy the plain-error standard. We affirm his conviction.
Affirmed.
9