State v. Brown, A18-1880

• Decision Date: 02 December 2019
• Docket Number: A18-1880
• Parties: STATE of Minnesota, Respondent, v. Anton Jermaine BROWN, Appellant.
• Court: Minnesota Court of Appeals

937 N.W.2d 146

STATE of Minnesota, Respondent,

v.Anton Jermaine BROWN, Appellant.

A18-1880

Court of Appeals of Minnesota.

Filed December 2, 2019

Keith Ellison, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Smith, Tracy M., Judge; and Peterson, Judge.^*

REYES, Judge

In this direct appeal from his convictions of first- and second-degree criminal sexual conduct following a jury trial, appellant Anton Jermaine Brown argues that the district court (1) denied his right to a speedy trial; (2) erred in imposing a lifetime conditional-release term; and (3) improperly included two Iowa drug convictions in his criminal-history score as felonies. Appellant raises numerous additional issues in his pro se supplemental brief. We affirm in part, reverse in part, and remand for resentencing.

FACTS

Afraid to go home after returning to their apartment complex after their curfews on June 2, 2017, victims 11-year-old E.C. and 12-year-old K.V. decided to sleep in an apartment-building hallway. E.C.’s mother called the police at approximately 10:00 p.m. to report E.C. missing. Appellant, then 45 years old and whose wife lived in this same apartment complex, encountered the girls sleeping in the hallway at approximately 2:00 a.m. on June 3, 2017. Upon waking, E.C. and K.V. recognized appellant as a relative of one of their friends and told him that a man with a gun had chased them earlier that evening while outside, but they were afraid to go home because it was past their curfew. Appellant offered to take the girls to a hotel with him and get them their own room so they could sleep safely. E.C. and K.V. agreed.

Appellant brought them to a single hotel room in a hotel several miles away and gave them alcohol and marijuana. He touched the girls’ breasts and vaginas under their clothes, and digitally penetrated E.C. When appellant appeared to fall asleep, the girls got up, broke off a bathroom towel bar for protection, and fled the hotel. The girls found a ride back to K.V.’s apartment.

Police found the girls later that morning at K.V.’s apartment. Concerned with E.C.’s appearance, E.C.’s mother took her to the hospital, where E.C. reported the sexual assault to a nurse who conducted a sexual-assault examination. K.V. disclosed the sexual assault to her mother that day as well and recounted it to a detective on June 7, 2017.

Respondent State of Minnesota filed a complaint against appellant and issued an arrest warrant for him on August 28, 2017. Police arrested him on January 28, 2018. The state charged appellant with one count of first-degree criminal sexual conduct (victim under 13), in violation of Minn. Stat. § 609.342, subd. 1(a) (2016), and one count of second-degree criminal sexual conduct (victim under 13), in violation of Minn. Stat. § 609.343, subd. 1(a) (2016), for sexually assaulting E.C. and K.V., respectively.

The jury found appellant guilty on both counts of criminal sexual conduct. The district court sentenced him to concurrent 216-month and 140-month prison terms and to a lifetime conditional-release term. This appeal follows.

ISSUES

I. Did the district court violate appellant’s right to a speedy trial?

II. Did the district court improperly sentence appellant to a lifetime conditional-release term?

III. Did the state provide sufficient evidence to establish that two of appellant’s out-of-state convictions should be included in his criminal-history score?

ANALYSIS

I. The district court did not violate appellant’s right to a speedy trial.

Appellant argues that the district court denied his right to a speedy trial by holding his trial 104 days after his demand for a speedy trial. We disagree.

Both the U.S. and Minnesota constitutions provide the right to "a speedy and public trial" in all criminal prosecutions. U.S. Const. amend. VI ; Minn. Const. art. I, § 6. The state bears the burden of ensuring a speedy trial. State v. Windish , 590 N.W.2d 311, 316 (Minn. 1999). We review a speedy-trial challenge de novo. State v. Osorio , 891 N.W.2d 620, 627 (Minn. 2017). A trial must begin within 60 days of the defendant’s demand, unless the district court finds good cause for a later trial date. Minn. R. Crim. P. 11.09(b). Delays beyond this 60-day mark are a presumptive violation. Windish , 590 N.W.2d at 315-16.

On March 6, 2018, appellant asserted his right to a speedy trial. On April 2, 2018, the district court granted the state a continuance due to witness unavailability and rescheduled the trial for May 21, 2018. On May 18, 2018, the district court granted the state a second continuance due to pending DNA-testing results. The district court rescheduled trial to June 18, 2018, 104 days after appellant’s demand for a speedy trial.

The Supreme Court established four factors to weigh in determining whether a district court violated a defendant’s right to a speedy trial: (1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) prejudice to the defendant.

Barker v. Wingo , 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). No single factor is either necessary or sufficient to find a violation. State v. Taylor , 869 N.W.2d 1, 19 (Minn. 2015). Rather, the factors are related and considered together. Id. The only remedy for a violation of the right to a speedy trial is reversal and dismissal. Barker , 407 U.S. at 522, 92 S. Ct. at 2188. Appellant and the state agree that factors one through three weigh in favor of appellant. They differ in the weight they place on the prejudice factor and on how it affects the outcome of the Barker analysis. We examine each factor individually and together.

A. Length of the delay

A delay beyond the 60-day period is a presumptive violation that triggers analysis of the remaining Barker factors. Windish , 590 N.W.2d at 315-16 (citing Barker , 407 U.S. at 530, 92 S. Ct. at 2192 ). Here, the second continuance pushed appellant’s trial date to June 18, 2018, 44 days beyond the 60-day period that ended May 5, 2018. This delay therefore requires analysis of the remaining Barker factors. Id. at 316.

B. Reasons for the delay

We must next determine whether the state or appellant is more responsible for the delay. Taylor , 869 N.W.2d at 19-20 (citing Vermont v. Brillon , 556 U.S. 81, 90, 129 S. Ct. 1283, 173 L.Ed.2d 231 (2009) ). Deliberate delays "to hamper the defense" weigh heavily against the state, "neutral reasons" such as negligence weigh less heavily, and "valid reason[s], such as a missing witness ... justify appropriate delay." Barker , 407 U.S. at 531, 92 S. Ct. at 219. A lack of diligence in making witnesses available also weighs against the state. Windish , 590 N.W.2d at 317. The state’s prompt requests for DNA-testing results and reasonable requests for continuances to obtain test results may constitute good cause for trial delay. State v. Stroud , 459 N.W.2d 332, 335 (Minn. App. 1990).

Here, the district court found good cause to grant each of the state’s requests for continuances. The record does not indicate the cause of the witness unavailability that led to the first continuance. For the second continuance, the state submitted a letter to the district court describing the steps it took to obtain the DNA-testing results. The state did not receive the initial October 2017 DNA report from the Hennepin County Sheriff’s Department, indicating the need for follow-up testing, until May 11, 2018. However, the state sent its first request for this report on March 14, 2018, and a second request on May 4, 2018. There is no indication that the state deliberately delayed in requesting the necessary DNA report. Nonetheless, the state bears more responsibility for the delay than does appellant. Therefore, this factor weighs against the state.

C. Appellant’s assertion of the right to a speedy trial

We give the third factor strong weight in determining whether a violation has occurred, as the strength of a defendant’s efforts to assert his right to a speedy trial will be affected by the nature of the delay and prejudice he experiences. Barker , 407 U.S. at 531-32, 92 S. Ct. at 2192-93. The third factor allows courts "to weigh the frequency and force of the [defendant’s] objections as opposed to attaching significant weight to a purely pro forma objection." Id. at 529, 92 S. Ct. at 2191. After making his formal demand for a speedy trial on March 6, 2018, appellant opposed each of the state’s requests for continuances, reasserted his demand for a speedy trial, and requested conditional release if the district court approved the continuances. The district court denied appellant’s requests.

Appellant appears to argue in the alternative that we should view the length of the delay before his trial began as ten months, based on the date the state filed the complaint against him. However, when a defendant knows of a warrant for his arrest, as appellant did here, but does not assert his right to a speedy trial, this third factor weighs strongly against that defendant. Osorio , 891 N.W.2d at 629. Instead, we review appellant’s claim and this factor using the 44 days after the 60-day period following his assertion, and we conclude that appellant’s consistent assertions weigh in his favor.

D. Prejudice to the defendant

For the fourth factor, we consider whether the delay resulted in (1) oppressive pretrial incarceration; (2) heightened, rather than ordinary, levels of anxiety and concern in the defendant; and (3) an impaired defense. Barker , 407 U.S. at 532, 92 S. Ct. at 2193. A failure to show any of these forms of prejudice weighs against the defendant. State v. Strobel , 921 N.W.2d 563, 572 (Minn. App. 2018), review granted on other grounds (...