State v. Hanson, No. A03-1020 (MN 7/7/2004)
| Decision Date | 07 July 2004 |
| Docket Number | No. A03-1020.,A03-1020. |
| Parties | State of Minnesota, Respondent, v. Donald H. Hanson, Appellant. |
| Court | Minnesota Supreme Court |
Appeal from the District Court, Hennepin County, File No. 02026468.
John Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, (for appellant)
Mike Hatch, Attorney General, and
Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, (for appellant)
Considered and decided by Shumaker, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.
On appeal from convictions of and sentencing for three counts of criminal sexual conduct and one count of indecent exposure, Donald H. Hanson argues that the cumulative effect of the district court's evidentiary errors, prosecutorial misconduct, and erroneous jury instructions denied him a fair trial. Appellant also argues that the jury instructions deprived him of a unanimous verdict and that the district court erred in sentencing. Because we conclude that appellant was not denied a fair trial or a unanimous verdict, we affirm the convictions. Because the convictions of fifth-degree criminal sexual conduct and indecent exposure were based on a single act against a single victim and appellant is only subject to a five-year conditional-release term, we vacate the one-year sentence imposed for indecent exposure involving P.L. and modify the conditional-release term to five years.
Three elementary-school children, who were passengers on a school bus driven by appellant Donald H. Hanson, reported appellant's inappropriate sexual conduct on the school bus. Appellant was charged with: second-degree criminal sexual conduct involving Q.K.F.; second-degree criminal sexual conduct involving J.H.L.; attempted second-degree criminal sexual conduct involving J.H.L.; fifth-degree criminal sexual conduct involving P.L.; and indecent exposure involving P.L. The second-degree criminal sexual conduct charge involving Q.K.F. was dismissed before trial.
The investigating officer obtained a search warrant for appellant's home based on the children's statements about appellant's conduct on the school bus; evidence from a daycare provider and a parent that appellant had picked up J.H.L. and another child early; the fact that when police went to appellant's home to arrest him he was looking at the computer with a nine-year-old boy he had befriended on the school bus, and photographs he had of two juveniles in his wallet when he was arrested. At appellant's home, the investigating officer found, among other things, a copy of a bus schedule with the names of children written on it and copies of the Minnesota statutes about criminal sexual conduct crimes and tampering with a witness.
At trial, Judy Weigman, a licensed social worker employed at CornerHouse, testified about her interview with J.H.L. Weigman offered her opinion, over objection, that J.H.L. had been sexually abused. Weigman did not interview P.L. and therefore did not offer any opinion testimony about whether he was abused. Tapes of both children's interviews at CornerHouse were played for the jury, but were not transcribed.
A jury found appellant guilty of the four counts involving J.H.L. and P.L. The district court sentenced appellant to a dispositional departure of 21 months for second-degree criminal sexual conduct involving J.H.L., concurrent sentences of 13 and one-half months for attempted second-degree criminal sexual conduct involving J.H.L., and one year each for fifth-degree criminal sexual conduct and indecent exposure involving P.L. The court also imposed ten years of conditional release. This appeal followed.
Appellant asserts that the cumulative effect of evidentiary errors, prosecutorial misconduct and erroneous jury instructions denied him a fair trial. We will examine each of appellant's allegations separately to evaluate if there was error, and if there was error, we will examine the cumulative effect of the error.
Appellant first argues that evidence seized under the warrant should have been excluded because the search warrant lacked probable cause, did not state with particularity the items to be seized, and there was no nexus between the alleged sexual conduct and appellant's home.
This court's review of a district court's probable-cause determination accords great deference to the issuing court. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). The review is limited to determining whether the issuing judge "had a `substantial basis' for concluding that probable cause existed." State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (citation omitted). To determine whether the issuing court had a substantial basis for finding probable cause for the warrant, this court looks to the "totality of the circumstances" test promulgated by the United States Supreme Court.
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983). Appellate courts Wiley, 366 N.W.2d at 268 (quoting Massachusetts v. Upton, 466 U.S. 727, 734, 104 S. Ct. 2085, 2089 (1984)). Marginal or doubtful cases should be resolved with a preference for warrants. State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990).
The affidavit supporting the warrant application outlined the allegations of J.H.L., Q.K.F., and P.L.; identified appellant as having been investigated for child molestation in 1998; stated that when the police arrived to arrest appellant, he was in the presence of a nine-year-old boy whom he had befriended while driving the school bus and that appellant and the boy were looking at a computer; stated that the police found two photographs of juvenile males in appellant's wallet when he was arrested; and outlined the officers' combined training and experience of more than 15 years in sex crimes investigations. Specifically, the warrant stated, regarding the officers' training and experience, that:
It is known that sex offenders who abuse children will keep and maintain pornography, which excites them and fosters their deviant fantasies. Your affiants has (sic) received training through the BCA and FBI, which has provided information on pedophile offenders. It is known that these individuals will keep and maintain pornography which depicts juvenile males engaging in sexual acts or poses with other juveniles or adults. These offenders will keep either magazine or pictorial photographs, VHS videotapes, or use the computer internet to store, distribute and meet potential juvenile victims.
The warrant authorized police to seize all homemade or commercially produced pornography in any form, including film or VHS tape, that depicts juvenile males posing or engaging in sexual acts; all homemade or commercially produced pornography that is stored, sold, transferred, or distributed over a computer hard drive and data kept on computer disks or tapes; all handwritten personal notebooks, letters, or notes that may contain names and addresses or identities of potential male victims; all personal notebooks, papers, ledgers, or diaries written or possessed by appellant describing sexual fantasies or acts involving juvenile males; and papers showing constructive possession to appellant's residence.
Pursuant to the warrant, police seized several items from appellant's residence, including child pornography.1 Appellant moved to suppress evidence seized from his home.2 The district court denied appellant's suppression motion, finding that, under the totality of the circumstances, there was probable cause and a sufficient nexus between the alleged conduct and appellant's home, and that the warrant lists the items to be seized with sufficient specificity.
At trial, the state introduced into evidence appellant's copy of the bus route with children's names that was seized from his home and solicited testimony that the officers found copies of the sexual-assault and witness-tampering statutes at appellant's home.3
Appellant argues that the warrant lacked probable cause because it failed to establish a sufficient nexus between appellant's alleged crimes on the school bus and appellant's home. We disagree.
Minnesota requires "a direct connection, or nexus, between the alleged crime and the particular place to be searched." State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998). In determining whether such a nexus exists, the issuing judge must consider the nature of the crime, "the nature of the items sought, the extent of the suspect's opportunity for concealment, and the normal inferences as to where the suspect would normally keep the items." State v. Harris, 589 N.W.2d 782, 788 (Minn. 1999). "Information linking the crime to the place to be searched and the freshness of the information are also relevant." State v. Brennan, 674 N.W.2d 200, 204 (Minn. App. 2004).
Appellant concedes that the officers' training and experience support the inference that the items sought would be at appellant's residence. But appellant argues that it is not reasonable to infer that appellant would keep child pornography at his home simply because (1) he was arrested in the...
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