State v. Johnson, A14-0621
| Decision Date | 12 January 2015 |
| Docket Number | A14-0621 |
| Parties | State of Minnesota, Respondent, v. Terry Ross Johnson, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
Affirmed in part, reversed in part, and remanded
Lac Qui Parle County District Court
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UNPUBLISHED OPINION
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, thelongest 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.
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.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,
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.
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.
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"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-trialmotion 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.Smith, 543 U.S. at 473, 125 S. Ct. at 1137. The Supreme Court reasoned, "any...
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