State of Minnesota v. Tyrone Xavier Johnson ( 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This opinion will be unpublished and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
A14-1125
State of Minnesota,
Respondent,
vs.
Tyrone Xavier Johnson,
Appellant.
Filed April 6, 2015
Affirmed
Bjorkman, Judge
Sherburne County District Court
File No. 71-CR-13-1115
Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, St. Paul,
Minnesota; and
Kathleen A. Heaney, Sherburne County Attorney, Samuel Wertheimer II, Chief Deputy
County Attorney, Elk River, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Hudson, Judge; and
Smith, Judge.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges his first-degree assault conviction, arguing that (1) the
district court committed prejudicial plain error by admitting as an exhibit the victim’s
recorded statement to police and (2) the district court abused its discretion by admitting
evidence of appellant’s prior violent conduct toward the victim. Appellant presents
additional challenges to his conviction in a pro se supplemental brief. We affirm.
FACTS
Appellant Tyrone Johnson and D.A. met in 2012 and moved to Williston, North
Dakota the following March. They returned to Minnesota by August 2013, and moved
into an apartment in St. Cloud that has four separate bedrooms and a common living area.
Johnson rented one of the bedrooms, and D.A. slept on the floor of his room.
During the evening of August 11, Johnson and D.A. had a few beers at home, then
went out drinking. Around 1:30 or 2:00 a.m., R.S., who rented another of the bedrooms,
was on a couch in the common area. R.S. heard Johnson and D.A. enter the apartment
and heard them talking in Johnson’s room. R.S. thought Johnson sounded angry; he did
not hear D.A. say anything. He also “heard a couple thuds like a couple punches,” and
then things quieted down. The tenant from the apartment immediately below Johnson’s
apartment also heard a “loud bang” on her ceiling that night, like “a dresser was hitting
the ground.”
Around 6:00 a.m. the next morning, D.A. called 911 reporting that he “got the sh-t
beat out of” him. St. Cloud Police Officer Scott Wenshau responded and discovered
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D.A. sitting outside the apartment building next to a bag of groceries. D.A. had blood
draining from his left ear, and his face appeared swollen and misshapen. He stated that
he thought his ribs were broken and asked to be taken to the hospital.
About two minutes after arriving, Officer Wenshau turned on his personal tape
recorder and questioned D.A. He told Officer Wenshau that he had been laying on the
floor in Johnson’s room four or five hours earlier when Johnson suddenly “snapped.”
D.A. stated that Johnson started kicking and hitting him and telling him he was going to
kill him, then picked up a 30-pound dumbbell and started “slamming” him. D.A. also
stated that a roommate had been sleeping on a couch in the open area of the apartment
around the time of the assault.
An ambulance took D.A. to the hospital, where he told the treating physician that
he was “beat up with a bar bell.” D.A. was treated for numerous injuries and was “in
obvious pain.” He had bruises on his face and left knee and shin. He also sustained
multiple front and back rib fractures on his left side, his left lung was collapsed, and his
bleeding spleen was surgically removed. Breath testing revealed an alcohol
concentration of .105.
Meanwhile, additional officers responded and awoke Johnson. They noticed that
he smelled of alcohol and had glassy, watery eyes. The officers also observed a hex
dumbbell on the bed, but they did not observe any blood on the dumbbell or any signs of
a struggle in the room.
Johnson was charged with first-degree and third-degree assault (harm) and second-
degree assault (dangerous weapon). At trial, D.A. was unable to remember fully the
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events of August 11-12. He remembered drinking with Johnson and being in the hospital
but was unsure what had happened to him and did not recall being assaulted, calling 911,
or talking to police. The state presented the audio recordings of D.A.’s 911 call and his
statement to Officer Wenshau; Johnson did not object to the recordings being received as
exhibits.1
The jury also heard testimony about both Johnson’s and D.A.’s past conduct.
Over Johnson’s objection, the district court permitted the state to elicit testimony from
D.A. that while he and Johnson were living in Williston, “the two of us were drinking
and I got punched and knocked down by the Defendant Mr. Tyrone Johnson. I think one
of the bartenders in there called up 9-1-1 or something. And I didn’t file or press any
charges, kind of let things go.” Johnson countered with evidence that D.A. is an
alcoholic who has a history of injuring himself while intoxicated and has twice been
civilly committed because of alcoholism and mental illness.
Johnson also elected to testify. He stated that on the night in question, D.A. drank
five beers, went out with Johnson to drink more, and then went off on his own around
9:30 p.m. with a group of “rough” people. Johnson testified that when he saw D.A. an
hour later, D.A. was limping, bruised, and holding his side. Johnson stated that D.A.
refused to go back to the apartment so he left D.A. and returned home. Johnson testified
that he got home around 1:00 a.m., and that R.S. was not there. D.A. returned later,
looking “pretty bad,” and Johnson brought him into his bedroom. Johnson testified that
1
Johnson objected to admission of D.A.’s statement to Officer Wenshau on confrontation
grounds but does not raise that issue on appeal.
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D.A. started “hollering and bamming at the wall,” and he yelled at D.A. to “straighten
up.” According to Johnson, D.A. then went outside to smoke, Johnson went to sleep, and
the next thing he knew the police were questioning him.
During its deliberations, the jury asked to listen to D.A.’s statement to Officer
Wenshau. The district court brought the jury into the courtroom and replayed the
recording. The jury found Johnson guilty of first-degree and third-degree assault and
acquitted him of second-degree assault. The district court sentenced Johnson to 122
months’ imprisonment. Johnson appeals.
DECISION
I. The district court did not commit prejudicial plain error by receiving D.A.’s
recorded statement to police as an exhibit.
When, as here, the appellant challenges the admission of unobjected-to evidence,
we review for plain error. Montanaro v. State, 802 N.W.2d 726, 732 (Minn. 2011). In
applying the plain-error test, we will reverse only if the district court (1) committed an
error; (2) that was plain; (3) that affected the defendant’s substantial rights; and (4) that
seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.Hearsay is generally inadmissible. Minn. R. Evid. 802. But a “memorandum or
record” concerning a matter about which a witness once had knowledge and made when
the matter was fresh in the witness’s memory may be admissible if the witness has
insufficient recollection to testify fully and accurately. Minn. R. Evid. 803(5). “If
admitted, the memorandum or record may be read into evidence but may not itself be
received as an exhibit unless offered by an adverse party.” Id. We review the
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interpretation of this language de novo. State v. Stone, 784 N.W.2d 367, 370 (Minn.
2010).
Johnson concedes that D.A.’s statement was a recorded recollection that “could be
played for the jury during the trial.” But he contends that the district court committed
prejudicial plain error by admitting the recording as an exhibit, with the result being that
the jury heard the recording twice. We are not persuaded. First, the plain language of
rule 803(5) precludes admission of a document—a “memorandum or record”—but does
not expressly prevent a district court from permitting more than one auditory presentation
of the evidence. This distinction is consistent with the concern that providing the jury a
“hearsay document” could lead it to place “undue emphasis on the statement.” Minn. R.
Evid. 803(5) 1989 comm. cmt. And neither the rule nor the comment suggest a limit on
the number of times the jury may hear a recorded recollection.
Second, and more importantly, Johnson has not demonstrated that the district
court’s treatment of D.A.’s recorded recollection impaired his substantial rights. To
satisfy this third prong of the plain-error test, Johnson must demonstrate that the asserted
error was prejudicial and affected the outcome of the case. State v. Griller, 583 N.W.2d
736, 741 (Minn. 1998). “Error is prejudicial if there is a reasonable likelihood that the
error had a significant effect on the jury’s verdict.” State v. Barrientos–Quintana, 787
N.W.2d 603, 611 (Minn. 2010) (quotation omitted). Johnson argues that the jury’s
request to rehear the recording of D.A.’s statement demonstrates that it unduly focused
on the recording. We disagree. The recording was substantive evidence properly before
the jury, as Johnson concedes. Its admission as an exhibit merely permitted the jury to
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hear it twice, rather than once. See State v. Kendell, 723 N.W.2d 597, 613 (Minn. 2006)
(stating that it is not error to permit a jury to rehear a properly admitted taped interview
of a victim). The jury also heard a recording of D.A.’s 911 call, Officer Wenshau’s
testimony about D.A.’s statement and his observations of D.A., medical evidence about
D.A.’s injuries, and R.S.’s testimony about the events of August 12. Nothing in this
record reasonably suggests that receiving the recorded recollection as an exhibit, which
allowed the jurors to hear it twice, significantly affected the verdict. Accordingly, we
conclude that Johnson’s plain-error claim fails.
II. The district court did not abuse its discretion by admitting Spreigl evidence.
Evidence of a defendant’s prior crimes or bad acts is not admissible to prove the
defendant’s character for purposes of showing that he acted in conformity with that
character. Minn. R. Evid. 404(b). But this Spreigl evidence may be admissible for other
limited purposes. Id.; see also State v. Clark, 738 N.W.2d 316, 345 (Minn. 2007). We
review the admission of Spreigl evidence for an abuse of discretion. State v. Ness, 707
N.W.2d 676, 685 (Minn. 2006).
Johnson argues that the district court abused its discretion by admitting evidence
of his prior assault against D.A. because it is irrelevant, any probative value is
outweighed by its potential prejudice, and its admission was unfairly prejudicial. We
address each of these issues in turn.
Relevance
Spreigl evidence must be “relevant to the prosecutor’s case.” Minn. R. Evid.
404(b)(4). A district court “should not simply take the prosecution’s stated purposes for
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the admission of other-acts evidence at face value” but independently determine “the
precise disputed fact to which the Spreigl evidence would be relevant.” Ness, 707
N.W.2d at 686. On appeal, we consider whether the rationale cited by the district court
provides a proper basis upon which to admit the evidence. State v. Rossberg, 851
N.W.2d 609, 615-16 (Minn. 2014).
Johnson first argues that the district court failed to identify the “precise disputed
fact” to which the evidence is relevant. We are not persuaded. The district court
explained that the state sought to use the Spreigl evidence “for purposes of showing
intent and a common scheme or plan” and stated that it would “grant the State’s request
to use that.” This discussion adequately, if implicitly, indicates that the district court
admitted the evidence as relevant to intent and common scheme or plan—both
recognized, permissible purposes. See Minn. R. Evid. 404(b); Ness, 707 N.W.2d at 687.
Johnson next asserts that the evidence is not relevant for either of these purposes.
We disagree. The Spreigl evidence is relevant to show a common scheme or plan.
Spreigl evidence is admissible under the common-scheme-or-plan exception to refute a
claim, like that asserted here, “that the victim’s testimony was a fabrication or a mistake
in perception.” Ness, 707 N.W.2d at 688. Evidence offered for this purpose must have a
“marked similarity in modus operandi to the charged offense.” Id. The closer the other
conduct is to the charged offense in terms of time, place, and modus operandi, the greater
its relevance. State v. Clark, 738 N.W.2d 316, 346 (Minn. 2007). That standard is met
here. The previous incident occurred no more than six months before the charged
offenses; both incidents involved Johnson and D.A. drinking alcohol together, followed
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by Johnson punching D.A. See State v. Kennedy, 585 N.W.2d 385, 391 (Minn. 1998)
(affirming use of common-scheme-or-plan evidence when prior incident and charged
offense occurred within six months of each other and involved the same victim).
Evidence of this markedly similar conduct is relevant to show common scheme or plan
and counter Johnson’s claim that D.A. fabricated or was mistaken about the assault.
Potential for unfair prejudice
Spreigl evidence is admissible only if its probative value outweighs its potential
for unfair prejudice to the defendant. Minn. R. Evid. 404(b)(5). Johnson argues that the
evidence presented an unwarranted risk of unfair prejudice because it was “irrelevant to
any disputed issue in this case” and not necessary. We disagree. D.A.’s recorded
statement identifying Johnson as his assailant sufficiently establishes the elements of the
charged offenses. But Johnson challenged the reliability of that statement, which D.A.
gave while under the influence of alcohol and could not remember at the time of trial, and
presented his own contradictory testimony. The Spreigl evidence is helpful in weighing
the two men’s credibility. While the evidence, like all Spreigl evidence, presents some
risk of unfair prejudice, we conclude that risk is outweighed by its substantial relevance.
Prejudice
Erroneous admission of Spreigl evidence warrants reversal only if the defendant
demonstrates prejudice. Clark, 738 N.W.2d at 347. Prejudice exists when “there is a
reasonable possibility that the wrongfully admitted evidence significantly affected the
verdict.” Id. (quotation omitted). In evaluating prejudice, we consider a number of
factors, including whether the state presented other evidence on the issue; whether the
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district court gave a jury instruction limiting the use of the evidence; whether the state
dwelled on the evidence in closing argument; and whether the evidence of guilt was
overwhelming. State v. Riddley, 776 N.W.2d 419, 428 (Minn. 2009).
Johnson contends that reversal is necessary because the Spreigl evidence
suggested that Johnson had a propensity for violence toward D.A. and the district court
failed to instruct the jury not to consider the evidence for this purpose. Johnson’s
concerns are well taken. But we are not persuaded, upon review of the entire record, that
they warrant reversal.
First, the omission of a limiting instruction is attributable to Johnson. A district
court “should admonish the jury” both at the time the evidence is received and in the final
charge that the Spreigl evidence is received for only a specific limited purpose and that
the defendant “may not be convicted for any offense except that charged.” State v.
Billstrom, 276 Minn. 174, 179, 149 N.W.2d 281, 285 (1967). Such a limiting instruction
minimizes the risk of jurors misusing Spreigl evidence, Rossberg, 851 N.W.2d at 616,
and should be given “even in the absence of a request” from the defendant, State v.
Frisinger, 484 N.W.2d 27, 31 (Minn. 1992). But “the failure to provide limiting
instructions absent a request is not reversible error.”2 State v. Williams, 593 N.W.2d 227,
237 (Minn. 1999), cert. denied, 528 U.S. 874, 120 S. Ct. 180 (1999). Johnson did not
request a limiting instruction.
Second, the Spreigl evidence played an extremely small role in the trial. After
initially indicating that he would “prefer not to comment,” on the prior incident, D.A.
2
Johnson does not assert that omission of a limiting instruction was error.
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testified only that Johnson punched him in a bar in Williston, the police were called, and
he did not press charges. There was no further testimony about the incident from any
witness. And the prosecutor made only one oblique reference to the Spreigl evidence in
closing argument. He emphasized that D.A. “was beaten by somebody he thought was
his friend. In fact, [D.A.] didn’t even really want to talk about what happened in
Williston.”
Third, the evidence against Johnson is strong. The jury was presented with two
distinct versions of how D.A. sustained his severe injuries, but only D.A.’s statement that
Johnson hit and kicked him and “slamm[ed]” him with a dumbbell finds corroboration in
the record. Specifically, Officer Wenshau explained that D.A. was alert and oriented
when he gave his statement and answered all of Officer Wenshau’s questions and gave
specific details. And police found a dumbbell in Johnson’s bedroom.
On this record, we conclude that any possible error in admitting the Spreigl
evidence does not require reversal.
III. Johnson’s pro se arguments lack merit.
Johnson challenges the sufficiency of the evidence to sustain his conviction.
When considering a sufficiency-of-the-evidence challenge, we view the evidence in the
light most favorable to the conviction to determine whether a jury could reasonably
conclude that the defendant was guilty of the offense. State v. Webb, 440 N.W.2d 426,
430 (Minn. 1989). We assume “the jury believed the state’s witnesses and disbelieved
any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).
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To prove first-degree assault, the state was required to prove that Johnson
intentionally inflicted bodily harm on D.A. that created a “high probability of death” or
caused “serious permanent disfigurement” or “a permanent or protracted loss or
impairment of the function of any bodily member or organ.” Minn. Stat. §§ 609.02,
subd. 8, .221, subd. 1 (2012). The evidence, viewed in a light most favorable to the
verdict, amply establishes these elements. D.A. explained that Johnson punched him,
kicked him, and struck him with a dumbbell, all while threatening to kill him. Officer
Wenshau and D.A.’s treating physician testified that these acts resulted in D.A.’s facial
bruising and swelling, numerous broken ribs, a punctured lung, and a spleen so damaged
it had to be surgically removed to prevent him from bleeding to death. We conclude that
this evidence is sufficient to support Johnson’s first-degree assault conviction.
Johnson also argues that the inadequate and weather-inappropriate courtroom
attire his attorney provided unfairly revealed to the jury that he was in custody. It is
unclear whether this is a challenge to the adequacy of his attorney’s efforts or a due-
process challenge, but it is unavailing either way. A defendant has a right not to appear
in court in “the distinctive attire of a prisoner.” Minn. R. Crim. P. 26.03, subd. 2(b); see
also State v. Lehman, 749 N.W.2d 76, 84 (Minn. App. 2008) (recognizing due-process
concerns in preventing defendant from wearing alternative clothing), review denied
(Minn. Aug. 5, 2008). But the record does not indicate that Johnson presented this
concern to the district court; it does not establish what efforts, if any, his attorney went to
in order to provide alternative clothing; and importantly, it does not indicate that he was
prejudiced by the clothing and footwear he had during trial. See Minn. R. Crim. P. 31.01
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(“Any error that does not affect substantial rights must be disregarded.”). Accordingly,
we conclude Johnson is not entitled to relief on this basis.
Affirmed.
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