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State v. Brooks

December 28, 2004

STATE OF MINNESOTA, RESPONDENT,
v.
DAVID LEE BROOKS, APPELLANT.



Olmsted County District Court File No. K9-02-755.

Considered and decided by Kalitowski, Presiding Judge; Wright, Judge; and Forsberg, Judge.*fn1

SYLLABUS BY THE COURT

Because Blakely v. Washington, 124 S.Ct. 2531 (2004), does not require that a jury find, or a defendant admit, the existence of a custody status point, the district court did not violate appellant's rights under the Sixth Amendment to the United States Constitution by finding that appellant's criminal history score included a custody status point.

The opinion of the court was delivered by: Kalitowski, Judge

Affirmed

OPINION

Appellant David Brooks challenges his convictions and sentence, arguing that (1) his sentence was invalid because the district court, rather than a jury, found that appellant's criminal history score included a custody status point; (2) the prosecutor engaged in prejudicial misconduct; and (3) the evidence was insufficient to sustain his convictions.

FACTS

In May 2001, appellant attacked his girlfriend. He was subsequently charged with and convicted of fifth-degree felony assault. This court affirmed the conviction in State v. Brooks, No. C2-02-1434 (Minn. App. Sept. 2, 2003). In February 2002, the day before appellant's girlfriend was scheduled to testify at the trial on the May 2001 assault, appellant went to the apartment he shared with his girlfriend and punched her in the mouth. Later that night, appellant broke through a locked door in the apartment, damaged property, and threatened to harm his girlfriend if he was sent to prison. Appellant was charged with another count of fifth-degree felony assault and one count of tampering with a witness. Following a bench trial, the district court found appellant guilty of both counts in March 2003.

In September 2003, the district court sentenced appellant for the assault and witness-tampering convictions. The district court reviewed sentencing worksheets and found: (1) at the time of sentencing for the severity-level four assault conviction, appellant had six criminal history points, one of which was a custody status point; and (2) at the time of sentencing for the severity-level five witness-tampering conviction, appellant had seven criminal history points, including the custody status point and the point for the previous assault conviction. The district court sentenced appellant to the presumptive 30-month prison sentence for the assault conviction, and 51 months for the witness-tampering conviction. See Minn. Sent. Guidelines IV. (2003). The witness-tampering sentence included a three-month enhancement based on appellant's custody status point. See Minn. Sent. Guidelines II.B.2. (calling for three-month enhancement for a custody status point when the defendant's criminal history score is in the far right-hand column of the sentencing grid before the custody status point is added).

ISSUES

1. Were appellant's Sixth Amendment rights violated when the district court, rather than the jury, determined that appellant's criminal history score included one custody status point?

2. Did the prosecutor engage in prejudicial misconduct?

3. Was the evidence sufficient to support ...


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