Hennepin County District Court File No. 27-CR-09-17539
The opinion of the court was delivered by: Chutich, Judge
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
Considered and decided by Ross, Presiding Judge; Peterson, Judge; and Chutich, Judge.
On appeal from her conviction of one count of theft by swindle and two counts of possession of stolen or counterfeit checks, appellant Almetia Njuguna argues that the district court erred by admitting into evidence the affidavit she signed to enter a pretrial-diversion program. Because the district court properly admitted the affidavit, we affirm.
On March 24, 2008, Njuguna opened a checking account at Stearns Bank in Edina in the name of her husband, Gitau Njuguna. A few days later, a check for $3,500 was deposited into the account through an automated teller machine (ATM). The check was drawn on an account in the name of Helen Parker from City-County Federal Credit Union. The word "car" was written on the check's memo line. The following day, Njuguna returned to the bank and withdrew $3,000 from her husband's account.
On April 4, 2008, a check for $1,000 was deposited into Gitau's account by ATM. Again, the check was drawn on the account of Helen Parker and had "car" written in the check's memo line. Parker had previously closed her City-County Federal account, so both checks were returned and Stearns Bank received no funds to credit Gitau's account.
After an internal investigation, Stearns Bank reported the matter to the police. Hennepin County charged Njuguna with one count of theft by swindle over $1,000 and two counts of possession or sale of stolen or counterfeit checks. On October 22, 2009, Njuguna was referred to Operation De Novo, Hennepin County's pretrial diversion program. As a prerequisite to entering the program, Njuguna signed an Affidavit of Agreement of Defendant. The affidavit contained language similar to the charging complaint, detailing the check deposits and withdrawal, and required Njuguna to acknowledge that the factual allegations were "true and accurate." By signing the affidavit, Njuguna specifically acknowledged that if she failed to complete the program, "[the] affidavit would be admissible at trial and used against [her]."
In September 2010, Njuguna was discharged from the pretrial diversion program for failing to make restitution payments and to maintain contact with her counselor. The program referred her case back to the district court for prosecution.
Before trial, defense counsel moved to suppress the affidavit that Njuguna signed as a prerequisite to entering Operation De Novo, arguing that it violated her constitutional right against self-incrimination and Minnesota Rule of Evidence 410. The district court denied Njuguna's motion.
At trial, the state offered and the district court admitted Njuguna's Operation De Novo affidavit into evidence. Njuguna's daughter, Ebony Brown, testified in her defense. Brown testified that Helen Parker and Njuguna were good friends, and that in March 2008, they were in a car accident in Minneapolis. Brown claimed that Parker did not want to get the police involved so she wrote Njuguna two checks to take care of damage to her car. Helen Parker testified for the state and confirmed that she and ...