Ramsey County District Court File No. 62CR116362
Lori Swanson, Attorney General, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney, St. Paul, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant Public Defender, Raina Urton, Certified Student Attorney, St. Paul, Minnesota (for appellant),
Considered and decided by Kirk, Presiding Judge; Johnson, Chief Judge; and Stoneburner, Judge.
Appellant challenges his convictions of four counts of felony violation of a criminal domestic-abuse-no-contact order (DANCO) and one count of misdemeanor witness tampering, arguing that there is insufficient evidence to support two of the DANCO-violation convictions and cumulative errors require reversal of the remaining convictions. Appellant also argues, for the first time on appeal, that the DANCO statute is unconstitutional. He also challenges imposition of separate sentences for three of the convictions, arguing that those convictions all arose out of the same behavioral incident. Appellant raised several issues in a pro se supplemental brief as well.
Because the evidence is insufficient to support the convictions of DANCO-violations charged in counts one and two, we reverse those convictions. Because the district court committed plain and prejudicial error by allowing the jury, during deliberations, to review the primary evidence of witness tampering charged in count five, we reverse that conviction. Because (1) the district court's plain errors in jury instructions did not affect the convictions of DANCO-violations charged in counts three and four); (2) any constitutional challenge to those convictions was waived; and (3) issues raised in appellant's pro se supplemental brief do not entitle him to relief from convictions on those counts, we affirm appellant's convictions of counts three and four. These rulings render appellant's sentencing challenge moot, but we remand for sentencing consistent with this opinion.
On July 23, 2011, appellant Ambakisye Adam Holmes was arrested and charged with felony domestic abuse against C.A.T. From the jail, Holmes made several telephone calls. All telephone calls made by inmates from the jail are monitored and recorded, and each inmate is assigned a personal identification number that must be entered to initiate calls and can be used to identify which inmate initiates a call.
On the day of his arrest, Holmes telephoned C.A.T. and discussed what she needed to tell the police to get the charges against him dropped. Holmes told C.A.T. that "Serita" would tell her what to do because she had "been through it before."
On July 27, 2011, the district court issued a DANCO, ordering that Holmes have no contact, directly, indirectly, or through others, with C.A.T. The same day, after the DANCO was issued, Holmes made two telephone calls: one to his mother and one to a person identified as "Serita." In these calls, Holmes asked both his mother and Serita to relay information to C.A.T. about what she should do and say. In the call to Serita, Holmes told her that he needed her to place a three-way call. On July 28, 2011, and July 29, 2011, Holmes called Serita, and, on both days, Serita made a three-way call so that Holmes could talk directly to C.A.T.
Holmes was charged with four felony DANCO violations, one for each telephone call made after the DANCO was issued on July 27, 2011. The parties do not dispute that counts one and two of the complaint relate to the calls appellant made on July 27, asking his mother and Serita to contact C.A.T., that count three relates to the July 28 three-way call with Serita and C.A.T., and that count four relates to the July 29 three-way call with Serita and C.A.T. In count five of the complaint, Holmes was charged with misdemeanor witness tampering based on the July 25, pre-DANCO call to C.A.T. and the July 27 calls to his mother and Serita.
The only witness at the jury trial on these charges was Officer Jeffrey Schwab, who testified that, in connection with his investigation of the charges, he had reviewed the recordings of the five calls made by Holmes. Officer Schwab testified that he had personally spoken with C.A.T. about the domestic-abuse incident, and he recognized her voice on the recordings of the calls made on July 25, July 28, and July 29. Officer Schwab testified that the July 28 and July 29 calls to Serita resulted in three-way conferencing with C.A.T. Over Holmes's objection, the recordings of the July 25 and July 27 calls were played to the jury, and transcripts of each call were provided to the jury so that they could follow the conversations as the recordings were played. The recordings and the transcripts of these three calls were not admitted into evidence, but the transcripts of the calls became court exhibits. No evidence of the content of the July 28 and 29 calls was admitted.
At the conclusion of the state's case, Holmes moved for acquittal, arguing that because the state failed to introduce the recordings that were played for the jury into evidence as exhibits, there was insufficient evidence in the record to support the charges. The district court denied the motion.
During deliberations, the jury asked to see the transcripts of the July 27 calls. Over Holmes's objection, the district court replayed the audio recordings of those calls in open court and allowed the jury to follow along with the transcripts while the recordings were played. The jury found Holmes guilty of all five charges. He was sentenced to concurrent sentences of 24, 27, and 30 months for the first three DANCO violations, a consecutive year-and-a-day sentence for the fourth DANCO violation, and 90 days for the witness tampering conviction, for which he was given credit for time served. This appeal followed.
Challenge to sufficiency of evidence to support convictions for the calls made