                           This opinion will be unpublished and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
                                      A14-1676

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                   Daniel Edward Nixon,
                                        Appellant.

                                  Filed October 19, 2015
                                         Affirmed
                                       Kirk, Judge

                               Ramsey County District Court
                                 File No. 62-CR-13-5914


Lori Swanson, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Johnson, Presiding Judge; Kirk, Judge; and Reilly,

Judge.

                          UNPUBLISHED OPINION

KIRK, Judge

         Appellant challenges his conviction of aiding and abetting third-degree burglary.

Appellant raises two arguments on appeal. First, he argues that the district court erred in
refusing to suppress a bystander’s pretrial identification of appellant because the show-up

identification procedure was unnecessarily suggestive. Second, appellant argues that the

district court erred in admitting the statements of appellant’s accomplice during his guilty

plea colloquy identifying appellant as the second man involved in the burglary because it

violated his right to confrontation and the hearsay rules. We affirm.

                                          FACTS

       At approximately 10:00 a.m. on August 8, 2013, D.H. was preparing to open the

pull-tab booth at Skinner’s Pub, a restaurant and bar located in St. Paul. A man, later

identified as Antonio Jackson, entered the restaurant area and asked D.H. for a takeout

menu. Jackson sat at a table and made a phone call on his cell phone. Jackson asked

D.H. if the front door to the pub was unlocked, and D.H. replied that the door was locked

until 11:00 a.m. when the restaurant opened. D.H. walked over to the patio, located in

back of the restaurant, to smoke a cigarette.

       As D.H. lit her cigarette, she saw “a blur” running up the basement steps. At the

same time, Jackson stood up, turned around, and followed “the blur” out the pub’s back

door and into the parking lot. At trial, D.H. testified that she was unable to provide a

physical description of the “blur.”

       On the morning in question, a homeowner who resided down the street from the

pub was parking his vehicle outside behind his garage. The homeowner saw a man with

a cell phone exit the back door of the pub. A short time later, a second man ran out of the

back door of the pub and put something into the hands of the man with the cell phone.

Both men took off running towards a vehicle parked nearby on the corner of Milton


                                                2
Street and Randolph Avenue. The homeowner observed that the vehicle was a smaller,

maroon-colored four-door vehicle that was possibly a Ford Focus.          At trial, the

homeowner testified that he believed there was something “goofy” about what he had just

observed, which prompted him to walk over to the pub and ask the bartender if the pub

had been “robbed.”     The bartender denied that a robbery had occurred, and the

homeowner returned home.

      M.S. and P.S. own Skinner’s Pub. When M.S. learned about the possible robbery,

she immediately went down to the office located in the pub’s basement. M.S. saw that

the office door was open and that money was missing from deposit bags stored in

Tupperware containers. A large piece of plywood covering an open-air vent had been

moved, exposing a hole large enough for a person to crawl through. M.S. determined

that $3,525 in bills and coins was missing. Officers later recovered two shoeprints

located on a box directly below the exposed open-air vent.

      P.S. reported the burglary to police. St. Paul Police Officers David Quast and

Shawn Filiowich responded to the burglary report. During their investigation, they met

with the homeowner who observed the men leaving the pub. He provided a description

of the suspects’ race, size, and dress and the getaway vehicle. The homeowner told

Officer Quast that he did not get a good look at the suspects’ faces. The officers

broadcasted the homeowner’s description of the getaway vehicle over the police radio.

At a motion hearing, the homeowner testified that he viewed the two men for

approximately five to ten seconds from a distance of about 30 yards. The homeowner

testified that appellant Daniel Edward Nixon was wearing khaki shorts and a light-


                                            3
colored t-shirt with a design, and that Jackson was wearing a white t-shirt and green

shorts.

          St. Paul Police Officer Amanda Heu located a maroon-colored vehicle matching

the getaway-vehicle description in the alley of Fuller Avenue. Officer Heu saw a man

walk out from the garage area and spoke with him. The man provided Officer Heu with

the address of the owner-driver of the maroon-colored vehicle and stated that he often

saw a black male accompany the owner-driver of the vehicle.           Officers Quast and

Filiowich drove to the owner-driver’s residence. They observed Jackson walk out of the

front door of the residence wearing a white t-shirt and green shorts, matching the physical

description provided by the homeowner. Jackson briefly walked down the sidewalk,

noticed the officers sitting in the squad vehicle, and immediately walked back inside the

residence.

          When officers knocked on the front door of the residence, Jackson answered the

door dressed in different clothing. Jackson informed the officers of his identity, that he

was the owner of the residence, and that his “partner” was in the house.           Shortly

thereafter, appellant approached the officers at the front door. At trial, St. Paul Police

Officer Heather Teff testified that both men were “very sweaty.” When one of the

officers asked appellant what he and Jackson had been doing that morning, appellant

replied that they had been exercising. An officer observed scratches and white powder

consistent with dry-wall dust on appellant’s hands and arms.

          Appellant and Jackson were arrested for probable cause of committing a burglary

and placed in the back of separate squad vehicles for the show-up. Both men were


                                             4
removed one at a time from the squad vehicle, and presented to the homeowner and D.H.,

separately, without handcuffs or restraints in a public street with officers nearby. The

homeowner positively identified both suspects as the men that he saw leaving the pub on

the morning in question. While identifying appellant during the show-up, the homeowner

told a police officer, “Yeah, I thought he had a white shirt, but the rest of him looks a lot

like the guy.”     D.H. positively identified Jackson, but did not positively identify

appellant. At both the motion hearing and trial, the homeowner consistently testified that

he never got a good look at the facial features of either suspect. He also did not identify

appellant at trial as one of the suspects.

       On August 12, appellant was charged with aiding and abetting third-degree

burglary, and he pleaded not guilty. Appellant moved to suppress the homeowner’s

pretrial identification, arguing that the show-up procedure violated his constitutional

rights and was impermissibly suggestive. The district court held a two-day motion

hearing, at which the homeowner testified. On February 21, the district court denied

appellant’s motion, concluding that the pretrial identification was not impermissibly

suggestive and the evidence was reliable. The district court also denied appellant’s

motion for reconsideration.

       A four-day jury trial was held in May 2014. Jackson was named as a state’s

witness and was subpoenaed to testify at appellant’s trial. Despite being subpoenaed and

signing a recognizance promising to appear, Jackson failed to appear at trial, and the state

was unsuccessful in locating him.            The district court issued a warrant requesting

Jackson’s arrest and that he be held pending appearance at trial. On the last day of trial,


                                                 5
Jackson’s whereabouts remained unknown. In a separate proceeding, Jackson pleaded

guilty to aiding and abetting third-degree burglary without a plea deal and with no

advance knowledge of his criminal sentence. At appellant’s trial, the district court

allowed the prosecutor to read into evidence the transcript of Jackson’s guilty-plea

colloquy where he admitted that he and appellant committed the burglary. Citing the

forfeiture-by-wrongdoing doctrine, the district court also read into evidence several

letters written by appellant threatening Jackson’s safety if he testified at appellant’s trial.

       Appellant represented himself at trial, with the assistance of stand-by counsel. He

did not testify at trial. The jury convicted appellant of aiding and abetting burglary in the

third degree. Appellant was sentenced to 24 months in prison.

       This appeal follows.

                                       DECISION

I.     The district court did not err in admitting the homeowner’s pretrial
       identification.

       The admission of pretrial-identification evidence violates a defendant’s right to

due process if the procedure is “so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.” State v. Booker, 770 N.W.2d 161,

168 (Minn. App. 2009) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct.

967, 971 (1968)). This court reviews de novo whether the district court’s admission of

pretrial identification evidence denied a defendant due process. State v. Hooks, 752

N.W.2d 79, 83 (Minn. App. 2008). We review the district court’s evidentiary rulings for

an abuse of discretion, and we will not reverse a district court’s findings unless those

findings are clearly erroneous. State v. Byers, 570 N.W.2d 487, 491 (Minn. 1997).

                                               6
       We apply a two-part test to determine whether a pretrial identification is

admissible evidence. State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999). The first

prong of the test is whether the procedure “was unnecessarily suggestive.” In re Welfare

of M.E.M., 674 N.W.2d 208, 214-15 (Minn. App. 2004) (citations omitted). But under

the second prong of the test, even unnecessarily suggestive show-up evidence is reliable

if “the totality of the circumstances shows the witness’ identification has adequate

independent origin.” State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995). Courts

consider five factors when determining whether the identification evidence is reliable:

(1) the witness’s opportunity to see the suspect when the crime occurred; (2) the

witness’s degree of attention to the suspect; (3) the accuracy of the witness’s prior

description of the suspect; (4) the witness’s certainty about the identification when

confronted with the suspect; and (5) the amount of time between the crime and the

confrontation. State v. Adkins, 706 N.W.2d 59, 62-63 (Minn. App. 2005).

       Appellant argues that the show-up was unnecessarily suggestive because: (1) he

was selected from the general population based on the homeowner’s general description;

(2) the officers told the homeowner that he was being transported to view two suspects in

custody; and (3) the officers stated that they had found the “stuff” stolen in the burglary.

       We conclude that the show-up was not unnecessarily suggestive. “While a one-

person show-up is by its very nature suggestive,” it is not “unnecessarily suggestive per

se.” Taylor, 594 N.W.2d at 161-62. Here, appellant was not singled out from the general

population based solely upon a witness description or improperly presented for viewing

by the officers at the show-up. Id. at 162. The police singled out appellant for the show-


                                              7
up based on several factors. Officer Heu linked the homeowner’s description of the

suspects’ getaway vehicle to the suspects’ residence. Officers saw Jackson exit the

residence wearing clothes matching the description provided by the homeowner. When

officers made contact with appellant, whom Jackson described as his “partner” at the

residence, they noticed that both men were extremely sweaty and appellant had drywall

dust and scratches on his hands and forearms. This is strong evidence of appellant’s

alleged participation in the recent burglary of the pub.

       At the motion hearing, the homeowner testified that when Officer Quast told him

that they had two people in custody, the homeowner assumed that they had committed

the burglary. The homeowner also testified that while he was seated inside the squad

vehicle during the show-up, an officer told him that they had “found the stuff in the car

that he took from Skinner’s.” But Officer Quast testified that he never made the alleged

statement, and pointed out that when the homeowner participated in the show-up, officers

could not have recovered any stolen items from the getaway vehicle because a search

warrant for the vehicle had not yet been executed. A review of the squad video supports

the officer’s version of events.

       Moreover, even if the identification procedure was unduly suggestive, the

homeowner’s identification had an adequate independent origin under the totality of the

circumstances. Supporting the district court’s determination of reliability, the record

demonstrates that (1) the homeowner had an unobstructed view of the men; (2) his

attention was focused on their movements to such an extent that he walked over to the

pub and asked the bartender if the pub had been robbed; (3) the homeowner gave a


                                              8
relatively accurate description as the squad video shows appellant to be a black male

wearing a light-colored blue t-shirt and light-colored shorts; (4) the homeowner appeared

fairly certain in his identification of appellant; and (5) only approximately two hours had

elapsed between the alleged burglary and the show-up. While the homeowner was

unable to identify appellant at trial, his show-up identification was reliable at the time it

was made.

II.       The district court did not err in admitting Jackson’s testimony during
          appellant’s trial.

          Under the Confrontation Clause of the Sixth Amendment to the United States

Constitution, a defendant in a criminal case has the right “to be confronted with the

witnesses against him.” U.S. Const. amend. VI; see also Minn. Const. art. I, § 6.

Generally, the Confrontation Clause bars the admission of a witness’s out-of-court

testimonial statement unless the witness is unavailable and was previously subject to

cross examination by the defendant. Crawford v. Washington, 541 U.S. 36, 68, 124

S. Ct. 1354, 1374 (2004); State v. Cox, 779 N.W.2d 844, 850 (Minn. 2010). One narrow

exception to the Confrontation Clause is the forfeiture-by-wrongdoing doctrine, which

“extinguishes confrontation claims on essentially equitable grounds.” Cox, 779 N.W.2d

at 850.

          The forfeiture-by-wrongdoing doctrine requires the state to prove: (1) that the

declarant-witness is unavailable, (2) that the defendant engaged in wrongful conduct,

(3) that the wrongful conduct procured the unavailability of the witness, and (4) that the

defendant intended to procure the unavailability of the witness. Id. at 851. This court

considers whether the district court’s admission of evidence violated the defendant’s

                                             9
Confrontation Clause rights de novo. State v. Caulfield, 722 N.W.2d 304, 308 (Minn.

2006).

         Appellant argues that the state failed to prove the first three elements of the

forfeiture-by-wrongdoing doctrine. We disagree.

         Under the Confrontation Clause, a witness is not unavailable “unless the

prosecutorial authorities have made a good-faith effort to obtain his presence at trial.”

Cox, 779 N.W.2d at 852 (quotation omitted). Relevant factors for determining the

unavailability of a witness include the lengths to which the state went to procure the

witness, whether the witness responded to the state’s subpoena, and whether the state

called the witness at trial. Id. The state must prove the unavailability of a witness by a

preponderance of the evidence. Id.

         Here, a preponderance of the evidence supports the district court’s determination

that Jackson was unavailable for trial. The state made numerous attempts to contact

Jackson by phone and at his residence. The district court also issued a warrant for

Jackson’s arrest. Jackson never responded to the state’s subpoena to appear for the

rescheduled trial dates, although he had responded to an earlier subpoena on May 5. On

May 5, Jackson appeared at a pretrial hearing and informed the prosecutor that he “had

no intention of testifying” and that he “intended to take the [F]ifth [Amendment].” While

appellant argues that Jackson did not have the right to take the Fifth Amendment because

he was not appealing his conviction, it is reasonable to infer that Jackson, who likely is

not knowledgeable about the subtleties of Fifth Amendment protections, meant that he

would not testify in appellant’s upcoming trial.


                                            10
         The record also establishes that Jackson and appellant had exchanged a series of

letters through the mail in the fall and winter of 2014, and that appellant threatened

Jackson about testifying at appellant’s upcoming trial. A defendant’s intimidation of a

witness constitutes wrongful conduct that allows other competent evidence to take the

place of the witness’s testimony. See State v. Black, 291 N.W.2d 208, 214 (Minn. 1980)

(affirming the district court’s finding that the defendant forfeited his right to confront the

victim when she refused to testify because he intimidated her into silence), abrogation on

other grounds recognized by State v. Jones, 556 N.W.2d 903, 909 n.4 (Minn. 1996). A

police officer met with Jackson in December 2014 to discuss threatening letters written

by appellant and addressed to Jackson that jail staff had discovered in appellant’s jail cell.

Jackson informed the officer that he was scared of appellant’s family and what could

happen to him if he testified against appellant at the trial.     The district court made a

proper common-sense inference that appellant’s letters to Jackson were the driving force

behind Jackson’s absence from appellant’s trial.        Hence, the district court properly

determined that appellant forfeited his right to confront Jackson at trial through his own

wrongful conduct.

         Moreover, the district court did not err in admitting portions of Jackson’s guilty

plea under the “declarations against penal interest” exception for unavailable witnesses

under Minn. R. Evid. 804(b)(3). See State v. Gatson, 801 N.W.2d 134, 150-51 (Minn.

2011).     Here, Jackson was unavailable to testify. See id. At an omnibus hearing,

Jackson pleaded guilty to aiding and abetting third-degree burglary without the benefit of

a plea deal or any advance knowledge of what his sentence might be. Id. Jackson’s


                                             11
statements subjected him to criminal liability for the burglary, as he admitted that on

August 9, 2013, appellant accompanied him to Skinner’s Pub and that they intended to

burglarize the pub. Id. Jackson admitted to “thr[owing] a screen” to divert attention

away from appellant, who took the money from the office in the pub’s basement.

Jackson admitted that the burglary was successful and that he left with money from the

pub that did not belong to him.      The statement was wholly inculpatory because it

indicated that Jackson participated in the burglary with appellant and he subjected

himself to criminal liability equally with appellant. See State v. Morales, 788 N.W.2d

737, 764-766 (Minn. 2010); see also State v. Usee, 800 N.W.2d 192, 199 (Minn. App.

2011), review denied (Minn. Aug. 24, 2011). There was no reason for Jackson to make

these statements unless he believed that they were true, and the record supports Jackson’s

testimony. For these reasons, Jackson’s testimony is admissible under Minn. R. Evid.

804(b)(3).

      Affirmed.




                                           12
