                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-1408

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                Alvin Lee Fitzgerald, Jr.,
                                       Appellant.

                                   Filed July 21, 2014
                                        Affirmed
                                      Reilly, Judge

                            Pennington County District Court
                                File No. 57-CR-12-504

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

Alan G. Rogalla, Pennington County Attorney, Kristin J. Hanson, Assistant County
Attorney, Thief River Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Reilly, Presiding Judge; Ross, Judge; and Bjorkman,

Judge.

                         UNPUBLISHED OPINION

REILLY, Judge

         Appellant Alvin Fitzgerald appeals his conviction of third-degree burglary,

arguing that the district court erred in its response to the jury’s questions during
deliberation and that the prosecutor committed misconduct in her closing statement.

Additionally, appellant raises several issues in his pro se supplemental brief. We affirm.

                                         FACTS

       Respondent State of Minnesota charged appellant by complaint with third-degree

burglary, in violation of Minn. Stat. § 609.582, subd. 3 (2010), on June 18, 2012. The

complaint alleged that appellant entered Speeds Auto Service in Thief River Falls without

consent and stole $30 in change from a vending machine on June 14, 2012. A jury trial,

held in April 2013, provided the following evidence.

       On the night of June 14, 2012, Officer Chris Hoglin, a police officer with the City

of Thief River Falls, received a call from dispatch notifying him of a suspicious person

shaking the doors of McMullen Auto Sales.            Dispatch indicated that the person

subsequently walked toward a Kmart. When Officer Hoglin and another officer went to

the scene, they stopped and talked with appellant, who was the only man walking in the

Kmart parking lot. Appellant told the officers he was “passing through the area on foot”

from Grand Forks, North Dakota, on his way toward Badger, Minnesota, to see his

daughter. After noticing a bulge larger than a baseball in appellant’s front pocket, Officer

Hoglin patted down appellant and determined that appellant’s front pocket contained

change that appellant claimed came from panhandling. Appellant’s rear pocket held a

tire gauge, which appellant said he planned to disassemble later and use to smoke

marijuana. When Officer Hoglin asked appellant “why he was shaking the door [at

McMullen Auto Sales],” appellant responded that “he planned on buying a soda from the

business.” Officer Hoglin replied that “there were no soda machines at that business.”


                                             2
After dispatch verified that appellant was who he said he was, Officer Hoglin released

appellant and followed him as he walked through town. Appellant walked west, which is

not the direction of Badger.

       Around 7:45 the next morning, Julie Efteland arrived for work at Speed’s Auto

Service, a business adjacent to McMullen Auto Sales, in Thief River Falls, and saw that,

although the building had been in “normal” condition when she left the previous

afternoon around 5:00, it was now a mess. A vending machine in the reception area had

been tampered with. The top part of the machine, which contained candy, was sitting in

another room, and the door to the bottom part of the machine, which contained pop, had

been pried open. Although the safe in the owner’s office had been tampered with, it had

not been opened. Ms. Efteland noticed that the change from the vending machine that

was kept in a bank bag and change stored in a beef jerky container was missing from her

desk drawer. She estimated about $30 was missing from these containers and also noted

“a couple bucks” missing from a breast cancer donation box. Greg Ornquist, the owner

of Speed’s Auto Service and Ms. Efteland’s brother, estimated that between $30 and $50

was missing.

       When Mr. Ornquist arrived at Speed’s Auto Service about ten minutes later, he

instructed Ms. Efteland to call the police. After she did, the two walked through the back

of the shop where the cars awaiting repair are kept. They noticed the back door had been

opened, either through “pr[ying]” or being “busted in,” and surmised that the burglar

entered the business through the back door.       Mr. Ornquist noted that a bottle of

homemade wine sat on top of a laptop computer. None of the auto shop tools appeared to


                                            3
be missing, but some of the tools were damaged, apparently because they had been used

to open the vending machine. Speed’s Auto Service usually has five to ten tire gauges,

but Mr. Ornquist did not know whether one was missing.

       Neither Ms. Efteland nor Mr. Ornquist remembered seeing appellant on June 14.

Ms. Efteland testified that either she or Mr. Ornquist is present in the reception area when

the business is open, and Mr. Ornquist testified that, if both of them are gone, the worker

in the first auto stall can see into the reception area. Ms. Efteland and Mr. Ornquist both

testified that they did not give appellant permission to enter Speed’s Auto Service and

steal from them or damage their equipment.

       Deputy Chief Craig Mattson of the Thief River Falls Police Department

responded to the burglary complaint at Speed’s Auto Service and called a department

investigator to process the scene. The investigator was able to obtain fingerprints from

the back side of the vending machine and the bottle containing homemade wine, but she

did not attempt to lift prints off of any of the tools that had been moved. A forensic

scientist compared the fingerprints found at the scene with fingerprints taken from

appellant.   Of the eight prints the forensic scientist received, two were sufficiently

detailed to compare with appellant’s fingerprints. The result of the comparison of one of

the prints was inconclusive, but the forensic scientist identified the other print as a match

to appellant’s right index finger. At trial, the forensic scientist testified that it is not

uncommon for prints not to be present on a surface and that it is typically impossible to

tell how old a latent print is.




                                             4
       Officer Hoglin arrested appellant without incident for the burglary at Speed’s Auto

Service. The jury found appellant guilty of third-degree burglary on April 11, 2013, and

appellant was subsequently sentenced. He now appeals.

                                     DECISION

                                             I.

       Appellant argues that the district court erred when it referred the jury back to the

original jury instructions rather than give supplemental instructions to clarify the jury’s

questions. Appellant contends that the jury’s questions demonstrate that it was confused,

and the court’s response did not correct that confusion.

       In its original instructions, the district court read the following instruction for

burglary in the third degree:

                     Burglary in the Third Degree – Defined. The statutes
              of Minnesota provide that whoever enters a building without
              the consent of the person in lawful possession and steals
              while in the building is guilty of a crime.
                     Burglary in the Third Degree – Elements. The
              elements of burglary in the third degree are: First, the
              defendant entered a building. A building is a structure
              suitable for affording shelter for human beings. Second, the
              defendant entered a building without the consent of the
              person in lawful possession. The entry does not have to have
              been made by force or by breaking in. Entry through an open
              or unlocked door or window is sufficient. Third, while in the
              building, the defendant stole. Fourth, the defendant’s act took
              place on or about June 14, 2012, in Pennington County,
              Minnesota. If you find that each of these elements has been
              proven beyond a reasonable doubt, the defendant is guilty. If
              you find that any element has not been proven beyond a
              reasonable doubt, the defendant is not guilty.




                                             5
       After deliberations had begun, the jury submitted two questions to the district

court: “Is it illegal to come into a business during business hours[?]” and “Is [sic] #2

mean during or after business hours[?]” Off the record, the district court discussed with

the prosecutor and appellant’s attorney what an appropriate response might be. The

district court responded by writing that “[y]our question seems to go to a question of fact

that the court cannot answer. Sorry, but you will have to rely on the instructions as given

and your recollection of the evidence.”       Both attorneys agreed the district court’s

response was acceptable.

       We review a district court’s decision to give additional instructions to a jury for an

abuse of discretion. See State v. Laine, 715 N.W.2d 425, 434 (Minn. 2006) (“It is well

established that the trial judge may, in his discretion, give additional instructions in

response to a jury’s question on any point of law.” (quotation omitted)). In response to a

jury’s question on a point of law, the district court may decide “to amplify previous

instructions, reread previous instructions, or give no response at all.” State v. Murphy,

380 N.W.2d 766, 772 (Minn. 1986); see Minn. R. Crim. P. 26.03, subd. 20(3)(a)-(f)

(delineating the ways in which a district court may respond to a jury’s request for

additional instructions during deliberation). The only real limitation placed on the trial

court is that the additional instruction may not be given in such a manner as to lead the

jury to believe that it wholly supplants the corresponding portion of the original charge,”

and additional instructions clarifying the original instructions may be appropriate if a jury

is confused. Murphy, 380 N.W.2d at 772.




                                             6
       Because appellant did not object to the district court’s response, we review the

district court’s response for plain error. See State v. Moore, 846 N.W.2d 83, 90 (Minn.

2014) (noting an appellate court has discretion to review an unobjected-to instruction if it

constitutes plain error affecting substantial rights).    “Under the plain-error test, an

appellant must show that there was (1) an error; (2) that is plain; and (3) the error must

affect substantial rights.” State v. Vang, ___ N.W.2d ___, 2014 WL 1805320, at *7

(Minn. 2014). If all three prongs of the plain-error test are met, “we then assess whether

the error should be addressed to ensure the fairness and the integrity of the judicial

proceedings.” Gulbertson v. State, 843 N.W.2d 240, 247 (Minn. 2014).

       After consultation with both parties’ counsel, the district court here told the jury

that the question related to a factual matter upon which it could not comment. This is a

permitted response under the Minnesota Rules of Criminal Procedure. See Minn. R.

Crim. P. 26.03, subd. 20(3)(d) (“The court may tell the jury that the request is a factual

matter that the jury, not the judge, must determine.”). Appellant argues this response was

erroneous because the jury was clearly confused, and the district court’s response did not

correct the confusion.

       Minnesota law provides that “[w]hoever enters a building while open to the

general public does so with consent except when consent was expressly withdrawn before

entry.” Minn. Stat. § 609.581, subd. 4 (2010). Appellant contends that the district court

erred by failing to correct the jury’s misunderstanding that entering a business during

business hours cannot constitute burglary. We disagree.




                                             7
       Appellant has not shown that the district court’s instruction was error because the

evidence presented at trial provides no factual basis from which a jury could find that a

crime was committed during business hours. The testimony presented at trial shows that

the vending machine had not been tampered with before Ms. Efteland left work on

June 14 around 5:00 p.m., and that, when she returned to work the following morning, the

vending machine had been broken into and change had been stolen from it. Both Ms.

Efteland and Mr. Ornquist testified that they did not see appellant on June 14, 2012.

Although the record does not contain evidence indicating Speed’s Auto Service’s normal

operating hours, the record shows that the burglary occurred sometime after Ms. Efteland

left Speed’s Auto Service around 5:00 and before she returned the next morning. And

although appellant’s counsel argued in closing that appellant’s fingerprints on the candy

machine were the result of appellant visiting Speed’s Auto Service during business hours

in an attempt to purchase some soda, this visit would have occurred during business

hours and at a time when the money from the vending machine had not yet been stolen.

Whoever stole the money from the vending machine did so when Speed’s Auto Service

was closed to the public. Therefore, the jury’s question of whether a person may legally

enter a business during business hours is not related to whether the state had proven the

second element of burglary, that appellant entered Speed’s Auto Service without consent.

       Appellant cites State v. Shannon, 514 N.W.2d 790, 793 (Minn. 1994), for the

proposition that “it is prejudicial error for a district court to respond to a jury request for

clarification by refusing to correct the confusion” when “the jury is ‘obviously

confused.’” While this may be true, the facts of Shannon differ in an important respect


                                              8
from those in appellant’s case. In Shannon, the prosecutor misstated the law during

closing argument by improperly calling heat-of-passion manslaughter “heat of passion

murder” and told the jury that, in evaluating whether the elements of heat-of-passion

manslaughter had been met, it must use the “reasonable person . . . who wasn’t on drugs

or wasn’t taking alcohol” standard. Id. at 791-92. When the jury asked questions during

deliberation that went to whether being under the influence of chemicals was a factor in

determining what a reasonable person would have done in the situation, the district court

responded by referring the jury back to the original instructions. Id. at 792. On appeal,

the Minnesota Supreme Court reasoned that the jury’s questions were “presumably . . . a

result of the prosecutor’s misleading statement in closing argument” and concluded the

district court’s failure to correct the confusion about the proper standard was prejudicial

error. Id. at 792-93. Shannon therefore is distinguishable because the jury’s confusion

there arose from misstatements made by the prosecutor during closing statement. Such is

not the case here.

       Because the evidence admitted at trial does not lend any support for a factual

finding that the theft from the vending machine occurred during business hours and the

prosecutor did not misstate the law, the district court’s response, which referred the jury

back to its original instructions, is not erroneous.

                                              II.

       Appellant contends that certain statements in the prosecutor’s closing argument

constitute prosecutorial misconduct.        Before voir dire began, appellant’s counsel

requested that law enforcement testimony about its interaction with Jennifer McMullen,


                                               9
the woman who initially called law enforcement on June 14, be limited to describing

“receiving a call about suspicious activity and [law enforcement’s] response to that call”

because Ms. McMullen would not be testifying at trial. The prosecutor stated that law

enforcement’s testimony regarding Ms. McMullen “would be just based on what the

dispatch reports . . . and not anything she says directly to them,” unless the defense

“open[ed] the door” by asking why law enforcement stopped appellant.

       Officer Hoglin testified that “[d]ispatch received a call from McMullen Auto Sales

that said they had somebody who appeared to be getting into their building shaking

doors.” He also testified later that, in response to his question of why appellant was

shaking the door, appellant stated that he planned to buy a soda. In her closing argument,

the prosecutor told the jury, “We didn’t see Mr. Fitzgerald in Speed’s Auto. He’s found

adjacent from Speed’s Auto pulling on the door of another business.                That’s

circumstantial evidence.” A short time later, she stated,

              The [finger]print is in the exact place you would want to find
              a print to be when this [vending] machine has been moved.
              That’s the night before and with all the circumstantial
              evidence this is not a coincidence. It’s not a coincidence that
              Mr. Fitzgerald was in the same place a burglary took place,
              pulling on a door.

Appellant did not object to these statements at trial.

       When a defendant fails to object, we review alleged prosecutorial misconduct for

plain error. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Once an appellant

shows an error that is plain, however, the burden shifts to the state to prove that no




                                             10
reasonable likelihood exists that the absence of the misconduct would have a significant

effect on the jury’s verdict. Id.

       “[A] police officer testifying in a criminal case may not, under the guise of

explaining how the investigation focused on defendant, relate hearsay statements of

others.” State v. Litzau, 650 N.W.2d 177, 182 (Minn. 2002) (quotations omitted). It is

plain error for a prosecutor, in closing statement, to “invite[] the jury” to use a

defendant’s suppressed statement, admitted only for impeachment purposes, as

substantive evidence. State v. Radke, 821 N.W.2d 316, 329 (Minn. 2012). Although

Officer Hoglin testified only that dispatch received a call about “somebody” shaking the

doors at McMullen Auto Sales, the prosecutor, in her closing statement, added that the

person shaking the doors was appellant. Were the prosecutor’s statements in closing

argument the only statements linking appellant to the person shaking the doors of

McMullen Auto Sales, appellant would have a strong argument that the prosecutor

committed misconduct. But Officer Hoglin also testified that appellant told him he shook

the doors in an attempt to purchase a soda, and that statement is not hearsay. See Minn.

R. Evid. 801(d)(2)(A) (defining a statement made by a party and offered against that

party as nonhearsay). The prosecutor did not violate the agreement made with defense

counsel not to admit the hearsay testimony of Ms. McMullen through the testimony of

Officer Hoglin but instead referenced appellant’s own statements to Officer Hoglin. The

statements the prosecutor made in her closing argument were not erroneous and do not

constitute prosecutorial misconduct. There is no need to address the other prongs of

Ramey because appellant has shown no error.


                                          11
                                             III.

       Appellant alleges several reversible errors in his pro se supplemental brief. None

are meritorious.

Confrontation Clause

       Appellant contends that he was denied a fair trial when the prosecutor failed to call

Ms. McMullen to testify as to what she told the dispatch officer and thereby violated the

Confrontation Clause. Because appellant did not raise this issue below, we review for

plain error. See Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn.

1998) (stating test for plain error).

       “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him.” U.S. Const., amend. VI. The Confrontation Clause

“prohibits ‘admission of testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had a prior opportunity for cross-

examination.’” State v. Warsame, 735 N.W.2d 684, 689 (Minn. 2007) (quoting Crawford

v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365 (2004)). A statement is

nontestimonial “when made in the course of police interrogation under circumstances

objectively indicating that the primary purpose of the interrogation is to enable police

assistance to meet an ongoing emergency.” Davis v. Washington, 547 U.S. 813, 822, 126

S. Ct. 2266, 2273 (2006). Moreover, “the Confrontation Clause does not bar the use of

testimonial statements for purposes other than establishing the truth of the matter

asserted.” State v. Hull, 788 N.W.2d 91, 100 (Minn. 2010) (quotation omitted). Whether




                                             12
the admission of evidence violates a defendant’s confrontation rights is a question of law

reviewed de novo. Warsame, 735 N.W.2d at 689.

       Here, the facts indicate that Ms. McMullen called the police as she was observing

a person shaking the doors of McMullen Auto Sales. The purpose of her call was to

enable police to respond to a possible criminal event—a person attempting to break into

McMullen Auto Sales. Ms. McMullen’s call is analogous to the 911 call in State v.

Wright, 726 N.W.2d 464, 473-74 (Minn. 2007), where the Minnesota Supreme Court

concluded that the portions of a 911 call made while a domestic abuser had yet to be

apprehended were nontestimonial because the caller was not acting as witness by calling

police to obtain assistance during an ongoing emergency. Because Ms. McMullen’s call

was nontestimonial in nature, it does not implicate appellant’s Confrontation Clause

rights. Even if the statement were testimonial, however, Officer Hoglin’s testimony

regarding the call was not offered to prove the truth of the matter asserted and therefore

did not violate appellant’s confrontation rights. See Hull, 788 N.W.2d at 100. The

district court did not err in admitting the testimony.

Hearsay

       Appellant argues that the district court erred in admitting statements regarding the

contents of the dispatch call. We review a district court’s evidentiary rulings for abuse of

discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). When a defendant fails to

object to the admission of evidence, our review is under the plain-error standard. See

Griller, 583 N.W.2d at 740.




                                              13
       As noted above, hearsay is an out-of-court statement offered to prove the truth of

the matter asserted, Minn. R. Evid. 801(c). A statement made by a party and offered

against that party at trial is not hearsay, Minn. R. Evid. 801(d)(2)(A). Although appellant

is correct that testimony about what Ms. McMullen said to the dispatch operator, if not

made in court and by Ms. McMullen herself, would constitute hearsay if offered to prove

the truth of what Ms. McMullen told the dispatch officer, such testimony is not on the

record. Ms. McMullen did not testify, and Officer Hoglin mentioned the dispatch call to

show why police were called to the scene, not to prove the truth of the dispatch caller’s

statements. Moreover, the statements appellant made to Officer Hoglin in response to his

question of why appellant was shaking the doors are not hearsay because the Minnesota

Rules of Evidence expressly define statements of a party-opponent as nonhearsay. Minn.

R. Evid. 801(d)(2)(A). The district court did not abuse its discretion by admitting these

statements because they do not constitute hearsay.

Ineffective Assistance of Counsel

       Finally, appellant contends he received ineffective assistance of counsel because

his attorney did not subpoena Ms. McMullen to testify and did not object to allegedly

inadmissible hearsay evidence or the prosecutor’s alleged violation of his rights under the

Confrontation Clause. As appellant has not made any postconviction motions, he raises

this argument for the first time on appeal.

       We generally analyze ineffective-assistance-of-counsel claims as trial errors under

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Dereje v. State, 837

N.W.2d 714, 721 (Minn. 2013). Under that analysis, “an appellant must demonstrate that


                                              14
counsel’s performance fell below an objective standard of reasonableness, and that a

reasonable probability exists that the outcome would have been different but for

counsel’s errors.”   State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003) (quotation

omitted). Trial counsel’s performance is presumed reasonable. Schneider v. State, 725

N.W.2d 516, 521 (Minn. 2007).

       Appellant’s pro se supplemental brief shows a general dissatisfaction with the fact

he was convicted. He appears to believe that, but for his attorney’s failure to call Ms.

McMullen to testify, he would not have been convicted.            “Decisions about which

witnesses to call at trial and what information to present to the jury are questions of trial

strategy that lie within the discretion of trial counsel.” Leake v. State, 737 N.W.2d 531,

539 (Minn. 2007). We generally will not review an ineffective-assistance-of-counsel

claim based on trial strategy.    Vang, ___ N.W.2d ___, 2014 WL 1805320, at *12.

Appellant has not shown that counsel’s decision not to subpoena Ms. McMullen was not

a strategic decision, and we conclude counsel’s performance was objectively reasonable.

       Appellant also asserts that he received ineffective assistance of counsel because

his trial attorney did not object to alleged inadmissible hearsay statements and violations

of the confrontation clause. “Decisions about objections at trial are matters of trial

strategy.” Leake, 737 N.W.2d at 542 (citing White v. State, 711 N.W.2d 106, 110 (Minn.

2006)). The discussion above shows that appellant is incorrect on the law regarding

hearsay.   Appellant has failed to show that counsel’s performance with respect to

evidentiary objections fell below an objective standard of reasonableness, and we

conclude counsel’s actions were objectively reasonable.


                                             15
      Additionally, the trial transcript contradicts appellant’s assertions that his attorney

was not representing his interests. Appellant’s counsel thoroughly cross-examined all the

state’s witnesses and offered reasonable arguments for appellant’s innocence in his

opening and closing statements. Appellant’s contention that his counsel was ineffective

is based on appellant’s own misunderstanding of the law. After a thorough review of the

record in this case, we conclude that appellant did not receive ineffective assistance of

counsel.

      Affirmed.




                                            16
