                        This opinion will be unpublished and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
                                   A15-2036

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                Andrew John Kramer,
                                     Appellant.

                              Filed December 27, 2016
                                     Affirmed
                                  Connolly, Judge

                             Steele County District Court
                               File No. 74-CR-15-914


Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Daniel A. McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)

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



       Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and

Reilly, Judge.
                         UNPUBLISHED OPINION

CONNOLLY, Judge

       Appellant challenges his conviction of second-degree assault after a court trial,

arguing that the district court erred by using facts not in the record when it determined that

appellant knew that parks are closed in the middle of the night, by not ordering a Rule

20.01 competency evaluation of appellant done, and by not redacting, sua sponte, portions

of appellant’s statements to the police. Because we see no error, we affirm.

                                          FACTS

       On April 30, 2015, about 3:00 a.m., while J.W. and two others were asleep in J.W.’s

apartment, appellant Andrew John Kramer stood outside and yelled that J.W. should come

out. When J.W. responded by closing the window, appellant threw a rock through it. J.W.

and the two others then went outside, and appellant stabbed J.W. in the lower back with a

sharp knife. The police were called; J.W. was taken to the hospital, then air lifted to a

trauma unit.

       The police went to appellant’s apartment and interviewed him. Appellant denied

stabbing J.W. or being at the scene. He was arrested and taken to jail, where he again

denied the stabbing, but his statement in jail contradicted the statement he had made to the

police in his apartment. Appellant’s statements to the police included racist remarks,

references to his previous encounters with the criminal justice system, and references to

being attacked in the park where he had left his hat and sunglasses. Police officers later

found appellant’s hat and sunglasses at the scene of the stabbing.




                                              2
          Appellant was charged with second-degree assault. At a contested omnibus hearing,

appellant’s attorney requested that appellant’s competency be evaluated under Minn. R.

Crim. P. 20.01. Appellant declined the evaluation and asked to proceed with his court

trial.1

          During that trial, a witness and J.W. testified that appellant had stabbed J.W. The

district court heard unredacted versions of appellant’s statements to the police made in his

apartment and at jail. When the district court made the findings of guilty on the record, it

noted that appellant said at one point that he had been in the park, although appellant knew

the parks were closed at three in the morning, and that the contradictions within and

between appellant’s statements affected appellant’s credibility.

          The district court found appellant guilty as charged and sentenced him to 27 months

in prison. He challenges his conviction, arguing that: (1) the district court’s statement that

appellant knew parks are closed in the middle of the night deprived appellant of a fair trial

before an impartial factfinder and violated the Code of Judicial Conduct; (2) the district

court erred by not having a Rule 20.01 competency evaluation of appellant done; and

(3) the district court erred by not redacting, sua sponte, portions of appellant’s statements

to the police as unfairly prejudicial.

                                         DECISION

1.        The District Court’s Statement

          Appellant said to the officers who came to his apartment after the stabbing:


1
 The trial was held before Judge Karen Duncan, referred to hereinafter as “she”; Judge
Gerald Wolf presided at the sentencing hearing.

                                               3
               I went to Kwik Trip down by Dartt’s [Park] to go buy a candy
               bar [and] something to drink, minding my own business . . . I
               get out of Kwik Trip, I cross the street go through the trail at
               Dartt’s . . . and somebody came up from behind and started
               beating me up. . . .
               ....
               I lost it all [his hat and sunglasses] when they came at me.
               They came at me from behind. They hit me in the head, the
               back, the shoulder. I hit the ground and I was kinda down like
               this a little bit . . . .
               ....
               I didn’t even plan to go to a house. I actually was just going to
               Kwik Trip for a nice walk to come home, spend some time with
               my girlfriend upstairs, ‘cause she just . . . rented a movie, or
               borrowed a movie from her mom.
               ....
               I know . . . I got hit at least 3 times. I got hit once in the head
               for sure, but they, they kind of did a few more hits in the back,
               so I’m guessing maybe 2 or 3.
               ....
               I went to the store to go get something to drink and a candy bar
               to munch on and, I get beat up . . . on the way to [the store] . . .
               I didn’t make it that far . . . .

At the jail, appellant said to the police officers:

               I walked to Kwik Trip, and I went the long way, cause, like I
               said, it’s nice out. I was just enjoying the weather, la da da, the
               next thing you know I don’t even get to Kwik Trip. I get
               jumped in Dartt’s.
               ....
               I went through the Cedar, Elm Street area. I kind of zig zagged
               back and forth. No, actually I went straight through Central
               Park. I remember exactly what I did now.
               ....
               Yeah, I walked straight through downtown. I remember now.

In announcing its finding of fact, the district court stated:

               [Y]ou [appellant] had told the officers [who came to your
               apartment] that you had gone to the Kwik-Trip by the park and
               actually gone in and gotten something to drink and a candy bar.
               That changed as you continued to talk to the statement that you


                                                4
              hadn’t actually made it into that Kwik-Trip. So that was kind
              of one example of you . . . taking information that you knew,
              and then trying to weave things into a story that would provide
              you with a good alibi for this crime, such as being jumped in
              the park. And the fact that you didn’t have any purchase from
              Kwik-Trip, I believe, lead you to chang[e] your story from the
              fact that you’d been inside Kwik-Trip to make your purchases
              to [say that] you hadn’t made it that far at the time you got
              jumped.
                      Your route for going through the park when you know
              that the parks . . . are closed at that time of the morning [3:00]
              also affected the credibility of your statements. The fact that
              you would take the route to go through the park when your plan
              was to go home and watch a movie with your girlfriend didn’t
              seem to make a lot of sense. And also your report of the
              jumping incident where at one point you’d indicated that you’d
              been knocked down . . . but then it appeared that as you realized
              that the officers were checking you for injuries and you didn’t
              have injuries or dirt on you . . . you then changed the story and
              said in fact you hadn’t been knocked to the ground . . . you’d
              been moved forward . . . by being struck from behind.

(Emphasis added). Appellant argues that the italicized phrase both deprived him of a fair

trial and violated the Code of Judicial Conduct.

       For this argument, appellant relies on State v. Dorsey, 701 N.W.2d 238 (Minn.

2005). But appellant’s reliance is misplaced. In Dorsey,

              the [district court] judge, after openly questioning the veracity
              of a factual assertion made by a key defense witness,
              independently investigated that fact and then reported the
              results of her investigation to counsel. . . .We conclude that [the
              defendant] was deprived of the basic protection of an impartial
              judge and finder of fact. . . .

Id. at 253 (quotation marks omitted). Here, the district court conducted no investigation

either as to when parks are open or as to appellant’s knowledge of when parks are open.




                                              5
Appellant provides no other support for his view that the district court was not impartial,

and the record reveals none.

       Appellant also argues that the district court was impartial because she “introduced

into the proceedings a material fact that was favorable to the state—and which the state

had not yet introduced.” Id. at 251 (emphasis added). But appellant does not explain why

either the closing time of a park where he claimed to have been at the time of the stabbing

and to have left the hat and glasses, or his knowledge of the park’s closing time, could have

been a material fact in the trial of appellant for a stabbing that did not occur in the park,

when his hat and glasses were found at the scene of the stabbing, and both a witness and

the victim, J.W., testified that appellant had done the stabbing.

       The judge provided several reasons for her determination that appellant’s account

of having been attacked while walking through a park about 3:00 that morning was not

credible. The judge had heard statements from a witness and the victim that appellant had

been at the victim’s address and had stabbed the victim at the time appellant said he was in

the park and was attacked. The judge had also heard appellant’s statements to the police

in which he had given inconsistent accounts of where he had been and what had happened

at that time. Moreover, whether appellant knew or did not know the park was closed, and

whether the park was in fact closed or not closed, had no connection with the crime with

which appellant was charged or with the judge’s impartiality towards appellant.

       Dorsey also fails to support appellant’s argument that the reference to the closing

time of Owatonna parks violated the Code of Judicial Conduct. In Dorsey, a judge who

had independently investigated a witness’s factual assertion and reported the results of the


                                              6
investigation was found not to have violated the Code. Id. at 249. Here, there is no conduct

supporting a violation.

       The district court’s statement neither deprived appellant of a fair trial nor violated

the Code.

2.     Rule 20.01 Competency Evaluation

       Appellant argues that the district court erred and ignored the plain language of Minn.

R. Crim P. 20.01 by disregarding appellant’s attorney’s request to have appellant’s

competency evaluated and granting appellant’s request to proceed to trial. Appellate courts

review competency determinations on undisputed facts “to determine whether the district

court gave proper weight” to the evidence suggesting incompetence in the record. State v.

Camacho, 561 N.W.2d 160, 174 (Minn. 1997).

       At the omnibus hearing, appellant’s counsel noted that appellant had difficulty

understanding that hearsay could be used to find probable cause on a complaint and asked

that appellant’s competency be evaluated under Minn. R. Crim. P. 20.01 to see if he would

be able to assist in preparing his own defense. The district court asked appellant if he

wanted to have an evaluation. Appellant replied that he had been mistreated since the

beginning of the case and that he “had yet to see a reason why [he] should be sitting in jail

while the other person [i.e., the victim] walks away free due to the statements made” that,

in appellant’s view, were not reliable.

       The district court asked appellant if he thought he could work with his attorney to

decide if he wanted to call witnesses at trial. Appellant answered, “I have no witnesses.




                                             7
My statement is clear. I was alone” and objected that the victim, who appellant claimed

was admitting to a felony, was at home free of prosecution or charges.

       The district court noted that appellant and his attorney were talking about two

different things: while the attorney was talking about a competency evaluation, appellant

was talking about the resolution of his case. The district court asked appellant, “And do

you feel you should be taking medications?” to which appellant answered, “I feel I should

be able to go home . . . [b]ecause hearsay is not enough to hold me when you got two

people with two different stories and one of them is giving three or four different stories to

several different people and it’s on record.”

       The district court said it did not want to send appellant to St. Peter for an inpatient

evaluation if he did not feel it was necessary and told him that an evaluation would delay

his trial two or more months. Appellant responded, “Then my speedy trial would be thrown

out the window?” The district court told appellant that what he had been saying indicated

that he was “very aware of what the issues are” and that, if appellant was sufficiently aware

of the issues, they could have the trial as scheduled after the court had determined whether

there was probable cause. Appellant then spoke to his attorney, who told the district court,

“[I]n terms of the request for a Rule 20 [evaluation], it doesn’t sound to me from [appellant]

that he wants to get an evaluation[,] . . . and I just want to make it very clear that’s against

the advice of Counsel.”

       Nothing in the omnibus-hearing transcript indicates that appellant was not

competent to understand the issues or to participate in his trial. He was very clear in stating

that there were no witnesses, in accord with his alibi that he was attacked while alone in a


                                                8
park at the time the stabbing occurred. He reiterated his desire for a determination of

probable cause and for a speedy trial, and he consistently opposed his attorney’s view that

he should have a Rule 20 evaluation. A defendant is competent if he is able “to consult

with his lawyer with a reasonable degree of rational understanding” and “has a rational as

well as factual understanding of the proceedings against him.” Id. at 171 (quotations

omitted). Appellant met that standard. The district court did not err in granting his request

to move forward with the trial rather than delay it for a competency evaluation.

3.     Unredacted Statements

       Appellant’s statements to the police, made first in his apartment, then in jail,

contained racist remarks and references to his previous encounters with the criminal justice

system. He did not object to the introduction of the statements at trial, but now argues that

the district court should have redacted the racist remarks sua sponte and that the references

to appellant’s previous crimes were improperly admitted Spreigl evidence. Because no

objection was made at trial, appellant must show that the admission of the remarks and the

references to past involvement with police and the criminal justice system was error that

was plain, i.e., clear and obvious, and that affected substantial rights. See State v. Griller,

583 N.W.2d 736, 740 (Minn. 1998). If appellant makes this showing, the error will be

corrected only if it “seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.” See State v. Benton, 858 N.W.2d 535, 540 (Minn. 2015).

       But appellant’s statements were not admitted as Spreigl evidence: they were

admitted to show that appellant had provided conflicting accounts of his activities at the

time the stabbing occurred. Appellant argues that evidence of “[his] past assaults, prior


                                                9
use of drugs, and poor relationship with the police [was] irrelevant to the current charge.”

But the admission of that evidence did not violate Minn. R. Evid. 404 (a) (prohibiting

character evidence introduced for the purpose of proving conformity therewith on a

particular occasion), and none of that evidence had any relationship or similarity to the

crime with which appellant was charged. The evidence did show that appellant changed

his story while speaking to the police, that appellant had a motive to assault J.W., and that

appellant’s hat and gloves were not where he said he had lost them, i.e., in the park, but

rather outside J.W.’s residence, where the stabbing occurred and where appellant denied

having been.

       Moreover, at a court trial, the risk that appellant’s references to previous altercations

with the police would have prejudiced the factfinder or affected the verdict was

significantly diminished. See State v. Burrell, 772 N.W.2d 459, 467 (Minn. 2009) (“[T]he

risk of unfair prejudice [from evidence of prior gang shootings] in the context of a bench

trial is . . . small.”) Appellant cites no statute or caselaw to support his implied view that

a district court judge has an obligation to redact from statements submitted at a court trial

all references to previous encounters with police or illegal activities.

       Finally, appellant’s statements were not used for any improper purpose. Appellant

claims that they contained “strictly propensity evidence” and relies on State v. White, 295

Minn. 217, 226, 203 N.W.2d 852, 858-59 (1973) to argue that “introduction of [a]

defendant’s criminal record . . . by testimony not impeaching the credibility of defendant

as a witness . . . would [not] beyond a reasonable doubt constitute harmless error.”

(Emphasis added). This evidence was presented to impeach the credibility of a witness,


                                              10
namely appellant: Both the internal inconsistencies in the statements themselves and the

fact that both the victim and a witness testified that appellant did the stabbing corroborated

the finding that appellant’s account of being attacked in the park when the stabbing

occurred was not credible. Moreover, the statements did not concern any prior stabbings

and therefore did not show any propensity for this particular crime.

       The district court did not commit clear error by not sua sponte redacting appellant’s

statements prior to the court trial, and we see no error in not ordering a competency

evaluation or in observing that appellant knew when the parks were closed.

       Affirmed.




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