                          This opinion will be unpublished and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
                                     A13-2327

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                    Levi Braziel, Jr.,
                                      Appellant.

                                Filed December 29, 2014
                    Affirmed in part, reversed in part and remanded
                                       Ross, Judge

                             Hennepin County District Court
                               File No. 27-CR-13-19649

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Minneapolis,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson,
Assistant Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Smith,

Judge.

                         UNPUBLISHED OPINION

ROSS, Judge

         Minneapolis police conducting drug-deal surveillance watched Levi Braziel

engage in multiple hand-to-hand street transactions and found nine rocks of cocaine in a
tissue Braziel tossed aside when he saw officers approaching. On the morning of his trial

for third-degree sale and fifth-degree possession of a controlled substance, Braziel asked

for additional discovery to obtain the police department’s internal affairs records,

including records arising from his prior complaint about one of the arresting officers. The

district court denied the motion as untimely and later refused to permit Braziel to

question the officer about the internal affairs investigation. Although the district court

abused its discretion by refusing to permit the questioning into the officer’s potential bias,

the error was harmless. We affirm Braziel’s conviction of third-degree sale, but we

reverse the conviction of fifth-degree possession and remand to the district court to

vacate that conviction and amend the sentence because one of the convictions arose from

a lesser-included offense.

                                          FACTS

       Minneapolis police received a tip from a confidential informant in June 2013

reporting a person acting suspiciously on Franklin Avenue. Plainclothes officers Steven

Lecy and Jamie Karshbaum arrived and investigated from an unmarked van. They

recognized the man who matched the description as Levi Braziel, whom Officer Lecy had

previously arrested. They watched Braziel interact with three different people in hand-to-

hand transactions during which Braziel removed something from a crumpled tissue in his

left hand, handed the item to someone, and then received cash from that person.

       Lecy and Karshbaum decided to arrest Braziel and called a uniformed officer,

Sergeant Brian Anderson, to assist. Sergeant Anderson approached Braziel. When Braziel

appeared to notice the sergeant approaching, he turned quickly. Sergeant Anderson saw


                                              2
Braziel look down and move his hand near his waist. Officer Lecy ran toward Braziel

from the opposite direction. Lecy saw Braziel first try to conceal the tissue and then

throw it to the ground. Sergeant Anderson restrained Braziel, and Lecy picked up the

discarded tissue. The tissue held nine individually wrapped rocks of crack cocaine, each

with a street value of $20. The officers also found $267 cash in Braziel’s pockets, mostly

in 20-dollar bills.

       Officer Lecy knew Braziel. He had arrested him in 2010 for suspected drug

dealing. See State v. Braziel, No. A11-0748, 2012 WL 1813281 (Minn. App. May 21,

2012). We reversed the conviction that arose from that arrest because we deemed the

search invalid, id. at *5, and according to Braziel, Braziel filed an internal-affairs

complaint against Lecy related to that arrest.

       The state charged Braziel in this case with fifth-degree possession and third-

degree sale of a controlled substance. Braziel demanded a speedy trial, and the district

court scheduled the jury trial.

       Braziel asked for additional discovery on the morning set for trial. He sought the

police department’s internal-affairs records of the arresting officers, including the records

arising from his own alleged prior complaint about the 2010 arrest. Braziel had

previously asked his appointed counsel to gather these records, but she had not attempted

to obtain them. The district court denied the motion as untimely. Braziel dismissed his

appointed counsel. The attorney continued to assist him in an advisory capacity. Braziel

at first requested a continuance to prepare for trial, but he withdrew the request and

represented himself at trial.


                                             3
       The state introduced testimony tending to prove the account detailed above. The

prosecutor called the three arresting officers. She elicited testimony about how officers in

their unit generally receive and use tips. She also asked Officer Lecy to discuss the

specific tip in this case. The officer testified that he had received information that a black

male wearing a black polo-style shirt and white tennis shoes was dealing drugs at Tenth

Avenue and East Franklin Avenue. Braziel objected unsuccessfully to the admission of

this hearsay testimony.

       Braziel cross-examined the officers, attempting to pursue a theme of police bias

against him. Braziel tried to ask Officer Lecy about the alleged internal affairs

investigation, and he also attempted to elicit testimony that the officers had mistreated

him during his arrest in this case. The district court prohibited this questioning.

       The jury convicted Braziel of third-degree sale and fifth-degree possession of a

controlled substance. See Minn. Stat. §§ 152.023, subd. 1(1), .025, subd. 2(b)(1) (2012).

The district court sentenced Braziel to 60 months on the third-degree conviction and 24

months on the fifth-degree conviction, and it ordered that both sentences be served

concurrently. Braziel appeals.

                                      DECISION

       Braziel cites what he contends are trial irregularities and asks us to reverse his

conviction or to remand so the district court can assess the admissibility of Officer Lecy’s

internal affairs file in camera. He also asks us to vacate his conviction of fifth-degree

possession and amend his sentence. Although we agree that the district court should have

allowed Braziel to cross-examine officers to explore their alleged bias against him, we


                                              4
believe any errors are harmless. Because Braziel persuasively argues, and the state

agrees, that he cannot be convicted and sentenced for the lesser-included offense of

possession, we reverse that conviction and remand for the district court to amend the

sentence.

                                              I

       Braziel argues that the district court denied his right to discover public information

about Officer Lecy in the police department’s internal-affairs file. District courts have

broad discretion in criminal discovery rulings. State v. Burrell, 697 N.W.2d 579, 604

(Minn. 2005). Braziel’s argument about the internal-affairs file attempts to fault the

district court for the shortcomings of his own defense, and it also rests on a

mischaracterization of events at trial.

       Braziel argues that he was entitled to the discovery that he sought on the day of

trial. His argument fails for two reasons.

       First, Braziel’s argument does not take into account the reason for the district

court’s decision—untimeliness. He waited until the day of trial to seek the discovery, so

the district court could either order a continuance to allow the discovery or deny the

discovery request because no continuance was sought. The district court clearly rested its

decision on its concern about the timeliness of Braziel’s trial. Ordinarily we review the

district court’s denial of a motion for a continuance under a clear-abuse-of-discretion

standard. State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987). But here, Braziel himself

took the issue off the table. After Braziel’s discovery request, the district court denied the

request because of its impact on the trial date, but it then twice offered Braziel the chance


                                              5
to postpone the trial (once before jury selection and once before opening statements). The

court carefully explained that if a continuance were granted, Braziel could renew his

discovery requests. Braziel then clarified that he did not want a continuance. Because

Braziel chose to proceed to trial rather than to delay trial for the district court to explore

his last-minute discovery request, he cannot successfully claim that the district court

abused its discretion by refusing his continuance-related discovery request.

       Even if Braziel could show an abuse of discretion in the district court’s decision to

deny his discovery request, still his appeal of the decision would fail. He insists that the

information he sought through his day-of-trial discovery request should not have been

withheld from him because the information is publicly available. His premise defeats his

argument because it establishes that he was not prejudiced by the district court’s

discovery ruling. See State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (requiring

prejudice before reversing based on exclusion of evidence). Generally, with respect to

information on individuals, “[a]ll government data collected, created, received, [or]

maintained . . . by a government entity shall be public unless classified by statute . . . as

private or confidential.” Minn. Stat. § 13.03, subd. 1 (2012). For public employees, like

Officer Lecy, public personnel data includes “the existence and status of any complaints

or charges against the employee, regardless of whether the complaint or charge resulted

in a disciplinary action,” as well as “the final disposition of any disciplinary action

together with the specific reasons for the action.” Minn. Stat. § 13.43, subd. 2(a)(4)–(5)

(Supp. 2013). Because Braziel specifies that the only information he sought through

discovery was public data, he necessarily acknowledges that he could have obtained the


                                              6
information from the city or police department on his mere request without regard to any

discovery decisions by the district court. See Minn. Stat. § 13.03, subd. 3(a), (c) (2012)

(requiring government entities to copy and transmit public data on request). Because

Braziel gives no reason why he could not have obtained the public information on his

own, he has not established that the district court’s discovery decision prejudiced him.

                                             II

       Braziel argues that even though he went to trial without obtaining Officer Lecy’s

internal-affairs record, he should have been allowed to cross-examine the officer about its

underlying bases and contents. We review a challenge to the district court’s decision to

exclude evidence for a clear abuse of discretion that prejudiced the appellant. Amos, 658

N.W.2d at 203.

       We agree that the fact of Braziel’s complaint against Officer Lecy and any

resulting investigation or discipline were fair ground for Braziel’s cross-examination to

reveal possible bias against him. A witness’s bias is always relevant to his credibility and

to the weight of his testimony, and bias may be proved using extrinsic evidence. Minn. R

Evid. 616; State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn. 1995). Not only is bias

always relevant, the Confrontation Clause “contemplates a cross-examination of the

witness in which the defendant has the opportunity to reveal a prototypical form of bias.”

Lanz-Terry, 535 N.W.2d at 640. The state explains that “the trial court summarized that

the defense theory was based on an ongoing hostility by the police against Appellant,

who claimed that the police knew him, did not like him, planted the drugs, and then




                                             7
arrested him.” On this summary, it was clear at trial that Braziel sought to defend based

on police bias. The summary is consistent with the questioning.

       Braziel attempted several times to cross-examine the officers about potential bias

arising from his 2010 arrest after the state introduced the notion that Officer Lecy and

Braziel had a previous encounter resulting in some sort of formal adversarial proceeding.

Officer Lecy had first testified during his direct examination that Braziel “kept telling us

he was going to sue us again.” When Braziel then attempted to question Officer Lecy

about their previous encounter, the state objected. Braziel told the court that he intended

to ask the officer about his comment that he would “sue [police] again.” He insisted that

his “report [against the officer was] not frivolous if [the officer] was reprimanded for it, if

he was found by his own superiors in internal affairs to have committed misconduct and

violated Minneapolis police policies and procedures.”

       The district court answered, “I’ve already ruled on that issue. We are not talking

about internal affairs.” Later when Braziel attempted to explore with another testifying

officer “another arrest where you were involved with me,” the district court interrupted

sua sponte, telling him, “Mr. Braziel, no. Move on.”

       The district court correctly observed that it had already ruled on Braziel’s request

for the internal-affairs documents through discovery. But we do not believe that this

ruling prohibits Braziel from exploring directly with the officers whether Officer Lecy

may have developed a bias against him. The state makes a foundational argument,

maintaining that Braziel had not established a sufficient basis for questioning about the

complaint and alleged investigation. The argument is not persuasive. Braziel had already


                                              8
represented his personal knowledge about the administrative complaint and the basis for

it. Officer Lecy testified that Braziel had “sued” police before, and the police reports

referred to Braziel’s administrative complaint. Braziel presented a good-faith basis to

inquire into whether Officer Lecy had been the target of a complaint filed by Braziel and

to explore his potential resulting bias against Braziel. The proper inquiry would not need

to venture astray into whether Braziel’s complaint was valid; the limited issue was

whether some reason existed for the officer to have developed a grudge against him.

       On this background, we believe the district court should not have so quickly

curtailed Braziel’s questioning. But we will not find error if the jury had “sufficient other

information to make a discriminating appraisal of the witness’s bias or motive to

fabricate.” Lanz-Terry, 535 N.W.2d at 641 (quotation omitted). Officer Lecy had already

testified that Braziel had brought some sort of formal charges before the arrest occurred

in this case. This mitigates any unfairness resulting from the district court’s ruling.

       And more important to our decision here, even if Officer Lecy had some bias

against Braziel, the conviction rests substantially on evidence that does not depend on

Officer Lecy’s credibility. We will not reverse if the error is harmless. Minn. R. Crim. P.

31.01. The only aspect of Officer Lecy’s account that was not witnessed by another

officer was Braziel’s throwing the tissue on the ground. All of the direct evidence of

Braziel’s guilt, corroborated by the circumstantial evidence that Braziel was the one who

threw the tissue, renders any error about the limits to the questioning harmless. Officer

Karshbaum testified that she saw Braziel holding the tissue moments before the arrest.

Officer Anderson testified that he saw Braziel turn and move his hand toward his waist


                                              9
and that he saw Officer Lecy pick up the tissue. None of Braziel’s proffered bias

evidence about Officer Lecy would have impeached this testimony. The district court’s

evidentiary error was harmless.

       Braziel also sought to present evidence that Lecy had recently acted on his alleged

bias against him. He claimed that officers had lied about him and treated him harshly. A

district court is not required to admit all evidence that might indicate bias. “[N]ot

everything tends to show bias, and courts may exclude evidence that is only marginally

useful for this purpose.” Lanz-Terry, 535 N.W.2d at 640. If the bias evidence is

attenuated and unconvincing, it need not be admitted. Id. Braziel’s claim of bias proved

by supposed rough treatment during his arrest falls into these categories.

                                            III

       Braziel argues that the district court should not have admitted the officer’s

testimony revealing the substance of the confidential informant’s tip. We review

evidential rulings for abuse of discretion. Amos, 658 N.W.2d at 203. Officer Lecy

testified to some details about the informant’s tip, including that “somebody was out

selling drugs” in the area and that this person was a “black male wearing a black Polo

shirt and . . . white tennis shoes.” Braziel did not object to this hearsay testimony until

after direct examination had ended, but Braziel maintains that the district court could

have instructed the jury not to consider the testimony.

       Hearsay is generally inadmissible. Minn. R. Evid. 802. The hearsay testimony here

went beyond evidence that Officer Lecy was motivated by a tip. It gave jurors the

impression that Braziel had been on the street selling drugs for some time before the


                                            10
officers arrived. But the risk that this evidence significantly affected the jury’s decision is

slight. The evidence of Braziel’s guilt is too substantial to conclude otherwise. Three

testifying officers provided ample evidence on every element of the charges. The officers

watched Braziel conduct multiple apparent drug transactions. Braziel tried to avoid the

officers as soon as he saw them, and the officers found crack cocaine that he had just

discarded on the ground along with a large sum of cash mostly in drug-sale

denominations on his person. The error was harmless.

                                              IV

       The state agrees with Braziel that both of his convictions arose from the same

behavioral incident and that he should have been convicted and sentenced for only the

third-degree sale offense. That is, the fifth-degree possession crime is a lesser-included

offense. See Minn. Stat. §§ 609.04, subd. 1, .035, subd. 1 (2012). We reach the same

conclusion and reverse Braziel’s conviction of fifth-degree possession of a controlled

substance. We remand to the district court to vacate the conviction and amend the

sentence.

       Affirmed in part, reversed in part and remanded.




                                              11
