State of Minnesota v. Johnathan Bernard Edwards

This opinion will be unpublished and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
A15-0836

State of Minnesota,
Respondent,

vs.

Johnathan Bernard Edwards,
Appellant.

Filed May 23, 2016
Affirmed
Larkin, Judge

Ramsey County District Court
File No. 62-CR-13-9489

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

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Larkin, Judge; and

Rodenberg, Judge.
 UNPUBLISHED OPINION

LARKIN, Judge

Appellant challenges his conviction of first-degree sex trafficking, arguing that the

district court erred by admitting hearsay statements, the statement of a nontestifying

codefendant, and evidence of other bad acts. Appellant raises several additional issues in

a pro se brief. We affirm.

FACTS

Respondent State of Minnesota charged appellant Johnathan Bernard Edwards and

Kauser Mohamoud Yusuf with first-degree sex trafficking. The complaint alleged that

Backpage.com received an e-mail from a possible juvenile sex-trafficking victim. The e-

mail referred to one of several ads that had been on the site and stated: “These pictures

was taking of me and posted on backpage the people that posted them have been making

me sleep with the guys that called I’m only 15 years old . . . Please help . . . .”

The police traced the origin of the ad to an Edmund Avenue address in Saint Paul.

Officers went to the Edmund Avenue address and identified Edwards and Yusuf.

Officers observed a black sheet separating a bedroom at the back of the house. The

bedroom contained a blow-up mattress on the floor and several pairs of female thong

underwear. Yusuf provided her phone number. The police learned that the phone

number in the Backpage ad rolled over to the number Yusuf provided.

The officers located the 15-year-old victim, T.S. T.S. told the police that Edwards

and Yusuf invited men to the Edmund Avenue address to have sex with her. The men

paid Edwards or Yusuf for the sexual activity, but Edwards and Yusuf did not give T.S.

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any of the money. T.S. estimated that she had sex with 7 to 20 men a day at the Edmund

Avenue address.

Edwards’s and Yusuf’s cases were joined for trial. At trial, several of the state’s

witnesses testified regarding hearsay statements. For example, Leah Mickschl, a

registered nurse and case manager at Midwest Children’s Resource Center, testified that

after a child has been referred to the center, she interviews and physically examines the

child. The purpose of the interview is to “get a good history from the child about what

has been happening, any medical or symptomatic concerns that they have, [and to] get a

detailed history about what it is that happened, if anything” in order to make

recommendations for treatment, including counseling, prescription medication, or other

medical care. Mickschl testified that she interviewed T.S. and recorded their

conversation. The state offered the recording as an exhibit, and Edwards objected on

hearsay grounds. The district court overruled Edwards’s objection, reasoning that the

recording contained “information that was obtained for purposes of medical treatment.”

The state played the recording for the jury, which contained T.S.’s description of

the alleged sex trafficking. T.S. told Mickschl that Edwards took pictures of her with her

clothes off. T.S. said that Edwards and Yusuf took her to two hotels and that she stayed

at one of them for approximately one week and at the other for approximately three days.

T.S. said that after the stay at the hotels, they went to Yusuf’s house, where Edwards and

Yusuf had her wear “pretty clothes” and arranged for men to have sex with her for

money.

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 T.S.’s mother, T.H., testified that T.S. has a learning disability and a third-grade-

level IQ. T.H. testified that she first learned that T.S. was engaged in prostitution when

somebody called her on the phone and told her that T.S. “was prostituting.” T.H. also

testified that T.S. told her that men or women would pay for what they wanted to do to

her or for what they wanted her to do to them. T.S. told T.H. that Edwards and Yusuf

“prepare[d] her” for the sexual encounters. T.H. testified that Yusuf did T.S.’s hair,

picked out an outfit, and got her ready while Edwards sat at the computer. T.S. told T.H.

she had been with more than 200 men. Edwards did not object to this testimony.

T.S.’s cousin, L.W., testified that T.S. told her that Edwards and Yusuf were with

T.S. at a hotel when an explicit photograph was taken of T.S. and another girl. L.W. also

testified that T.S. told her that Edwards and Yusuf had a video recording of T.S. having

sex after they had given her something that made her “not alert.” L.W. testified that T.S.

told her that Edwards would arrange for her to meet men, accompany her to the meetings,

and “stick them up.” Edwards did not object to this testimony.

T.S.’s stepmother, I.F., testified that T.S. told her that she was involved in

prostitution with Edwards and Yusuf, who were helping her make money. I.F. testified

that T.S. said that she was having sex with several men each night, Edwards and another

man would keep the money, and after “there was no more people that needed services,”

Edwards would give her a cut. Edwards did not object to this testimony.

Saint Paul Police Officer Susan Elizabeth Hartnett testified that she interviewed

T.S. on two occasions. Officer Hartnett testified that T.S. told her that Edwards and

Yusuf took her to two motels and that Edwards took photographs of her that were used in

4
the Backpage ads. T.S. told Officer Hartnett that men called Edwards’s phone in

response to the ad, that she had sex with 7 to 20 men a day, and that Edwards would be

on a couch behind a curtain during the sexual activity. Officer Hartnett further testified

that T.S. said that she did not get to keep any of the money generated from her

prostitution. Saint Paul Police Sergeant Sean Lohse-Johnson testified that he spoke with

T.S., and T.S. told him that she had been “pimped out” by Edwards and Yusuf. Edwards

did not object to this testimony.

The state also introduced, without objection, a notebook that T.S. had written in.

T.S. testified that she wrote some of the entries in the notebook, but she denied writing

others. The notebook also contained the following entry:

. . . its funny how I made over $500 sense I been back and
mfs aint gave me a dime . . . LMFAO damn that’s f---ed up so
Ima start taking my own mf call and charging wtf I want
cause mfs aint giving me a dime so from here own out ima
start giving mfs what I want they ass to mf have . . . .

The record is not clear as to whether T.S. acknowledged writing this entry or denied it.

Officer Hartnett also testified about statements Yusuf made when Officer Hartnett

interviewed her. Yusuf generally denied that she was involved in trafficking T.S. Yusuf

said that she hardly knew T.S., that she believed T.S. was 19 years old, and that T.S.

rented a room in her house for one month but only stayed one week. Yusuf denied

staying at any hotels during the relevant time period. Yusuf initially denied any

knowledge of Backpage.com, but later said she used T.S.’s computer and saw that T.S.

had put ads on Backpage. Yusuf denied posting any ads and said she had no idea how

her phone number came to be listed in the ads. Officer Hartnett testified that after the

5
formal interview, Yusuf told her that she had not been completely honest and had not

provided all the relevant information. After learning about the charge that she could be

facing, Yusuf asked for “a deal” if she “came clean.” Yusuf said she had left out a

“whole lot of information” and would provide a full confession if she could get a deal.

Edwards did not object to this testimony.

When T.S. testified at trial, she acknowledged that she knew Edwards and Yusuf,

but denied that either one of them had anything to do with the Backpage ads. T.S.

testified that she stole Yusuf’s computer and phone and that she posted the ads herself.

T.S. acknowledged that she had sex with men for money during the time that she was

staying with Edwards and Yusuf and that she gave them money to help them purchase

household items. But T.S. also testified that Edwards and Yusuf did not know that the

money came from prostitution. T.S. testified that she did not tell L.W. or I.F. that

Edwards and Yusuf facilitated her prostitution. T.S. also testified that she frequently lies.

The jury found Edwards guilty, and the district court sentenced him to serve 240

months in prison. This appeal follows.

DECISION

I.

Edwards contends that “the admission of voluminous amounts of inadmissible

hearsay evidence deprived [him] of a fair trial.” Hearsay is “a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” Minn. R. Evid. 801(c). Hearsay is admissible only

when specifically allowed under the rules of evidence “or by other rules prescribed by the

6
Supreme Court or by the Legislature.” Minn. R. Evid. 802. There are numerous

exceptions to the hearsay rule. See Minn. R. Evid. 803 (listing 22 exceptions to hearsay

exclusion), 807 (stating residual exception to hearsay exclusion).

Objected-to Hearsay Statements

Edwards contends that the district court erroneously ruled that T.S.’s statements to

Mickschl were admissible as having been “obtained for purposes of medical treatment.”

Because Edwards objected to admission of this evidence, this court reviews for abuse of

discretion. “Evidentiary rulings rest within the sound discretion of the [district] court and

will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the

burden of establishing that the [district] court abused its discretion and that appellant was

thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation

omitted).

Minn. R. Evid. 803(4) provides that the following statements are not excluded by

the hearsay rule, even if the declarant is available as a witness: “Statements made for

purposes of medical diagnosis or treatment and describing medical history, or past or

present symptoms, pain, or sensations, or the inception or general character of the cause

or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”

“The rationale behind the rule is the patient’s belief that accuracy is essential to effective

treatment.” State v. Robinson, 718 N.W.2d 400, 404 (Minn. 2006) (quotation omitted).

In child-abuse cases, statements made for the purpose of medical diagnosis or

treatment “are admissible . . . if the evidence suggests that the child knew she was

speaking to medical personnel and that it was important she tell the truth.” State v.

7
Salazar, 504 N.W.2d 774, 777 (Minn. 1993). A child sexual-abuse victim’s statement

identifying the abuser can be admissible under rule 803(4) “on the theory that the identity

of the abuser is pertinent to treatment.” State v. Larson, 453 N.W.2d 42, 47 (Minn. 1990)

judgment vacated on other grounds, 498 U.S. 801, 111 S. Ct. 29 (1990); see also United

States v. DeNoyer, 811 F.2d 436, 438 (8th Cir. 1987) (concluding that a statement was

admissible under Fed. R. Evid. 803(4) and 803(24), reasoning that the identity of the

abuser was pertinent to treatment because “[t]he exact nature and extent of the

psychological problems which ensue from child abuse often depend on the identity of the

abuser” (quotation omitted)).

In Robinson, the supreme court clarified that there is not a categorical rule of

admissibility under the medical-diagnosis exception for out-of-court statements of child

sexual-abuse victims identifying their abusers. 718 N.W.2d at 405. The supreme court

explained that the relevant caselaw, including Salazar and Larson, “recognized the

importance of examining each statement individually and applying the facts on a case-by-

case basis.” Id. The supreme court therefore declined to adopt a categorical rule of

admissibility for statements identifying a perpetrator of domestic abuse under the

medical-diagnosis exception. Id. at 405-07. Instead, the supreme court examined the

record and found that the state did not present evidence—such as the assailant’s pattern

of coercion or violence or psychological abuse, the victim’s seeking treatment for

emotional or psychological harm, the nurses’ concern for the victim’s emotional or

psychological well-being, or expert medical testimony—suggesting that the identity of

the assailant was relevant to the diagnosis or treatment of the victim’s injury. Id. at 407.

8
The supreme court held that “where, as here, there is an insufficient evidentiary

foundation to establish that the identity of the person who caused an injury was

reasonably pertinent to the medical diagnosis or treatment of that injury, the statement of

identity is not admissible under Rule 803(4).”1 Id.

Edwards argues that the “state offered no evidence for the proposition that T.S.’s

naming of [him] and Yusuf was relevant to any . . . diagnosis or treatment.” But

Mickschl testified that the purpose of her interviews of children referred to the clinic is to

“get a good history from the child about what has been happening” in order to make

recommendations for treatment, including “counseling.” See DeNoyer, 811 F.2d at 438

(reasoning that the identity of the abuser is pertinent to treatment because “[t]he exact

nature and extent of the psychological problems which ensue from child abuse often

depend on the identity of the abuser” (quotation omitted)).

Edwards further argues that his and Yusuf’s identities were not pertinent to T.S.’s

treatment because “T.S. did not accuse a particular person of sexually abusing her.” We

disagree. T.S. stayed with Edwards and Yusuf, and they facilitated her sexual abuse by

multiple men on a daily basis. The identity of the individuals who arranged T.S.’s sexual

exploitation is just as pertinent to T.S.’s treatment for any ensuing psychological

problems as the identity of the random men who sexually abused her. In sum, there was

a sufficient evidentiary foundation to establish that the identity of the people who

1
The supreme court noted that it did not “foreclose the possibility that [it] might in the
future adopt a properly limited categorical rule of admissibility under the medical
exception to hearsay for statements of identification by victims of domestic violence.”
Robinson, 718 N.W.2d at 407.

9
prostituted T.S. was reasonably pertinent to T.S.’s related medical diagnosis and

treatment.

Edwards also argues that the state did not establish that T.S. had a motive to tell

the truth to obtain an accurate medical diagnosis. The record refutes that contention.

Mickschl identified herself as a nurse and explained to T.S. that “the most important

thing is that we’re only gonna talk about things that are true and real and things that

really happened. And that’s important ‘cause it kind of helps me decide how to do your

checkup in a little while. And what tests we should run or not run . . . .” T.S. responded:

“Okay.” Thus, T.S. knew she was talking to a medical professional and that telling the

truth was important to her treatment. See Salazar, 504 N.W.2d at 777 (stating that

statements made for the purpose of medical diagnosis or treatment “are admissible . . . if

the evidence suggests that the child knew she was speaking to medical personnel and that

it was important she tell the truth”). For that reason, and because the identity of the

individuals who prostituted T.S. was reasonably pertinent to her related medical

diagnosis and treatment, the district court did not abuse its discretion by admitting T.S.’s

statements to Mickschl under the medical-diagnosis exception to the hearsay rule.

Unobjected-to Hearsay Statements

Edwards contends that T.S.’s statements to T.H., L.W., I.F., Officer Hartnett, and

Sergeant Lohse-Johnson, as well as the statement in the notebook, were inadmissible

hearsay statements. Edwards did not object to the admission of these statements.

Generally, an issue cannot be raised for the first time on appeal. State v. Anderson, 733

N.W.2d 128, 134 (Minn. 2007). Moreover, “[a]n objection must be specific as to the

10
grounds for challenge.” State v. Rodriguez, 505 N.W.2d 373, 376 (Minn. App. 1993),

review denied (Minn. Oct. 19, 1993). Nevertheless, an appellate court can review an

issue not raised in the district court if there was plain error affecting substantial rights.

State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). “[B]efore an appellate court

reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error

must affect substantial rights.” Id. “An error is plain if it was clear or obvious. Usually

this is shown if the error contravenes case law, a rule, or a standard of conduct.” State v.

Ramey, 721 N.W.2d 294, 302 (Minn. 2006) (citations and quotations omitted). If these

prongs are met, then the appellate court assesses whether it should address the error to

ensure fairness and the integrity of the judicial proceedings. Griller, 583 N.W.2d at 740.

Admission of hearsay statements can be plain error if “the statements, by the

application of well-settled law, constitute inadmissible hearsay.” Bernhardt v. State, 684

N.W.2d 465, 476 (Minn. 2004). But the supreme court has cautioned:

The number and variety of exceptions to the hearsay
exclusion make objections to such testimony particularly
important to the creation of a record of the trial court’s
decision-making process in either admitting or excluding a
given statement. The complexity and subtlety of the
operation of the hearsay rule and its exceptions make it
particularly important that a full discussion of admissibility
be conducted at trial.

State v. Manthey, 711 N.W.2d 498, 504 (Minn. 2006).

The state contends that “the statements were not so obviously inadmissible that the

[district] court committed plain error in not interfering with defense counsel’s failure to

11
object.” The state argues that the statements could have been admissible under the

residual exception to the hearsay rule, which provides:

A statement not specifically covered by rule 803 or 804 but
having equivalent circumstantial guarantees of
trustworthiness, is not excluded by the hearsay rule, if the
court determines that (A) the statement is offered as evidence
of a material fact; (B) the statement is more probative on the
point for which it is offered than any other evidence which
the proponent can procure through reasonable efforts; and
(C) the general purposes of these rules and the interests of
justice will best be served by admission of the statement into
evidence.

Minn. R. Evid. 807.

Courts consider the totality of the circumstances when determining whether a

statement has “sufficient guarantees of trustworthiness.” State v. Martinez, 725 N.W.2d

733, 737-38 (Minn. 2007). For example, in State v. Ortlepp, the supreme court relied on

the following factors in concluding that a statement had circumstantial guarantees of

trustworthiness: (1) the witness was available for cross-examination, (2) the witness

admitted making the statement, (3) the statement was against the witness’s penal interest,

and (4) the statement was consistent with other evidence introduced by the state. 363

N.W.2d 39, 44 (Minn. 1985). “[T]his court has found that the third Ortlepp factor may

be satisfied even when a declarant’s statement is not against the declarant’s penal interest

if the declarant is hostile to the state and supportive of the defendant.” State v. Plantin,

682 N.W.2d 653, 659 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004).

In this case, T.S. testified and was cross-examined at trial. T.S. denied her prior

allegations and was generally supportive of Edwards and Yusuf. But T.S.’s out-of-court

12
statements were consistent with other evidence introduced by the state, including the

admissible statement T.S. provided to Mickschl. In sum, if Edwards had objected and the

admissibility of the statements had been argued, it is not clear or obvious that the

statements would have been inadmissible under the residual exception to the hearsay rule.

Edwards is therefore not entitled to relief under the plain-error standard of review.

II.

Edwards contends that “the district court violated [his] right to be confronted with

the witnesses against him when it admitted evidence of his non-testifying codefendant’s

statement to [the] police.” Because Edwards did not object, this court reviews this issue

for plain error. See State v. Usee, 800 N.W.2d 192, 196 (Minn. App. 2011) (reviewing

admission of unobjected-to codefendant’s statement inculpating defendant for plain

error), review denied (Minn. Aug. 24, 2011).

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

with the witnesses against him . . . .” U.S. Const. amend. VI. In Bruton v. United States,

391 U.S. 123, 135-37, 88 S. Ct. 1620, 1627-28 (1968), the Supreme Court established the

rule that when “two defendants are tried jointly, the pretrial confession of one, which

implicates the other defendant, cannot be admitted against the other defendant unless the

confessing codefendant testifies at trial. Admitting such a confession when the

codefendant does not testify is a violation of the other defendant’s Confrontation Clause

rights.” State v. Blanche, 696 N.W.2d 351, 367 (Minn. 2005) (citation omitted).

“[W]hile Bruton’s protections apply more broadly than just formal confessions, they

13
nevertheless require that the statement be a confession that is prejudicial to the

defendant.” Id. at 369.

Edwards argues that Yusuf’s “claim to have lied to investigators about her non-

involvement in T.S.’s prostitution and her offer to confess if given a deal was prejudicial

to her and to [Edwards].” But Yusuf did not confess to the police, and she did not

implicate Edwards. In fact, she denied any involvement in T.S.’s prostitution. It is not

clear or obvious that Yusuf’s offer to confess in exchange for a deal was inadmissible

under Bruton. Thus, Edwards is not entitled to relief under the plain-error standard of

review. See Griller, 583 N.W.2d at 740 (stating that “before an appellate court reviews

an unobjected-to error, there must be . . . error . . . that is plain”); see also Ramey, 721

N.W.2d at 302 (“An error is plain if it was clear or obvious.” (quotation omitted)).

III.

Edwards contends that the district court erred by admitting evidence regarding his

alleged other bad acts. Specifically, L.W. testified that T.S. told her that Edwards “would

have her meet up with gentlemen and he’d stick them up . . . .” Edwards did not object.

The prosecutor asked another witness, B.M., if she was “aware of any prostitution

activity or efforts by [Edwards] to engage either yourself or [T.S.] in prostitution?” B.M.

responded: “With [T.S.], I’m not aware of that. And with myself, it was years ago.

Like, I would have known better myself. But I declined both. I declined the offers.” The

prosecutor followed up: “So he tried to talk you into prostituting?” Edwards objected,

then withdrew his objection. Next, the parties had an off-the-record discussion.

Following the discussion, the prosecutor stated: “I’m going to withdraw that question.”

14
Because Edwards did not object to L.W.’s testimony and withdrew his objection to

B.M.’s testimony, we review for plain error. See Griller, 583 N.W.2d at 740.

Evidence of other bad acts is not admissible to prove that a defendant acted in

conformity with his character. Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488,

490, 139 N.W.2d 167, 169 (1965). But the evidence may be admissible for other

purposes, such as to prove motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident. Minn. R. Evid. 404(b). The supreme court

has developed five requirements for admission of other-acts evidence:

(1) the state must give notice of its intent to admit the
evidence; (2) the state must clearly indicate what the evidence
will be offered to prove; (3) there must be clear and
convincing evidence that the defendant participated in the
prior act; (4) the evidence must be relevant and material to the
state’s case; and (5) the probative value of the evidence must
not be outweighed by its potential prejudice to the defendant.

State v. Ness, 707 N.W.2d 676, 685-86 (Minn. 2006). The state did not comply with

these requirements, and the district court did not address them. We therefore conclude

that admission of testimony regarding the other bad acts is error that is plain. See Ramey,

721 N.W.2d at 302 (“An error is plain if it was clear or obvious.” (quotation omitted)).

“The third prong [of the plain-error test], requiring that the error affect substantial

rights, is satisfied if the error was prejudicial and affected the outcome of the case.”

Griller, 583 N.W.2d at 741. “To determine whether the error had a significant effect on

the jury’s verdict, we review the strength of the State’s case, the pervasiveness of the

error, and whether the defendant had an opportunity to respond to the testimony.” State

15
v. Sontoya, 788 N.W.2d 868, 873 (Minn. 2010). The defendant bears the burden of

persuasion on the third prong, and it is a “heavy burden.” Griller, 583 N.W.2d at 741.

We are not persuaded that admission of L.W.’s isolated statement that Edwards

would “stick them up” and B.M.’s brief testimony that she declined an offer from

Edwards “years ago” to prostitute herself affected the outcome of the case. Even though

T.S. denied her earlier accusations at trial, her multiple, consistent out-of-court

statements regarding Edwards’s involvement in her sex trafficking provided strong

evidence of Edwards’s guilt. Edwards therefore has not met his heavy burden of showing

that the error affected his substantial rights, and he is not entitled to relief.

IV.

Edwards contends that this court should reverse his conviction because the

cumulative effect of the errors denied him a fair trial. He argues that “[t]he voluminous

amount of hearsay, combined with the evidence of [his] alleged other bad acts and the

violation of his constitutional right to be confronted with the witnesses against him,

deprived [him] of a fair trial.”

“[An a]ppellant is entitled to a new trial if the errors, when taken cumulatively,

had the effect of denying [the] appellant a fair trial.” In re Welfare of D.D.R., 713

N.W.2d 891, 903 (Minn. App. 2006). But relief under the cumulative-error doctrine

requires multiple errors. See, e.g., State v. Mayhorn, 720 N.W.2d 776, 779 (Minn. 2006)

(holding that the cumulative effect of 12 errors deprived the defendant of a fair trial);

State v. Peterson, 530 N.W.2d 843, 848 (Minn. App. 1995) (concluding that the

cumulative effect of three errors required reversal). Because Edwards has established

16
only one error—the admission of isolated references to prior bad acts—and those

references did not impact the outcome of the case, we do not discern a basis for relief

under our cumulative-error jurisprudence. Cf. Peterson, 530 N.W.2d at 846, 848

(concluding that the cumulative effect of the following errors required reversal: district

court instructed jury to continue deliberating until it reached a unanimous verdict;

appellant’s confrontation rights were violated; and prosecutor engaged in misconduct

during closing argument, which turned Spreigl evidence into improper substantive

evidence).

V.

Edwards raises multiple issues in a pro se supplemental brief. First, Edwards

appears to contend that he never “knowingly waived” his right to challenge probable

cause or the searches leading to the discovery of evidence used against him at trial. The

legal basis for Edwards’s assignment of error is not clear from his brief. “Assignment of

error based on mere assertion and not supported by argument or authority is waived

unless prejudicial error is obvious on mere inspection.” State v. Ouellette, 740 N.W.2d

355, 361 (Minn. App. 2007) (quotation omitted), review denied (Minn. Dec. 19, 2007).

Because we do not discern obvious prejudicial error, we deem this assignment of error

waived.

Edwards contends that the district court erred “when it denied [his] constitutional

right to have severance and ordered joinder with his codefendant Kauser Yusuf when

there were ‘antagonistic’ defenses.” But Edwards did not oppose joinder prior to trial

and does not suggest that he moved for severance. We therefore review for plain error.

17
See Griller, 583 N.W.2d at 740 (stating that an appellate court can review an issue not

raised in the district court if there was plain error affecting substantial rights).

Under Minn. R. Crim. P. 17.03, it is within the district court’s discretion to order

joinder when two or more defendants are charged with the same offense, but the court

must consider: “(1) the nature of the offense charged; (2) the impact on the victim; (3) the

potential prejudice to the defendant; and (4) the interests of justice.” Minn. R. Crim. P.

17.03, subd. 2. Rule 17.03 also provides that “[t]he court must sever defendants during

trial, with the defendant’s consent or on a finding of manifest necessity, if the court

determines severance is necessary to fairly determine the guilt or innocence of one or

more of the defendants.” Minn. R. Crim. P. 17.03, subd. 3(3).

Edwards argues that all of the evidence presented by the state implicated Yusuf

and that “[t]here wasn’t a shred of evidence the state presented supporting [its] claim that

[he] was sex trafficking.” The record does not support Edwards’s contention. The state

presented multiple, consistent out-of-court statements by T.S. regarding Edwards’s

involvement in her sex trafficking. Moreover, Edwards does not cite rule 17.03, address

the rule’s factors, or otherwise explain how the district court clearly, obviously, and

impermissibly deviated from the rule. Edwards has therefore failed to demonstrate plain

error. See State v. Myhre, ___ N.W.2d ___, ___, No. A14-0670, slip op. at 9 (Minn.

Feb. 17, 2016) (stating that “[i]n order to meet the plain error standard, a criminal

defendant must show that (1) there was an error, (2) the error was plain”); Ramey, 721

N.W.2d at 302 (“An error is plain if it was clear or obvious.” (quotation omitted)).

18
 Edwards contends that the district court “[a]llowed an intoxicated juror to continue

with deliberations after he didn’t show up for deliberations.” The record does not support

this contention. After a juror did not appear for deliberations, two sheriff’s deputies went

to his house and brought him to court. The district court questioned one of the deputies,

who stated that the juror told him that “he had a headache last night after deliberations.

He went home and he drank some vodka and overslept, and when he woke up it was past

10:00 in the morning, and he panicked and did not know what to do.” The district court

questioned the juror about his absence. The juror confirmed that he overslept and

apologized to the court. The district court asked the juror several questions, such as

whether he could be fair to both parties if he continued deliberating, whether anyone had

tried to contact him about the case, whether anyone tried to scare him, and whether he

was comfortable continuing with deliberations. The juror indicated that he could be fair,

no one had tried to contact him or scare him, and that he was “fine” with continuing

deliberations. The record does not suggest that the juror was intoxicated or that the

district court or the parties believed that he may have been intoxicated. In fact,

Edwards’s attorney stated that Edwards had “no objection” to the juror continuing

deliberations. We discern no error in the district court’s decision to allow the juror to

deliberate.

Edwards contends that “the jury may have reached a different conclusion

regarding guilt or innocence had the state not committed prosecutorial misconduct in its

opening and closing statements by misrepresenting the facts of the case which

unequivocally had the potential to inflame the jurors, even though counsel failed to object

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to the statements made.” Edwards relies on several statements he claims the prosecutor

made, such as “T.S. had been tested at a 4th or 5th grade level-mentally challenged” and

“The state doesn’t have to prove what doesn’t exist.”

Edwards did not object to the state’s opening statement or closing argument and

therefore “must establish both that [the alleged] misconduct constitutes error and that the

error was plain.” State v. Wren, 738 N.W.2d 378, 393 (Minn. 2007). “The defendant

shows the error was plain if the error contravenes case law, a rule, or a standard of

conduct.” Id. (quotation omitted). “The prosecutor may argue all reasonable inferences

from evidence in the record.” State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993)

(quotation omitted). The statements Edwards identifies are either supported by the record

or are arguments based on reasonable inferences from the record. Edwards therefore has

not established error.

Edwards contends that he received ineffective assistance of trial counsel because

his counsel made an unauthorized implied admission of guilt, failed to properly

investigate the case, failed to challenge an illegal search and seizure, failed to challenge

probable cause, and failed to object to improper evidence at trial. To succeed on a claim

of ineffective assistance of counsel, a defendant must show that his counsel’s

representation fell below an objective standard of reasonableness and that, but for the

counsel’s unprofessional errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068

(1984).

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 “Generally, an ineffective assistance of counsel claim should be raised in a

postconviction petition for relief, rather than on direct appeal.” State v. Gustafson, 610

N.W.2d 314, 321 (Minn. 2000). The reason for this general preference is that a

“postconviction hearing provides the court with additional facts to explain the attorney’s

decisions, so as to properly consider whether a defense counsel’s performance was

deficient.” Id. (quotation omitted). Without those additional facts, “any conclusions

reached by [an appellate] court as to whether [a defendant’s] attorney’s assistance was

deficient would be pure speculation.” Id. But if the trial record is sufficiently developed

such that an ineffectiveness claim can be decided based on that record, an appellate court

may consider the claim on direct appeal. Voorhees v. State, 627 N.W.2d 642, 649 (Minn.

2001).

The trial record is not sufficiently developed to decide Edwards’s ineffective-

assistance-of-counsel claim on direct appeal. We hereby preserve Edwards’s right to

pursue his ineffective-assistance-of-counsel claim in a postconviction proceeding under

the requirements and standards prescribed by law. See State v. Jackson, 726 N.W.2d 454,

463 (Minn. 2007) (“Jackson’s claims about his counsel’s investigation and witness

contacts require consideration of facts not in the trial record. Accordingly, we deny those

claims without prejudice to Jackson’s right to raise them in a postconviction

proceeding.”).

Lastly, Edwards contends that the district court “imposed an unlawful sentence of

240 months which does not accurately represent the ‘criminal [history] points’ he had at

the time the court imposed this unlawful sentence.” The record does not support

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Edwards’s claim. Edwards argues that he should have received four criminal-history

points based on prior convictions. He did: the sentencing worksheet shows that he was

assigned four criminal-history points based on prior convictions.

Edwards also argues that he should not have received a custody-status point

because he was not on probation or parole. But the presentence-investigation report

shows that Edwards was placed on felony probation on May 24, 2012, for a period of ten

years. Although Edwards was discharged from probation on January 22, 2013, the

Minnesota Sentencing Guidelines state: “Early Discharge From Probation. Assign a

custody point if the offender is discharged from probation but commits an offense within

the initial period of probation pronounced by the court.” Minn. Sent. Guidelines 2.B.2(4)

(2012). The dates of offense for this case were from July 1, 2013, to November 24, 2013,

which was within the initial ten-year period of probation pronounced by the court for

Edwards’s earlier conviction. Thus, Edwards properly received a custody-status point.

Given Edwards’s five criminal-history points and his conviction under a statute with a

severity level of B, his 240-month sentence was within the presumptive range under the

Minnesota Sentencing Guidelines. See Minn. Sent. Guidelines 4.B, 5.B (2012).

In his pro se reply brief, Edwards raises two new issues regarding the district

court’s denial of his motion for judgment of acquittal and the district court’s jury

instructions. Issues raised “for the first time in [an] appellant’s reply brief [in a criminal

case],” having not been raised in respondent’s brief, are “not proper subject matter for

[the] appellant’s reply brief,” and they may be deemed waived. State v. Yang, 774

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N.W.2d 539, 558 (Minn. 2009). We therefore do not consider the issues raised for the

first time in Edwards’s pro se reply brief.

Affirmed.

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