State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1548

State of Minnesota,
Respondent,

vs.

Oji Konata Markham,
Appellant.

Filed September 11, 2017
Affirmed
Reyes, Judge

Dakota County District Court
File No. 19HA-CR-16-287

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

James C. Backstrom, Dakota County Attorney , Dain Olson, Assist ant County Attorney,
Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Reilly, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
On appeal from a judgment of conviction of first-degree burglary, appellant claims
that (1) the district court committed plain error by allowing th e state to amend the
2
complaint; (2) the prosecutor committed misconduct during closing argument when he
misstated the law; (3) the evid ence was insufficient to prove that appellant intended to
cause O.H. to fear bodily harm or death; and (4) the late di sclosure of the complainant’s
911 call necessitates a new tria l. Appellant also makes mu ltiple pro se arguments. We
affirm.
FACTS
In the early morning hours on January 22 , 2016, O.H. and her male friend, S.D.,
were drinking alcohol at O.H.’s residence. O.H. and appellant Oji Konata Markham had
been in a relationship but broke up earlier in the week. Appellant texted and called O.H.
on January 22 to tell her that he was coming to her residence. O.H. requested that appellant
not come over. When appellant arrived, he knocked on O.H.’s front door and bedroom
window. O.H. then heard her front door br eak open and appellant’s voice inside her
residence. When O.H. saw her broken door, sh e was afraid and shocked. O.H. ran from
the house and attempted to drive away, but her vehicle’s tire was flat. O.H. called 911.
A Mendota Heights police o fficer responded to O.H.’s 911 call at approximately
3:00 a.m. and met O.H. and S.D. at the residence. The officer smelled alcohol on O.H. and
S.D. but noted that they did not appear int oxicated. The officer observed that O.H. may
have been crying because her mascara was running and she had a tissue in her hand. The
officer did not notice any visible marks or ph ysical injuries on O.H., but S.D. had an
abrasion on his left cheek that he would not let the officer photograph.
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Outside, the officer observed damage to th e front door frame to O.H.’s residence.
The officer also noticed that the driver’s-side front tires of O.H.’s and S.D.’s vehicles were
flat. Inside, the officer observed a displaced coffee table and broken clay pots.
O.H. told the officer that appellant had been at her residence when the damage
occurred. O.H. stated that appellant pushed her to the ground and attempted to kick her,
and appellant’s actions caused her to get a bloody nose. While O.H. was speaking with the
officer, appellant sent O.H. threatening text messages and called her multiple times.
At approximately 11:30 a.m. on January 22, appellant returned to O.H.’s residence
with another individual and replaced the shattered door and flat tire. Later that night, O.H.
called the responding officer and requested that any charges against appellant be dropped.
Respondent State of Minnesota filed a complaint charging appellant with one count
of first-degree burglary with assault in viol ation of Minn. Stat. § 609.582, subd. 1(c)
(2014). On the third day of th e jury trial, after a discussion between the judge and the
parties’ attorneys, the district court allowed the state to amend the complaint to separate
the original charge into two counts: burglary with assault-fear against O.H. and burglary
with assault-harm against S.D. The distri ct court noted that appellant could not be
convicted of both counts pursuant to State v. Beane, 840 N.W.2d 848 (Minn. App. 2013),
review denied (Minn. Mar. 18, 2014).
The jury found appellant gu ilty only of first-degree bur glary with assault-fear
against O.H. Subsequently, appellant filed mu ltiple pro se motions. After a hearing, the
district court granted appella nt’s motion to discharge his public defender but denied
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appellant’s other motions, including his motion for a new trial. The district court sentenced
appellant to 111 months in prison. This appeal follows.
D E C I S I O N
I. The district court did not commit error by allowing the state to amend the
complaint.
Appellant argues that the district court committed plain error by allowing the state
to amend the original complaint to add an a dditional or different offense after the state
rested its case, which substantially prejudiced his rights. We disagree.
Because appellant did not object at trial, this court reviews the district court’s
decision to allow the state to amend the complaint for plain error. See State v. Griller, 583
N.W.2d 736, 740 (Minn. 1998). Under this standard, appellant must show (1) error; (2) that
is plain; and (3) that affects appellant’s substantial rights. Id. An error is plain if it is clear
or obvious in that it “contravenes caselaw . . . or a standard of conduct.” State v. Ramey,
721 N.W.2d 294, 302 (Minn. 2006). Plain error affects substantial rights if there is a
reasonable likelihood that it had a substan tial effect on the outcome of the case. Griller,
583 N.W.2d at 741. If appellant meets all th ree prongs, we determine whether to address
the error to ensure fairness and integrity of the judicial proceedings. Id. at 740.
Under Minn. R. Crim. P. 17.05, a district court “may permit an indictment or
complaint to be amended at any time before verdict or finding if no additional or different
offense is charged and if the defendant’s s ubstantial rights are not prejudiced.” The
supreme court has noted that the purpose of ru le 17.05 “appear[s] to be to protect against
confusing the jury, violating due process notions of timely notice, and adversely affecting
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the trial tactics of the defense.” State v. Alexander, 290 N.W.2d 745, 748 (Minn. 1980).
When an amendment “merely restate[s] with particularity the original complaint,” it does
not allege an additional or different offense. State v. Miller, 352 N.W.2d 524, 526 (Minn.
App. 1984).
Here, the original complaint alleges that appellant committed burglary with assault,
and the statement of probable cause establishes O.H. and S.D. as victims. The district court
allowed the state to amend the complaint so that it contained two counts of burglary with
assault. In the final ju ry instructions, the district court in structed the jury on assault-fear
with reference to O.H. and assault-harm with reference to S.D.
There was no error because th e amendment did not allege an additional or different
charge. The language of the original complaint refers to assault generally, which includes
“an act done with intent to ca use fear in another of immediat e bodily harm or death” and
“the intentional infliction of or attempt to inflict bodily harm upon another.” Minn. Stat.
609.02, subd. 10 (2014). Thus, the amendmen t simply “restated with particularity the
original complaint” with reference to the two possible victims. See Miller, 352 N.W.2d at
526.
Moreover, the amendment did not prejudi ce appellant’s substantial rights.
Appellant likens his situation to State v. Guerra, 562 N.W.2d 10 (Minn. App. 1997), and
State v. Caswell , 551 N.W.2d 252 (Minn. App. 1996). In Guerra, this court held that
Guerra’s substantial rights were prejudiced based on a lack of notice and opportunity to
prepare a defense, confusion of the jury, and negative effects to Guerra’s trial tactics. 562
N.W.2d at 14. Similarly, in Caswell, we held that allowing th e complaint to be amended
6
substantially prejudiced the defendant’s ri ghts because she was “u nprepared to defend
against [the additional] charges.” 551 N.W.2d at 255. Appellant’s reliance on Guerra and
Caswell is misguided. Here, the original comp laint and statement of probable cause put
appellant on notice that he should prepare to defend against assault. In addition, separating
the original charge into two counts mitigated potential jury confusion because it clarified
the original complaint, and ensured that the guilty verdict woul d reflect the jury’s
unanimous decision about who was the assau lt victim. Accordingly, appellant cannot
establish that the amendment to the complaint was plain error affecting substantial rights,
which ends our analysis. Montanaro v. State, 802 N.W.2d 726, 732 (Minn. 2011).
II. The state presented sufficien t evidence to prove that appellant intended to
cause O.H. to fear bodily harm or death.
Appellant argues that the evidence is in sufficient to prove the assault element of
burglary, specifically that he intended to cause O.H. to fear bodily harm or death because
the evidence supports a reasonable and rationa l alternative hypothesis that appellant was
expressing his frustration over his relationship with O.H. ending. We are not persuaded.
A person commits the offense of assault-fe ar through “an act done with intent to
cause fear in another of immediate bodily ha rm or death.” Minn. Stat. § 609.02, subd.
10(1) (2014). Assault-fear is a specific-intent crime. Id. at 309. Specific intent may be
proven by circumstantial evidence, State v. Johnson , 374 N.W.2d 285, 288 (Minn. App.
1985), “by drawing inferences from the defe ndant’s words and actions in light of the
totality of the circumstances.” State v. Smith , 825 N.W.2d 131, 136 (Minn. App. 2012)
(quotation omitted), review denied (Minn. Mar. 19, 2013). “[I]ntent may be inferred from
7
events occurring before and after the crime.” Davis v. State, 595 N.W.2d 520, 526 (Minn.
1999).
This court’s review of a challenge to the sufficiency of the evidence “is limited to a
painstaking analysis of the record to determ ine whether the evidence , when viewed in a
light most favorable to the conviction, was sufficient to permit the jurors to reach the
verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We apply a
two-step analysis for the circumstantial-evidence standard. State v. Al Naseer, 788 N.W.2d
469, 473-74 (Minn. 2010). First we identify the circumstances the state proved. Id. at 473.
Second we determine whether the circumstan ces proved are consistent with guilt and
inconsistent with any other rational hypothesis. Id. at 474. “We will not overturn a
conviction based on circumstantial evidence on the basis of mere conjecture.” Id. at 473
(quotation omitted).
Here, the circumstances proved at tria l are as follows: appellant and O.H.’s
relationship ended earlier in the week of January 22, 2016; O.H. did not want appellant to
come to her house on January 22; appellant came to O.H.’s house anyway, knocking on
the front door and O.H.’s bedroom window; appellant broke open the front door and forced
his way into the house when O.H. did not respond; O.H. heard the front door being broken
and appellant shouting inside her house; a co ffee table was displaced and clay pots were
broken; O.H. became afraid when she saw the broken door; O.H. ran outside to drive away,
but her vehicle’s tire was flat; O.H. called 911; O.H. was in shock after the incident. The
responding officer observed that O.H. had been crying; appellant sent O.H. threatening text
messages and called multiple times while O.H. spoke with the officer. Finally, in a
8
recorded call between appellant and O.H. on Ja nuary 26, appellant told O.H. to tell the
police that appellant was not at her house on January 22, O.H. was drinking heavily and
broke her own door or did not know how it happened, and O.H. called appellant to fix the
damage the next day.
The circumstances proved support a reasonabl e inference that appellant intended to
cause O.H. to fear bodily harm or death. Further, the circumstances proved do not support
a rational alternative hypothesis that appell ant’s actions were merely an expression of
frustration over the loss of his relationship with O.H. It is not a reasonable inference that
appellant needed to travel to O.H.’s hous e knowing she was there, break the door, and
damage other property to express his frustrati on. Accordingly, ther e is no other rational
hypothesis for appellant’s actions other than appellant’s intent to cause O.H. to fear bodily
harm or death.
III. The prosecutor did not commit misconduct during closing argument.
Appellant argues that the prosecutor committed misconduct at closing argument by
misstating the law which affected appellant’s substantial rights. We disagree.
We may review unobjected-to prosecuto rial misconduct under a modified plain-
error test. Ramey, 721 N.W.2d at 302. Under the modified-plain error test, appellant must
establish an error that is plain. Id. If appellant meets his burden, the state must establish
that the error did not affect a ppellant’s substantial rights. Id. When reviewing alleged
prosecutorial misconduct during closing argu ment, we look at the whole argument in
context. State v. McNeil, 658 N.W.2d 228, 234 (Minn. App. 2003).

9
The relevant portions of the prosecutor’s statement are as follows:
Looking first at [O.H.], the term assault in that case, fear of --
intent to cause fear means an act done with an intent to cause
fear of immediate bodily harm or death.
. . . .
[O.H.] was assaulted that night. The evidence supports she was
in fear of immediate bodily harm or death, and [appellant]
caused that. Looking at the totality of those circumstances in
the middle of the night, somebody outside the house screaming
and yelling, door gets broken open, property damage, you go
outside and your car tire is slashed. What other reason would
someone do all that but to cause fear? Those were not
accidental. The amount of for ce used to break open that door
was not an accident. Two tires on two different vehicles both
being flattened, not an accident. Those were intentional acts.
(Emphasis added.)
Assault-fear is a sp ecific-intent crime. State v. Fleck, 810 N.W.2d 303, 309 (Minn.
2012). Because there is no direct evidence of appellant’s specific intent, the prosecutor
used circumstantial evidence to support his argument. See State v. Johnson, 374 N.W.2d
285, 288 (Minn. App. 1985). When read in context, the prosecutor properly set out the
definition of assault-fear. Th e prosecutor’s statements abou t appellant’s intentional acts
are the prosecutor’s presentation to the jury of the acts appellant committed to support the
inference he had intent to cause O.H. to fe ar immediate bodily harm or death. The
prosecutor’s statements were not misconduct, and therefore there is no error.
IV. Appellant is not entitled to a new trial du e to the late disclosure of O.H.’s 911
call.
Appellant argues that he is entitled to a new trial because O.H.’s 911 call was not
made available to the parties until after the trial in violation of Minn. R. Crim. P. 9.01 and
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). We disagree.
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“Whether a discovery violation occurred is an issue of law which this court reviews
de novo.” State v. Palubicki, 700 N.W.2d 476, 489 (Minn. 2005). The state is required to
disclose statements that relate to the case, whether written, recorded , or oral. Minn. R.
Crim. P. 9.01, subd. 1(2). The prosecutor’s duty to disclose applies before and during trial.
Minn. R. Crim. P. 9.03, subd. 2(c). Howeve r, a discovery violation only results in a new
trial if there is a showing of prejudice to the defendant. Palubicki, 700 N.W.2d at 489.
Any “misconduct is harmless beyond a reasonable doubt if the verdict rendered was surely
unattributable to the error.” State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).
To establish a Brady violation, appellant must show that the evidence was
(1) favorable to appellant “because it would ha ve been either exculpatory or impeaching;
(2) . . . suppressed by the prosecution, intenti onally or otherwise; and (3) . . . material.”
Walen v. State, 777 N.W.2d 213, 216 (Minn. 2010). Th e state concedes that the first two
prongs of the Brady test are satisfied; thus, the only issue is whether the 911 transcript was
material. Like under the discovery-violation an alysis, evidence is material if the absence
of the evidence caused prejudice to appellant. Id.
Here, the transcript of the 911 call confir ms that O.H. called 911 on January 22,
2016. O.H. stated that her “ex-boyfriend” broke the door to her car and damaged her tires.
O.H. further reported that “he” pushed her to the ground and her mouth was bleeding at
one point. The call disconnected before O.H. provided the name of the alleged assailant.
At trial, O.H. testified that her recollection of the events on January 22 were better
that day than now. O.H. could not remember telling the police that appellant punched her
in the face, “beat on her,” or gave her a bloody nose. O.H. further testified that she did not
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see how her door becam e broken or how her tire became flat. The responding officer
testified that O.H. reported th at appellant pushed her to th e ground and attempted to kick
her. O.H. told the officer th at she had a bloody nose, but th e officer did not observe any
blood on O.H. The officer also testified that he observed a flat tire on O.H.’s vehicle.
Although the 911 call has impeachment va lue, O.H.’s credibility was already
attacked at trial through the officer’s testimony. A timely disclosure of the 911 call would
not have resulted in a different verdict. Accordingly, appellant was not prejudiced by the
late disclosure of the 911 call, and he is not entitled to a new trial under Minn. R. Crim. P.
9.01 or Brady.
V. Appellant’s pro se arguments lack merit.
We construe appellant’s pro se supplement al brief to make six arguments. Each
argument is addressed below.
A. The district court did not abuse its discretion by admitting the January
26 recorded phone call between appellant and O.H.
Appellant makes numerous arguments asser ting that admission of the recorded call
between O.H. and himself was improper. “Evi dentiary rulings rest within the sound
discretion of the [district] court and will not be reversed absent a clear abuse of discretion.”
State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).
First, appellant argues that the recorded call was admitted into evidence without the
proper foundation or authentication. The evidentiary requirement of authentication is met
if there is “evidence sufficien t to support a finding that the matter in question is what its
proponent claims.” Minn. R. Evid. 901(a). Here, the state laid the foundation for the
12
recorded call outside the presence of the jury to prevent the jury from hearing that the call
occurred while appellant was in custody. An officer for the electronic crimes task force
testified to the accuracy of the recorded call. With the jury present, the officer testified that
he identified the male voice in the recording as appellant and that the phone number called
belonged to O.H. Accordingly, the state la id a sufficient foundati on, authenticated the
recorded call, and identified the individuals in the recording.
Next, appellant asserts that the recorded call was inadmissible hearsay. “‘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(b). A
statement is not hearsay if it “is offered ag ainst a party and is . . . the party’s own
statement.” Minn. R. Evid. 801(d)(2). Because the record ed call was offered against
appellant and is his own statement, it is not hearsay.
Appellant further asserts that the record ed call violates his constitutional right to
confrontation. Because the recorded call is not hearsay, the confrontation issue does not
arise. State v. Tovar, 605 N.W.2d 717, 725 (Minn. 2000).
Finally, appellant argues that the recorded call revealed that he had a public defender
and that the error in admitting the call was not harmless. First, in the recorded call appellant
refers to his “lawyer” not to a public defe nder. Second, because there was no error in
admitting the recorded call, we decline to address appellant’s harmless-error claim. Based
on the foregoing, the district court did not a buse its discretion in admitting the recorded
call.
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B. The district court did not abuse its di scretion in instructing the jury on
first-degree burglary and assault-fear.
Appellant first argues that the district c ourt erred by omitting “intent” from the jury
instructions on burglary. Specifically, appellant asserts that the district court should have
included “with intent to commit a crime” in the instructions. Appellant’s argument is based
on an improper reading of the burglary statute.
We review a district court’s jury inst ructions for an abuse of discretion. State v.
Koppi, 798 N.W.2d 358, 361 (Minn. 2011). “W hoever enters a building without consent
and with intent to commit a crime, or enters a building with out consent and commits a
crime while in the building , either directly or as an ac complice, commits burglary in the
first degree.” Minn. Stat. § 609.582, subd. 1 (2014) (emphasis added). The district court
provided the jury wi th the following instruction for burglary: “Under Minnesota law
whoever enters a building without the consent of the person in lawful possession and
commits a crime while in the building, and the person assaults another within the building
or on the building’s appurtenant property, is guilty of a crime.” (Emphasis added.)
Accordingly, the district court did not improperly omit the element of intent from the jury
instructions because it instruct ed the jury in accordance w ith the second clause of the
burglary statute.
Appellant also argues that the district court improperly included “on the building’s
appurtenant property” in the definition of burglary. This argument lacks merit. The phrase
“on the building’s appurt enant property” is incl uded in the burglary statute. Minn. Stat.
14
§ 609.582, subd. 1(c). Thus, the district cour t did not abuse its discretion in formulating
its jury instructions.
C. The prosecutor did not commit misconduct.
Appellant argues that the prosecutor committed misconduct by eliciting testimony
indicating that appellant was in custody. Appe llant points to instan ces at trial when the
prosecutor questioned the officer from the electr onic crimes task force as support for his
argument. A review of the record shows that at no point did the officer’s responses to the
prosecutor indicate or imply that appellant was in custody. Appellant’s claim fails.
Appellant further asserts that the pros ecutor committed misconduct by allowing the
responding officer and the electronic-crimes-task-force officer to refresh their recollection
with written reports during trial. Appellant’s claim is misguided. Minnesota Rule of
Evidence 612 allows a testifying witness to use a writing to refresh his recollection.
Nothing in the record indicates that the prosecutor committed misconduct in allowing the
officers to do so.
D. The state did not introduce improper character evidence.
Appellant argues that the recorded call between O.H. and appellant was improper
character evidence admitted to “prove appellant ’s guilt by establishing his character as a
bully or controlling.” “Evidenc e of a person’s character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on a particular
occasion.” Minn. R. Evid. 404.
The recorded call shows that appellant atte mpted to direct O.H. on what to say to
police after the events on Janu ary 22. The state presented the recorded call as a prior
15
statement made by appellant. The recorded ca ll does not establish that appellant has any
character or trait that is consistent with his propensity to commit first-degree burglary with
assault-fear.
E. The state did not fail to disclose evidence of O.H.’s prior convictions.
Appellant asserts that the state failed to disclose O.H.’s prior convictions for crimes
of dishonesty in violation of Brady. Appellant’s claim lacks merit. First, the state claims
that “a records search of the court and BCA criminal records check . . . revealed no such
convictions,” and appellant presents no evidence of such crimes. Second, even if the state
failed to disclose O.H.’s convictions, the outco me of trial would not have been different
absent the error because O.H. was impeached through testimony at trial.
F. Appellant did not receive ineffective assistance of counsel.
Appellant asserts that he received ineffec tive assistance of counsel because his trial
attorney did not check O.H.’s criminal record prior to trial. There is no record of whether
or not appellant’s trial attorney researched O.H.’s criminal records prior to trial. Further,
additional impeachment evidence against O.H. would not have affected the outcome of the
trial. Accordingly, appellant’s claim is without merit.
Affirmed.