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This opinion will be unpublished and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
A17-0241

State of Minnesota,
Respondent,

vs.

Alvin Lee Fitzgerald, Jr.,
Appellant.

Filed January 2, 2018
Affirmed
Schellhas, Judge

Pennington County District Court
File No. 57-CR-15-184

Lori Swanson, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Alan G. Rogalla, Pennington County Atto rney, Thief River Falls, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, John Donovan, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Pr esiding Judge; Schellhas, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant seeks reversal of his convictions of third-degree burglary, motor-vehicle
theft, and theft and a new trial, arguing that the district court committed plain error affecting

2
appellant’s substantial rights by not striking the testimony of the state’s DNA analyst.
Appellant also complains of additional errors in his pro se supplemental brief. We affirm.
FACTS
On the morning of July 9, 2014, M.S. discovered a broken window at his car-repair
shop and that he was missing cash and a tr uck. Police from Thief River Falls responded,
and Investigator Marissa Adam surveyed the scene and swabbed blood from the broken
window. The owner of a gas station across the street allowed Investigator Adam and M.S.
to view the station’s surveillance-video foot age, gave a copy of th e video to M.S., and
supplied the investigator and M.S. with still photos from the surveillance video.1
The video-surveillance still photos depict a man buying a bottle of soda at the gas
station on the night of July 8, 2014. From viewing the still photos, M.S.’s son spotted the
man in town, and M.S. called the police. On July 10, Officer Vern Wittenberg approached
appellant Alvin Fitzgerald and informed him that he was a suspect in a robbery case.
Officer Wittenberg reviewed Fitzgerald’s identification and noticed and commented about
cuts on Fitzgerald’s hand and arm. Fitzgerald said that he had punched a tree. Officer
Wittenberg did not detain Fitzgerald.
On July 14, 2014, Inves tigator Adam swabbed blood on the recovered truck’s
steering wheel and delivered it, along with th e bloodied broken window glass, to the
Minnesota Bureau of Criminal Apprehension (BCA). The DNA profiles of the blood from
the steering wheel and broken glass matched, and when run through the convicted-offender

1 The state never possessed the surveillance video and did not offer it into evidence at trial
because it could not be located.

3
DNA database, the DNA profiles from the bloo d swabs also matched Fitzgerald’s DNA
profile.
In December 2014, South Carolina law-enfo rcement authorities arrested Fitzgerald
on a Minnesota fugitive warrant, and he was returned to Minnesota.2 Respondent State of
Minnesota charged Fitzgerald with third-degree burglary, motor-vehicle theft, and theft.
Fitzgerald moved the district court to di smiss the charges on th e grounds that the
charges lacked probable cause, the state failed to preserve evidence, and his speedy-trial
rights were violated. He also moved to suppress his statements made to Officer Wittenburg.
The district court denied all of Fitzgerald’s motions. Fitzgerald waived his right to counsel
and to a jury trial and proceeded to trial pro se with the appointment of advisory counsel.
The district court found Fitzgerald guilty of all charges, denied his motion for a new trial,
and imposed concurrent guidelines sentence s for third-degree burglary, motor-vehicle
theft, and theft.
This appeal follows.
D E C I S I O N
DNA analyst’s testimony
Appellate courts review admissibility of expert testimony for an abuse of discretion.
State v. Thao, 875 N.W.2d 834, 840 (Minn. 2016). The fact-finder at trial—here, the district
court—evaluates the strength of the DNA expert’s opinion based on the “confidence in the
opinion and in part on the underlying statistical foundation for the opinion.” State v. Bloom,

2 At the time, Fitzgerald was on supervised release from the Minnesota Department of
Corrections in connection with a third-degree burglary conviction.

4
516 N.W.2d 159, 168 (Minn. 1994). Here, the DNA analyst testified that she used the
STR/PCR testing method to analyze the vari ous DNA samples. The supreme court views
STR/PCR3 testing of DNA as foundationally reliable. State v. Traylor, 656 N.W.2d 885,
897–98 (Minn. 2003). The DNA analyst used the word “matched” during her testimony
and provided foundation for her opinion after offering it.
Fitzgerald argues that the DNA analyst’s re peated use of the word “matched” and
the admission of her opinion that the DNA sa mples from the steering wheel and broken-
window glass matched Fitzgerald’s DNA before providing foundation for that opinion
constituted plain error that affected Fitzgerald’s substantial rights to a fair trial. Fitzgerald
also contends that the analyst’s “explana tion of the probability of another profile
resembling Fitzgerald’s did not use actual numbers or statistics, instead employing a
confusing and nebulous basis for her opinion.”4 In Bloom, the supreme court stated that a
“DNA expert should be allowed to express the opinion that there is a ‘match’ between [a]
defendant’s DNA profile and that left by the a ssailant at the scene or on a victim.” 516
N.W.2d at 168. The supreme court explaine d that “this sort of verbal, qualitative, non-
statistical presentation of the underlying statistical evidence will lead to mo re agreement
among reputable experts at trials and may decrease the likelihood of there being a battle of
experts.” Id.

3 The acronym stands for short tandem repeat/polymerase chain reaction.
4 At the omnibus hearing, the district court admitted the analyst’s reports that contained
statistical foundation for her op inion, but for reasons not apparent in the record, the state
did not offer those reports at trial.

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Here, Fitzgerald failed to object to either the analyst’s testimony or the district
court’s admission of the analyst’s reports. Fa ilure to object to th e admission of evidence
constitutes a forfeiture of the issue. See State v. Lilienthal, 889 N.W.2d 780, 784−85 (Minn.
2017) (concluding that forfeitu re applied when defendant fa iled to object at trial to
admission of testimony); see also State v. Beaulieu , 859 N.W.2d 275, 278 (Minn. 2015)
(“A constitutional right, or a right of any other sort, may be forfeited in criminal . . . cases
by the failure to make timely assertion of the right before a tribunal having jurisdiction to
determine it.” (quotation omitted)), cert. denied, 136 S. Ct. 92 (2015). A “[p]lain error
affecting a substantial right can be considered by the court . . . on appeal even if it was not
brought to the [district] court’s attention.” Minn. R. Crim. P. 31.02.
We do not excuse Fitzgerald’s failure to obj ect merely because of his pro se status
at trial. Minn. R. Gen. Pract. 1.04 (“Whenever these rules require that an act be done by a
lawyer, the same duty is required of a sel f-represented litigant.”). We conclude that
Fitzgerald has forfeited his arguments about the DNA analyst’s testimony and we therefore
do not conduct a plain-error analysis of Fitzgerald’s claims on appeal.
Regarding the order in wh ich the analyst offered her opinion, we note that
Fitzgerald offers no legal auth ority to support his argument th at the court’s admission of
the analyst’s “DNA-match” testimony in advanc e of the statistical foundation was plain
error, and we are aware of no such authority.
Pro se arguments
Fitzgerald raises several pro se arguments, claiming that the district court committed
plain error that violated his right to a fair trial. As above noted, failure to object to the

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admission of evidence constitutes a forfeiture of the issue. See Lilienthal, 889 N.W.2d at
784−85 (concluding that forfeiture applied when defendant failed to object at trial to
admission of testimony). If an appellant’s pro se supplemental brief fails to include an
argument or citation to legal authority, the pro se claims are forfeited. State v. Krosch, 642
N.W.2d 713, 719 (Minn. 2002). We address Fitzgerald’s arguments but not necessarily in
the order in which they appear in his pro se brief, and, because we are not a fact-finding
court, we do not consider any factual allegations advanced by Fitzgerald in his pro se
supplemental brief that he did not advance at trial. See Wright Elec., Inc. v. Ouellette, 686
N.W.2d 313, 324 (Minn. App. 2004) (stating “this court cannot serve as the fact-finder”),
review denied (Minn. Dec. 14, 2004). We describe F itzgerald’s arguments to the best of
our ability, noting that many of them are inte rtwined with his ongo ing concern about the
state not producing a copy of the gas-station surveillance video.
Fitzgerald argues that the district court erred by not dismissing the charges against
him because the state committed Brady, due-process, and discovery violations by failing
to obtain and provide him a copy of the gas- station surveillance video. “The State has a
duty to preserve evidence th at it collects during the investigation of a crime.” State v.
Nissalke, 801 N.W.2d 82, 110 (Minn. 2011). “When the State loses, destroys, or otherwise
fails to preserve material evidence, a defe ndant’s due process rights are implicated.” Id.
(quotation omitted). But the state has no duty to preserve evidence that it does not collect
during an investigation and that it does not possess. See Minn. R. Crim. P. 9.01, subd. 1(6)
(requiring prosecutor to disclose “[m]aterial or information in the prosecutor’s possession
and control that tends to ne gate or reduce the defendant’s guilt”). Fitzgerald’s argument

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fails because the state neith er collected, possessed, nor controlled the gas-station
surveillance video.
Fitzgerald challenges probable cause for a search warrant that was executed at his
tent residence. The state obtained no evidence as a result of executing the warrant. 5 We
therefore do not address the sufficienc y of probable cause for the warrant. Cf. State v.
Horst, 880 N.W.2d 24, 36 (Minn. 2016) (refusing to decide whether a search warrant was
overly broad because “there would be nothing to suppre ss” because the challenged
evidence was not admitted at trial).
Fitzgerald argues that the district court erred by concluding that he was not in
custody for purposes of Miranda when Officer Wittenberg questioned him. We conclude
that the district court correctly found that Fitzgerald was not in custody for purposes of
Miranda when Officer Wittenberg questioned him. The questioning occurred on a public
street; Officer Wittenberg never told Fitzge rald he was under arrest; Officer Wittenberg
did not restrain Fitzgerald and only briefly questioned him; and Fitzgerald freely walked
away after asking if he could leave. Based on these circumstances, no “reasonable person
under the circumstances would believe that he or she was in police custody of the degree
associated with formal arrest.” See id. at 30−31.

5 The district court stated in its findings of fact that “[Fitzgerald’s] claim that [Investigator
Adam] obtained blood swabs from [Fitzgerald ’s] tent at the time [Investigator Adam]
searched it and that [Investigator Adam] sent these swabs to the [BCA] for testing instead
of the swabs [Investigator Adam] obtained from the glass at [the car-repair shop] and the
steering wheel of [the recovered truck] is not credible.”

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Fitzgerald argues that the district court abused its discretion by allowing witnesses
to testify about what they saw on the gas-station surveillance video, and that the prosecutor
committed misconduct by referencing the gas-st ation surveillance video in its written
closing argument. Fitzgerald di d not object to this testimony or the prosecutor’s closing
argument at trial and therefore forfeited the i ssues. We therefore do not conduct a plain-
error analysis of these issues on appeal.
Fitzgerald’s pro se issues that we have analyzed are not persuasive. We affirm
Fitzgerald’s convictions.
Affirmed.