A17-0853

This opinion will be unpublished and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
A17-0852
A17-0853

State of Minnesota,
Respondent,

vs.

Daniel Howard Stanke,
Appellant.

Filed April 9, 2018
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-16-3233

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Rodenberg, Presiding Judge; Bjorkman, Judge; and
Smith, Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Daniel Stanke argues that his co nviction of third-degree criminal damage
to property must be reversed because the distri ct court failed to give the jury a specific-

2
unanimity instruction. He also argues his sentence must be modified because the district
court incorrectly calculated restitution. Becau se a specific-unanimity instruction was not
required, and because the dist rict court did not abuse its discretion in determining
restitution, we affirm.
FACTS
In 2015, Stanke lived with M.S. in a house owned by ab sentee-landlord C.S. On
December 20, Stanke b ecame upset when he suspected th at M.S. was stealing his food
from the refrigerator. As a result, Stanke be gan throwing food around the house. M.S.
called C.S. and then, based on C.S.’s instruc tions, called the police. When the police
arrived, they spoke with M.S. and Stanke, but then left after Stanke told them they would
“get no more problems out of him.”
Stanke went to his downstairs room. M.S. then began hear ing banging sounds
coming from downstairs. M.S. again called th e police, and, when they arrived, they
observed condiments all over the couch on the main floor, as well as damage to the drywall
and door molding in the basement.
As a result of the damage to the couch an d basement, Stanke was charged with first-
degree criminal damage to property. At trial, the state presented evidence that it cost $628
to repair the damaged drywall, $500 to replac e the couch, and $120 to clean condiments
off the walls and floor. In his defense, St anke denied damaging both the couch and
basement and claimed that he was the owner of the couch. Based on these defenses, the
state requested lesser-included-offense instruc tions for third-degree criminal damage to
property (damage between $500 and $999). The court included instructions for both third-

3
degree criminal damage to property and f ourth-degree criminal damage to property
(damage of less than $500). The court instru cted the jury, “In order for you to return a
verdict, whether guilty or not guilty, each juror must agree with the verdict. Your verdict
must be unanimous.” The jury found Stanke guilty of third-degree criminal damage to
property.
C.S. requested $2,091.57 in restitution. At a contested restitution hearing, Stanke
argued that, because the jury had found him not guilty of first-degree criminal damage to
property, the court was limited to awarding $999.99 in restitution. Stanke further argued
that any restitution should be offset by a security deposit of $700. However, C.S. testified
that he had never received any s ecurity deposit. The district court ordered Stanke to pay
$999 in restitution.
Stanke separately appealed his convic tion and the restitution order. This court
consolidated the appeals.
D E C I S I O N
I. The district court did not err when it did not give the jury a specific-unanimity
instruction.

Stanke argues the district court erred by not giving the jury a specific-unanimity
instruction. Because Stanke di d not request such an instruc tion at trial, we review the
matter for plain error. See State v. Webster, 894 N.W.2d 782, 786 (Minn. 2017). To obtain
relief, Stanke must show “(1) an error, (2) that was plain, and (3) that affected the
defendant’s substantial rights. If we conclude that any of the requirements of the plain-
error doctrine are not satisfied, we need not consider the others.” Id. (citation omitted).

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“Jury verdicts in all criminal cases must be unanimous.” State v. Pendleton , 725
N.W.2d 717, 730 (Minn. 2007). “To achieve th at end, a jury must unanimously find that
the government has proved each element of the offense.” Id. at 730-31 (quotation omitted).
However, the jury need not unanimously agree on each element’s underlying facts so long
as the differing factual circumstances show “e quivalent blameworthiness or culpability.”
Id. at 731 (quotation omitted).
Stanke argues that it was error for the district court not to instruct the jury that it had
to unanimously agree on which property was da maged (a specific-unanimity instruction).
This is so, according to Stanke, because “the State presented evidence of two distinct acts
and two separate pieces of property that were damaged—the upstairs couch and the
basement walls.” Stanke analogizes this case to State v. Stempf , in which this court
concluded that the district court erred by fa iling to give a specific- unanimity instruction
when the state charged a single count of fift h-degree controlled-substance crime but then
argued to the jury that “it could convict if some jurors found a ppellant possessed the
methamphetamine found in the truck while others found he possessed the
methamphetamine found on the premises [of his employmen t].” 627 N.W.2d 352, 354
(Minn. App. 2001).
We reject Stanke’s comparison to Stempf. In our view, Stanke’s behavior is more
akin to that of the defendant in State v. Infante, 796 N.W.2d 349 (Minn. App. 2011). In
Infante, the defendant was charged with one count of second-degree assault after he put a
gun to the victim’s head, left, sent the victim four threatening voicemails over the next two
hours, returned, and then sat in front of the victim while “methodically loading” a revolver.

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Id. at 352. During its closing argument, the st ate argued that the defendant had assaulted
the victim twice, “with two separate weapons, both of them loaded.” Id. at 353. The
defendant did not object to this argument, nor did he request a specific-unanimity
instruction, and such an instruction was not given. Id. In reviewing the jury instructions,
this court found no error. Id. at 355. Rather, we conclude d that, because the defendant’s
“two actions occurred at the sa me place and involved the same victim,” “occurred over a
short period of time,” and “shared a single crim inal goal,” they constituted a single
behavioral incident, for which a specific- unanimity instruction was not required. Id. at
357.
Here, as in Infante, Stanke’s actions occurred at th e same place and involved the
same victim. They occurred over a short period of time and shared the same criminal goal
of damaging C.S.’s property. On these fact s, we conclude that no specific-unanimity
instruction was required. Because the distri ct court did not err in not giving a specific-
unanimity instruction, we do not address the remaining factors of the plain-error test.
II. The district court did not abuse its discretion when it awarded $999 in
restitution.

In his pro se brief, Stanke argues the dist rict court erred by failing to factor in his
security deposit when determinin g restitution. “A district court has broad discretion to
award restitution, and the district court’s order will not be reversed absent an abuse of that
discretion. The district court’s factual findings will not be disturbed unless they are clearly
erroneous.” State v. Andersen, 871 N.W.2d 910, 913 (Minn. 2015) (citation omitted). The
state must prove the amount of restitution due by a preponderance of the evidence, and the

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district court is “not bound by the jury’s verdict” in doing so. State v. Terpstra, 546 N.W.2d
280, 283 (Minn. 1996).
At the restitution hearing, the state presented evidence that C.S. had never received
a security deposit. Although Stanke argued that he had a check proving there was a security
deposit, the check was never offered into evidence. Given C.S.’s testimony that he never
received a security deposit, contravened only by Stanke’s assertion that he did give C.S. a
deposit, the district court was entitled to ma ke a credibility determination and find that
there was no security deposit. We defer to that determination and conclude that the district
court did not abuse its discretion in refusing to deduct $700 from the amount of restitution.1
III. Stanke’s remaining pro se arguments ar e forfeited due to inadequate briefing.

In his pro se brief, Stanke also argues that witnesses committed perjury and that the
victim engaged in witness tamp ering. “[P]ro se litigants ar e generally held to the same
standards as attorneys . . . .” State v. Fellegy, 819 N.W.2d 700, 704 (Minn. App. 2012),
review denied (Minn. Oct. 16, 2012). “Arguments ar e forfeited if they are presented in a
summary and conclusory form, do not cite to applicable law, and fa il to analyze the law

1 We note that Stanke did incl ude photos of several checks in his pro se brief; however,
“[i]t is well settled that an appellate court may not base its decision on matters outside the
record on appeal, and that matters not prod uced and received in evidence below may not
be considered.” State v. Little , 851 N.W.2d 878, 885 (Minn. 2014) (quotation omitted);
see also Minn. R. Civ. App. P. 110.01 (“The documents filed in the trial court, the exhibits,
and the transcript of the proceedings, if any, shall constitute the reco rd on appeal in all
cases.”). Moreover, even if we were to consider the ch ecks, they would not substantiate
Stanke’s claim that the district court abused its discretion. The memo on the check Stanke
claims was for a security deposit, check 1123, indicates that it was for “rent,” which is
identical to the other “rent” checks included in his brief, as opposed to “security deposit”
or any other phrase of a similar nature.

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when claiming that errors of law occurred.” State v. Bursch, 905 N.W.2d 884, 889 (Minn.
App. 2017). Stanke provides nothing from the record, nor any legal analysis, in support of
these arguments in his pro se brief. Moreov er, we discern no obvi ous error based on our
inspection of the record. See State v. Wembley, 712 N.W.2d 783, 795 (Minn. App. 2006)
(holding that unsupported assignments of erro r are forfeited “unless prejudicial error is
obvious on mere inspection”), aff’d, 728 N.W.2d 243 (Minn. 2 007). Stanke’s arguments
are therefore forfeited, and we do not address them.
Affirmed.