This opinion will be unpublished and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

A13-1408

State of Minnesota,

Respondent,

vs.

Alvin Lee Fitzgerald, Jr.,

Appellant.

Filed July 21, 2014

Affirmed

Reilly, Judge

Pennington County District Court

File No. 57-CR-12-504

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

Alan G. Rogalla, Pennington County Attorney, Kristin J. Hanson, Assistant County 

Attorney, Thief River Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant 

Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Ross, Judge; and Bjorkman, 

Judge. 

U N P U B L I S H E D O P I N I O N

REILLY, Judge

Appellant Alvin Fitzgerald appeals his conviction of third-degree burglary, 

arguing that the district court erred in its response to the jury’s questions during 
2

deliberation and that the prosecutor committed misconduct in her closing statement. 

Additionally, appellant raises several issues in his pro se supplemental brief. We affirm.

FACTS

Respondent State of Minnesota charged appellant by complaint with third-degree 

burglary, in violation of Minn. Stat. § 609.582, subd. 3 (2010), on June 18, 2012. The 

complaint alleged that appellant entered Speeds Auto Service in Thief River Falls without 

consent and stole $30 in change from a vending machine on June 14, 2012. A jury trial, 

held in April 2013, provided the following evidence.

On the night of June 14, 2012, Officer Chris Hoglin, a police officer with the City 

of Thief River Falls, received a call from dispatch notifying him of a suspicious person 

shaking the doors of McMullen Auto Sales. Dispatch indicated that the person 

subsequently walked toward a Kmart. When Officer Hoglin and another officer went to 

the scene, they stopped and talked with appellant, who was the only man walking in the 

Kmart parking lot. Appellant told the officers he was “passing through the area on foot”

from Grand Forks, North Dakota, on his way toward Badger, Minnesota, to see his 

daughter. After noticing a bulge larger than a baseball in appellant’s front pocket, Officer 

Hoglin patted down appellant and determined that appellant’s front pocket contained 

change that appellant claimed came from panhandling. Appellant’s rear pocket held a 

tire gauge, which appellant said he planned to disassemble later and use to smoke 

marijuana. When Officer Hoglin asked appellant “why he was shaking the door [at 

McMullen Auto Sales],” appellant responded that “he planned on buying a soda from the 

business.” Officer Hoglin replied that “there were no soda machines at that business.” 
3

After dispatch verified that appellant was who he said he was, Officer Hoglin released

appellant and followed him as he walked through town. Appellant walked west, which is 

not the direction of Badger.

Around 7:45 the next morning, Julie Efteland arrived for work at Speed’s Auto 

Service, a business adjacent to McMullen Auto Sales, in Thief River Falls, and saw that, 

although the building had been in “normal” condition when she left the previous 

afternoon around 5:00, it was now a mess. A vending machine in the reception area had 

been tampered with. The top part of the machine, which contained candy, was sitting in 

another room, and the door to the bottom part of the machine, which contained pop, had 

been pried open. Although the safe in the owner’s office had been tampered with, it had 

not been opened. Ms. Efteland noticed that the change from the vending machine that 

was kept in a bank bag and change stored in a beef jerky container was missing from her 

desk drawer. She estimated about $30 was missing from these containers and also noted 

“a couple bucks” missing from a breast cancer donation box. Greg Ornquist, the owner 

of Speed’s Auto Service and Ms. Efteland’s brother, estimated that between $30 and $50 

was missing.

When Mr. Ornquist arrived at Speed’s Auto Service about ten minutes later, he 

instructed Ms. Efteland to call the police. After she did, the two walked through the back 

of the shop where the cars awaiting repair are kept. They noticed the back door had been 

opened, either through “pr[ying]” or being “busted in,” and surmised that the burglar 

entered the business through the back door. Mr. Ornquist noted that a bottle of 

homemade wine sat on top of a laptop computer. None of the auto shop tools appeared to 
4

be missing, but some of the tools were damaged, apparently because they had been used 

to open the vending machine. Speed’s Auto Service usually has five to ten tire gauges, 

but Mr. Ornquist did not know whether one was missing.

Neither Ms. Efteland nor Mr. Ornquist remembered seeing appellant on June 14. 

Ms. Efteland testified that either she or Mr. Ornquist is present in the reception area when 

the business is open, and Mr. Ornquist testified that, if both of them are gone, the worker 

in the first auto stall can see into the reception area. Ms. Efteland and Mr. Ornquist both 

testified that they did not give appellant permission to enter Speed’s Auto Service and 

steal from them or damage their equipment.

Deputy Chief Craig Mattson of the Thief River Falls Police Department 

responded to the burglary complaint at Speed’s Auto Service and called a department 

investigator to process the scene. The investigator was able to obtain fingerprints from 

the back side of the vending machine and the bottle containing homemade wine, but she 

did not attempt to lift prints off of any of the tools that had been moved. A forensic 

scientist compared the fingerprints found at the scene with fingerprints taken from 

appellant. Of the eight prints the forensic scientist received, two were sufficiently 

detailed to compare with appellant’s fingerprints. The result of the comparison of one of 

the prints was inconclusive, but the forensic scientist identified the other print as a match 

to appellant’s right index finger. At trial, the forensic scientist testified that it is not 

uncommon for prints not to be present on a surface and that it is typically impossible to 

tell how old a latent print is.
5

Officer Hoglin arrested appellant without incident for the burglary at Speed’s Auto 

Service. The jury found appellant guilty of third-degree burglary on April 11, 2013, and 

appellant was subsequently sentenced. He now appeals.

D E C I S I O N

I.

Appellant argues that the district court erred when it referred the jury back to the 

original jury instructions rather than give supplemental instructions to clarify the jury’s 

questions. Appellant contends that the jury’s questions demonstrate that it was confused, 

and the court’s response did not correct that confusion.

In its original instructions, the district court read the following instruction for 

burglary in the third degree:

Burglary in the Third Degree – Defined. The statutes 

of Minnesota provide that whoever enters a building without 

the consent of the person in lawful possession and steals 

while in the building is guilty of a crime.

Burglary in the Third Degree – Elements. The 

elements of burglary in the third degree are: First, the 

defendant entered a building. A building is a structure 

suitable for affording shelter for human beings. Second, the 

defendant entered a building without the consent of the 

person in lawful possession. The entry does not have to have 

been made by force or by breaking in. Entry through an open 

or unlocked door or window is sufficient. Third, while in the 

building, the defendant stole. Fourth, the defendant’s act took 

place on or about June 14, 2012, in Pennington County, 

Minnesota. If you find that each of these elements has been 

proven beyond a reasonable doubt, the defendant is guilty. If 

you find that any element has not been proven beyond a 

reasonable doubt, the defendant is not guilty.
6

After deliberations had begun, the jury submitted two questions to the district 

court: “Is it illegal to come into a business during business hours[?]” and “Is [sic] #2 

mean during or after business hours[?]” Off the record, the district court discussed with 

the prosecutor and appellant’s attorney what an appropriate response might be. The 

district court responded by writing that “[y]our question seems to go to a question of fact 

that the court cannot answer. Sorry, but you will have to rely on the instructions as given 

and your recollection of the evidence.” Both attorneys agreed the district court’s

response was acceptable.

We review a district court’s decision to give additional instructions to a jury for an 

abuse of discretion. See State v. Laine, 715 N.W.2d 425, 434 (Minn. 2006) (“It is well 

established that the trial judge may, in his discretion, give additional instructions in 

response to a jury’s question on any point of law.” (quotation omitted)). In response to a 

jury’s question on a point of law, the district court may decide “to amplify previous 

instructions, reread previous instructions, or give no response at all.” State v. Murphy, 

380 N.W.2d 766, 772 (Minn. 1986); see Minn. R. Crim. P. 26.03, subd. 20(3)(a)-(f) 

(delineating the ways in which a district court may respond to a jury’s request for 

additional instructions during deliberation). The only real limitation placed on the trial 

court is that the additional instruction may not be given in such a manner as to lead the 

jury to believe that it wholly supplants the corresponding portion of the original charge,”

and additional instructions clarifying the original instructions may be appropriate if a jury 

is confused. Murphy, 380 N.W.2d at 772.
7

Because appellant did not object to the district court’s response, we review the 

district court’s response for plain error. See State v. Moore, 846 N.W.2d 83, 90 (Minn. 

2014) (noting an appellate court has discretion to review an unobjected-to instruction if it 

constitutes plain error affecting substantial rights). “Under the plain-error test, an 

appellant must show that there was (1) an error; (2) that is plain; and (3) the error must 

affect substantial rights.” State v. Vang, ___ N.W.2d ___, 2014 WL 1805320, at *7

(Minn. 2014). If all three prongs of the plain-error test are met, “we then assess whether 

the error should be addressed to ensure the fairness and the integrity of the judicial 

proceedings.” Gulbertson v. State, 843 N.W.2d 240, 247 (Minn. 2014).

After consultation with both parties’ counsel, the district court here told the jury 

that the question related to a factual matter upon which it could not comment. This is a 

permitted response under the Minnesota Rules of Criminal Procedure. See Minn. R. 

Crim. P. 26.03, subd. 20(3)(d) (“The court may tell the jury that the request is a factual 

matter that the jury, not the judge, must determine.”). Appellant argues this response was 

erroneous because the jury was clearly confused, and the district court’s response did not 

correct the confusion.

Minnesota law provides that “[w]hoever enters a building while open to the 

general public does so with consent except when consent was expressly withdrawn before 

entry.” Minn. Stat. § 609.581, subd. 4 (2010). Appellant contends that the district court 

erred by failing to correct the jury’s misunderstanding that entering a business during 

business hours cannot constitute burglary. We disagree.
8

Appellant has not shown that the district court’s instruction was error because the 

evidence presented at trial provides no factual basis from which a jury could find that a 

crime was committed during business hours. The testimony presented at trial shows that 

the vending machine had not been tampered with before Ms. Efteland left work on 

June 14 around 5:00 p.m., and that, when she returned to work the following morning, the 

vending machine had been broken into and change had been stolen from it. Both Ms. 

Efteland and Mr. Ornquist testified that they did not see appellant on June 14, 2012. 

Although the record does not contain evidence indicating Speed’s Auto Service’s normal 

operating hours, the record shows that the burglary occurred sometime after Ms. Efteland 

left Speed’s Auto Service around 5:00 and before she returned the next morning. And 

although appellant’s counsel argued in closing that appellant’s fingerprints on the candy 

machine were the result of appellant visiting Speed’s Auto Service during business hours 

in an attempt to purchase some soda, this visit would have occurred during business 

hours and at a time when the money from the vending machine had not yet been stolen. 

Whoever stole the money from the vending machine did so when Speed’s Auto Service 

was closed to the public. Therefore, the jury’s question of whether a person may legally 

enter a business during business hours is not related to whether the state had proven the 

second element of burglary, that appellant entered Speed’s Auto Service without consent.

Appellant cites State v. Shannon, 514 N.W.2d 790, 793 (Minn. 1994), for the 

proposition that “it is prejudicial error for a district court to respond to a jury request for 

clarification by refusing to correct the confusion” when “the jury is ‘obviously 

confused.’” While this may be true, the facts of Shannon differ in an important respect 
9

from those in appellant’s case. In Shannon, the prosecutor misstated the law during 

closing argument by improperly calling heat-of-passion manslaughter “heat of passion 

murder” and told the jury that, in evaluating whether the elements of heat-of-passion 

manslaughter had been met, it must use the “reasonable person . . . who wasn’t on drugs 

or wasn’t taking alcohol” standard. Id. at 791-92. When the jury asked questions during 

deliberation that went to whether being under the influence of chemicals was a factor in 

determining what a reasonable person would have done in the situation, the district court 

responded by referring the jury back to the original instructions. Id. at 792. On appeal, 

the Minnesota Supreme Court reasoned that the jury’s questions were “presumably . . . a 

result of the prosecutor’s misleading statement in closing argument” and concluded the 

district court’s failure to correct the confusion about the proper standard was prejudicial 

error. Id. at 792-93. Shannon therefore is distinguishable because the jury’s confusion 

there arose from misstatements made by the prosecutor during closing statement. Such is 

not the case here.

Because the evidence admitted at trial does not lend any support for a factual 

finding that the theft from the vending machine occurred during business hours and the 

prosecutor did not misstate the law, the district court’s response, which referred the jury 

back to its original instructions, is not erroneous.

II.

Appellant contends that certain statements in the prosecutor’s closing argument 

constitute prosecutorial misconduct. Before voir dire began, appellant’s counsel 

requested that law enforcement testimony about its interaction with Jennifer McMullen, 
10

the woman who initially called law enforcement on June 14, be limited to describing 

“receiving a call about suspicious activity and [law enforcement’s] response to that call” 

because Ms. McMullen would not be testifying at trial. The prosecutor stated that law 

enforcement’s testimony regarding Ms. McMullen “would be just based on what the 

dispatch reports . . . and not anything she says directly to them,” unless the defense 

“open[ed] the door” by asking why law enforcement stopped appellant.

Officer Hoglin testified that “[d]ispatch received a call from McMullen Auto Sales 

that said they had somebody who appeared to be getting into their building shaking 

doors.” He also testified later that, in response to his question of why appellant was 

shaking the door, appellant stated that he planned to buy a soda. In her closing argument, 

the prosecutor told the jury, “We didn’t see Mr. Fitzgerald in Speed’s Auto. He’s found 

adjacent from Speed’s Auto pulling on the door of another business. That’s 

circumstantial evidence.” A short time later, she stated,

The [finger]print is in the exact place you would want to find 

a print to be when this [vending] machine has been moved. 

That’s the night before and with all the circumstantial 

evidence this is not a coincidence. It’s not a coincidence that 

Mr. Fitzgerald was in the same place a burglary took place, 

pulling on a door.

Appellant did not object to these statements at trial.

When a defendant fails to object, we review alleged prosecutorial misconduct for 

plain error. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Once an appellant 

shows an error that is plain, however, the burden shifts to the state to prove that no 
11

reasonable likelihood exists that the absence of the misconduct would have a significant 

effect on the jury’s verdict. Id.

“[A] police officer testifying in a criminal case may not, under the guise of 

explaining how the investigation focused on defendant, relate hearsay statements of 

others.” State v. Litzau, 650 N.W.2d 177, 182 (Minn. 2002) (quotations omitted). It is 

plain error for a prosecutor, in closing statement, to “invite[] the jury” to use a 

defendant’s suppressed statement, admitted only for impeachment purposes, as 

substantive evidence. State v. Radke, 821 N.W.2d 316, 329 (Minn. 2012). Although

Officer Hoglin testified only that dispatch received a call about “somebody” shaking the 

doors at McMullen Auto Sales, the prosecutor, in her closing statement, added that the 

person shaking the doors was appellant. Were the prosecutor’s statements in closing 

argument the only statements linking appellant to the person shaking the doors of 

McMullen Auto Sales, appellant would have a strong argument that the prosecutor 

committed misconduct. But Officer Hoglin also testified that appellant told him he shook 

the doors in an attempt to purchase a soda, and that statement is not hearsay. See Minn. 

R. Evid. 801(d)(2)(A) (defining a statement made by a party and offered against that 

party as nonhearsay). The prosecutor did not violate the agreement made with defense 

counsel not to admit the hearsay testimony of Ms. McMullen through the testimony of 

Officer Hoglin but instead referenced appellant’s own statements to Officer Hoglin. The 

statements the prosecutor made in her closing argument were not erroneous and do not 

constitute prosecutorial misconduct. There is no need to address the other prongs of 

Ramey because appellant has shown no error.
12

III.

Appellant alleges several reversible errors in his pro se supplemental brief. None 

are meritorious.

Confrontation Clause

Appellant contends that he was denied a fair trial when the prosecutor failed to call 

Ms. McMullen to testify as to what she told the dispatch officer and thereby violated the 

Confrontation Clause. Because appellant did not raise this issue below, we review for 

plain error. See Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 

1998) (stating test for plain error). 

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

with the witnesses against him.” U.S. Const., amend. VI. The Confrontation Clause 

“prohibits ‘admission of testimonial statements of a witness who did not appear at trial 

unless he was unavailable to testify, and the defendant had a prior opportunity for crossexamination.’” State v. Warsame, 735 N.W.2d 684, 689 (Minn. 2007) (quoting Crawford 

v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365 (2004)). A statement is 

nontestimonial “when made in the course of police interrogation under circumstances 

objectively indicating that the primary purpose of the interrogation is to enable police 

assistance to meet an ongoing emergency.” Davis v. Washington, 547 U.S. 813, 822, 126 

S. Ct. 2266, 2273 (2006). Moreover, “the Confrontation Clause does not bar the use of 

testimonial statements for purposes other than establishing the truth of the matter 

asserted.” State v. Hull, 788 N.W.2d 91, 100 (Minn. 2010) (quotation omitted). Whether 
13

the admission of evidence violates a defendant’s confrontation rights is a question of law 

reviewed de novo. Warsame, 735 N.W.2d at 689.

Here, the facts indicate that Ms. McMullen called the police as she was observing 

a person shaking the doors of McMullen Auto Sales. The purpose of her call was to 

enable police to respond to a possible criminal event—a person attempting to break into 

McMullen Auto Sales. Ms. McMullen’s call is analogous to the 911 call in State v. 

Wright, 726 N.W.2d 464, 473-74 (Minn. 2007), where the Minnesota Supreme Court 

concluded that the portions of a 911 call made while a domestic abuser had yet to be 

apprehended were nontestimonial because the caller was not acting as witness by calling 

police to obtain assistance during an ongoing emergency. Because Ms. McMullen’s call 

was nontestimonial in nature, it does not implicate appellant’s Confrontation Clause 

rights. Even if the statement were testimonial, however, Officer Hoglin’s testimony 

regarding the call was not offered to prove the truth of the matter asserted and therefore 

did not violate appellant’s confrontation rights. See Hull, 788 N.W.2d at 100. The 

district court did not err in admitting the testimony.

Hearsay

Appellant argues that the district court erred in admitting statements regarding the 

contents of the dispatch call. We review a district court’s evidentiary rulings for abuse of 

discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). When a defendant fails to 

object to the admission of evidence, our review is under the plain-error standard. See 

Griller, 583 N.W.2d at 740.
14

As noted above, hearsay is an out-of-court statement offered to prove the truth of 

the matter asserted, Minn. R. Evid. 801(c). A statement made by a party and offered 

against that party at trial is not hearsay, Minn. R. Evid. 801(d)(2)(A). Although appellant 

is correct that testimony about what Ms. McMullen said to the dispatch operator, if not 

made in court and by Ms. McMullen herself, would constitute hearsay if offered to prove 

the truth of what Ms. McMullen told the dispatch officer, such testimony is not on the 

record. Ms. McMullen did not testify, and Officer Hoglin mentioned the dispatch call to 

show why police were called to the scene, not to prove the truth of the dispatch caller’s 

statements. Moreover, the statements appellant made to Officer Hoglin in response to his 

question of why appellant was shaking the doors are not hearsay because the Minnesota 

Rules of Evidence expressly define statements of a party-opponent as nonhearsay. Minn. 

R. Evid. 801(d)(2)(A). The district court did not abuse its discretion by admitting these 

statements because they do not constitute hearsay.

Ineffective Assistance of Counsel

Finally, appellant contends he received ineffective assistance of counsel because 

his attorney did not subpoena Ms. McMullen to testify and did not object to allegedly 

inadmissible hearsay evidence or the prosecutor’s alleged violation of his rights under the 

Confrontation Clause. As appellant has not made any postconviction motions, he raises 

this argument for the first time on appeal.

We generally analyze ineffective-assistance-of-counsel claims as trial errors under 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Dereje v. State, 837 

N.W.2d 714, 721 (Minn. 2013). Under that analysis, “an appellant must demonstrate that 
15

counsel’s performance fell below an objective standard of reasonableness, and that a 

reasonable probability exists that the outcome would have been different but for 

counsel’s errors.” State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003) (quotation 

omitted). Trial counsel’s performance is presumed reasonable. Schneider v. State, 725 

N.W.2d 516, 521 (Minn. 2007).

Appellant’s pro se supplemental brief shows a general dissatisfaction with the fact 

he was convicted. He appears to believe that, but for his attorney’s failure to call Ms. 

McMullen to testify, he would not have been convicted. “Decisions about which 

witnesses to call at trial and what information to present to the jury are questions of trial 

strategy that lie within the discretion of trial counsel.” Leake v. State, 737 N.W.2d 531, 

539 (Minn. 2007). We generally will not review an ineffective-assistance-of-counsel 

claim based on trial strategy. Vang, ___ N.W.2d ___, 2014 WL 1805320, at *12. 

Appellant has not shown that counsel’s decision not to subpoena Ms. McMullen was not 

a strategic decision, and we conclude counsel’s performance was objectively reasonable.

Appellant also asserts that he received ineffective assistance of counsel because 

his trial attorney did not object to alleged inadmissible hearsay statements and violations 

of the confrontation clause. “Decisions about objections at trial are matters of trial 

strategy.” Leake, 737 N.W.2d at 542 (citing White v. State, 711 N.W.2d 106, 110 (Minn. 

2006)). The discussion above shows that appellant is incorrect on the law regarding 

hearsay. Appellant has failed to show that counsel’s performance with respect to 

evidentiary objections fell below an objective standard of reasonableness, and we 

conclude counsel’s actions were objectively reasonable.
16

Additionally, the trial transcript contradicts appellant’s assertions that his attorney 

was not representing his interests. Appellant’s counsel thoroughly cross-examined all the 

state’s witnesses and offered reasonable arguments for appellant’s innocence in his 

opening and closing statements. Appellant’s contention that his counsel was ineffective 

is based on appellant’s own misunderstanding of the law. After a thorough review of the 

record in this case, we conclude that appellant did not receive ineffective assistance of 

counsel.

Affirmed.